The transcript of today’s argument in Entergy Corp. v. EPA (07-588) is now available here.

The transcript of today’s argument in Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125) is now available here.

Analysis

It is it entirely possible that a Supreme Court case could be lost because the original lawsuit that started it all was not better prepared, or asked too little.  Whether that has happened this time was the issue that lingered in the courtroom Tuesday as the Justices heard Fitzgerald, et al., v. Barnstable School Committee, et al. (07-1125) — an important case on the remedies available to school children and their parents if a pupil is sexually intimidated by another pupil.

The Court, or at least most of the Justices who spoke out, seemed to want to resolve the legal issue at stake: when Congress passed Title IX to deal with sex bias at federally funded schools (and colleges), did it intend to wipe out any constitutional claim of sex bias at those schools?  That is the question the Court had granted and, as Justice Antonin Scalia suggested several times, why not decide it now?

The reason, of course, was that several members of the Court seemed troubled that the original complaint filed in federal court in Boston may have been too spare, or perhaps too opaque in what it was seeking.  At one point, in fact, Justice Stephen G. Breyer wondered whether the Court should simply dismiss this case as one that should not have been granted “and wait until somebody does this again.”

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The Supreme Court ruled Tuesday that a conviction based on jury instructions containing more than one theory of guilt, with one of those theories invalid, is to be judged on whether that was harmless error. That is not to be treated as a “structural error” that undermines the verdict itself, the Court concluded in Hedgpeth v. Pulido (07-544).  The Court was unanimous in that part of the ruling, but the decision to send the case back to the Ninth Circuit Court for harmless error analysis drew the dissents of three Justices.

The Court’s opinion was unsigned (that is, it was “Per Curiam,” or “by the Court”), and was announced by Chief Justice John G. Roberts, Jr.  It was the only decision of the day.

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The Court has released an opinion in Hedgpeth v. Pulido (07-544), on whether, during habeas review, federal courts may determine erroneous instructions on which the jury may have relied to constitute “structural error” requiring reversal.  The ruling below, which found for the habeas petitioner, is vacated and remanded. The per curiam opinion is available here. Justice Stevens issued a dissenting opinion, which was joined by Justices Souter and Ginsburg.

At 10 a.m., the Court may issue one or more opinions in pending cases. We will provide coverage of any developments.

Following the announcement of any rulings, the Court will hear argument in Entergy Corp. v. EPA (07-588) and two consolidated cases, on the regulation of cooling water intake structures under the Clean Water Act. Deputy Solicitor General Daryl Joseffer will argue for the EPA in support of the petitioners; Maureen Mahoney of Washington, D.C., will argue for the petitioner; and current Harvard Law School professor Richard Lazarus will argue for the respondent.

At 11 a.m., the Court will hear argument in Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125), on whether the passage of Title IX barred future constitutionally based gender discrimination claims against federally funded schools. Charles Rothfeld of Washington, D.C., will argue for the petitioner, and Kay Hodge of Boston will argue for the respondent.

We will post links to transcripts of the arguments as soon as they are available.

Today we’re filing our merits reply brief in Cone v. Bell, which I’ll argue next Tuesday.  The case involves a question of procedural default on habeas corpus and a claim under Brady v. Maryland.  The other briefs in the case — including the State’s merits brief — are available over at SCOTUSwiki.  The Stanford Law School clinic team members are Ruthie Zemel, Jessica Oats, and David Muraskin.  Our co-counsel Paul Bottei also worked closely with us.

The transcript of today’s argument in Kansas v. Colorado (105, Orig.) is now available here.

The transcript of today’s argument in 14 Penn Plaza LLC v. Pyett (07-581) is now available here.

I expect that the Court will hear argument in 76 cases this Term (deciding 75, given the dismissal of Bell v. Kelly (07-1223)).  Thus far, the Justices have granted certiorari in 65 cases.From October to January, the Court scheduled a total of 50 cases for argument.  That is a high number because the Court “frontloaded” its argument calendar, scheduling afternoon arguments in October, November, and January.

Fifteen granted cases remain to be scheduled for argument.  The Court has two conferences remaining — December 5 and 12 (click here for our list of petitions to watch) — for which the granted cases can be briefed in time for argument in the March sitting.  Those conferences are likely to produce roughly five grants (bringing the total to 70).  So, the Court is likely to have approximately twenty cases available for the twelve combined days of the February and March sittings.  One approach to the calendar that would not involve canceling any argument days in March would be to hear eleven cases in February (five days with two arguments, and a final day with one argument) and nine cases in March (the first week with two arguments per day, and the second week with one).

Cases to be argued in April will come from the January Conferences (held on the 9th, 16th, and 23rd).  The principal advantage of the Court frontloading its calendar is that the Court can hold only a single week of arguments in April — leaving the Justices more time to work on opinions in previously argued cases — without reducing the total size of the docket.

So, a likely scenario is that the Court will grant six cases between the first two January conferences (bringing the total for the Term to 76).  Some of these are likely to be petitions with respect to which the Court has sought the views of the Solicitor General, for which the government’s briefs should be filed in December.  The cases granted from the remaining January conference (on January 23) would then be argued in October Term 2009.

The argument calendar is tight enough — i.e., the number of days available to brief cases before argument is short enough — that the grants will be announced on the afternoon of the day of Conference in order to start the briefing clock.  No extensions of time for briefing will be available, and the parties will be expected to work together to divide between themselves the roughly 90 to 100 days available for briefing.

Given the limited public interest of the granted cases, the public’s interest at Term’s end will be focused more on potential retirements than potential blockbuster rulings.  The business community is quite interested in pending cases involving preemption (particularly No. 06-1249, Wyeth v. Levine) and labor (No. 07-581,  14 Penn Plaza LLC v. Pyett).  But there are not many cases of significant broader public interest.  That could change if the Court agrees to review two cases in the coming weeks: the challenge to the extension of the Voting Rights Act (No. 08-322, NAMUDNO v. Mukasey) (discussed here); and a challenge to the President’s power to detain indefinitely a terrorism suspect captured and held in the U.S. (No. 08-368, Al-Marri  v. United States) (filings here).

A copy of today’s orders list is now available here. The Court invited the views of the Solicitor General in Mac’s Shell Service, Inc. v. Shell Oil Products Company (08-240) and Shell Oil Products Company v. Mac’s Shell Service (08-372), the filings for which are available after the jump.

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The Supreme Court refused on Monday to reopen the issue of the kinds of wetlands that are protected from pollution discharges under the federal Clean Water Act.  Without comment, the Court denied review of a Justice Department case and an opposing case on the issue; the cases were sequels to the Court’s splintered 2006 ruling in Rapanos v. U.S. (04-1034).  The Court took no action on the new case testing presidential power to detain and hold indefinitely an individual who was seized and is being held without charges inside the U.S. (Al-Marri v. Pucciarelli, 08-368).

The Court asked the U.S. Solicitor General to provide the government’s views on the rights of service station operators to sue to challenge the loss or non-renewal of their franchises from oil companies.  The question arises in two cases – Mac’s Shell Service v. Shell Oil (08-240) and Shell Oil v. Mac’s Shell Service (08-372).  There is no deadline for the SG’s comments.

The Court’s refusal to consider anew the scope of wetlands protection leaves lower federal courts to continue to struggle over the meaning of the Rapanos decision.  The Court in that decision provided three separate approaches to the Clean Water Act’s scope –one embraced by four Justices, one by a different group of four, and one by Justice Anthony M. Kennedy.  The Justice Department asked the Court to clear up the matter in U.S. v. McWane (08-233); the other side filed a conditional plea on a Double Jeopardy issue in McWane v. U.S. (08-364).  The case now returns to lower courts for a new trial on criminal charges of dumping industrial waste water into a creek next to a pipe-making plant in Birmingham, Ala.

The Court refused to hear three separate cases raising issues about police encounters with motorists, raising these issues:

** Whether police must warn an individual of the right to remain silent if they question that individual while detaining him at the scene of an auto accident. The New Mexico Court of Appeals upheld a requirement of “Miranda warnings” in that situation (New Mexico v. Snell, 08-196).

** Whether police who legally stop a vehicle for a traffic violation may ask a passenger to search her purse if they have no basis for suspecting a crime.  The Kansas Supreme Court ruled that police may not seek consent to search a purse if that is unrelated to the reasons for the traffic stop (Kansas v. Smith, 08-245).

** And, whether police, after stopping a car for a noise violation, must warn a suspect of his rights before asking him if there are weapons or anything else dangerous in the car.  The Eighth Circuit Court ruled that no such “Miranda warning” is required in that circumstance, because of the “public safety exception” to the warnings mandate (Liddell v. U.S., 08-227).

The Court also declined to hear an appeal testing the constitutionality of juries of fewer than 12 persons to try criminal cases.  State courts are split on the meaning of prior Supreme Court rulings on the issue, including Williams v. Florida (1970) and Ballew v. Georgia (1978). The issue was raised anew in Gonzalez v. Florida (08-6833).

Stanford student David Schwartz previews this morning’s first argument in Kansas v. Colorado.

Argument Preview

On December 1, the Court will hear oral argument in what may prove to be the final battle in a lengthy water dispute between Kansas and Colorado. In No. 105 (Original), Kansas v. Colorado, the Court will consider whether 18 U.S.C. § 1821(b), which limits expert witness fees to $40 per day, applies to cases arising under the Supreme Court’s original jurisdiction.

Background

For over a century, Kansas and Colorado have been embroiled in a dispute over water rights to the Arkansas River. In 1948, the two states negotiated the Arkansas River Compact, which Congress approved and President Truman made effective the following year. The Compact apportions the Arkansas River between Kansas and Colorado and, as relevant here, allows Colorado to develop the Arkansas River Basin (e.g., by constructing dams or reservoirs) as long as its development does not “materially deplete” the flows apportioned to each state. However, Colorado subsequently authorized at least two thousand new wells, which – in violation of the Compact – increased the state’s total pumping of water from the river.

In 1985, Kansas filed an original jurisdiction suit in the Supreme Court. A Special Master was appointed in 1987 and conducted a trial on the liability issue, resulting in an extensive first report. The Court adopted the Special Master’s findings as to liability on the main claim – that Colorado’s post-Compact drilling had violated the Compact – and remanded the case back to the Special Master for consideration on remedies. Eventually, the Special Master found that Colorado had violated the Compact by pumping an additional 428,005 acre-feet from the Arkansas River over nearly five decades. (An acre-foot is equivalent to a one-acre expanse of water one foot deep, or 325,851 gallons; in more tangible terms, the courtroom of the Supreme Court, between the columns, if filled to the ceiling, would hold approximately 3 1/3 acre-feet of water.) As a result, the Special Master awarded Kansas approximately $34.6 million in damages, which Colorado paid.

The parties then turned to the issue of court costs, which Kansas estimated to be as much as nine million dollars. These large costs were due in no small part to the litigation’s length: from 1990 to 2003 there was approximately 270 days of trial, almost all of which consisted of expert witness testimony intended to establish how much water Colorado had pumped. In particular, considerable efforts were expended to develop an acceptable model that accurately described the flow of water into and out of the Arkansas River. Litigation costs further increased after Kansas disavowed its own expert and replaced its entire case. After this replacement, however, Colorado accepted Kansas’s model.

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At 10 a.m., the Court will release the remaining orders from the Justices’ private conference last Tuesday. (Click here to see the initial orders list, and here for our list of petitions to watch at the conference.) Following the release of orders, the Court will hear argument in:

Kansas v. Colorado (105, Orig.), an original dispute over the Arkansas River. Kansas Attorney General Steve Six will argue for the plaintiff, and Colorado Attorney General John W. Suthers will argue for the respondent.

14 Penn Plaza LLC v. Pyett (07-581), on whether collective bargaining agreements may require mandatory arbitration of civil rights claims. Paul Salvatore of New York will argue for the petitioner, and David Frederick of Washington, D.C., and Curtis Gannon of the Solicitor General’s office will argue for the respondent.

We will post links to transcripts of the arguments as soon as they are available.

At 11 a.m. Tuesday, the Supreme Court will hear oral argument in Fitzgerald, et al., v. Barnstable School Committee, et al. (07-1125). Charles A. Rothfeld of Mayer Brown in Washington will represent the Fitzgeralds, and Kay H. Hodge of Stoneman, Chandler & Miller in Boston will represent the Barnstable school board and the school superintendent. The filings in the case are available at SCOTUSwiki at this site.

______

Nearly four decades after Congress enacted Title IX, the well-known law that forbids sex discrimination in schools and colleges getting federal funds, the Supreme Court faces the question whether Congress meant that law to wipe out constitutional claims by students or parents of sex bias in public school districts or state colleges. The issue arises in Fitzgerald, et al., v. Barnstable School Committee, et al.

Background

Three years after the guarantee of legal equality was put into the Constitution, in the Fourteenth Amendment, Congress passed a law to enforce that guarantee.  The 1871 law, originally known as the Ku Klux Klan Act but now widely known simply as Section 1983, allows any citizen to sue any state or local official who deprives that citizen of rights under the Constitution or federal law.  That is the law that black children and their parents used to win desegregation of public schools in Brown v. Board of Education.

Only once in history — in 1984 — has the Court barred a claim of discrimination filed under Section 1983 because Congress had passed another law that it intended to be the exclusive way to remedy particular wrongs, displacing the remedies that had been available under the old law.  That case, Smith v. Robinson, involved a constitutional claim of discrimination against a handicapped student; Congress,e  the Court found, had provided a full, alternative remedy under a separate federal law, the Education of the Handicapped Act.

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On Monday, the Court will release the remaining orders from the Justices’ private conference last Tuesday. (Click here to see the initial orders list, and here for our list of petitions to watch at the conference.) Following the release of orders, the Court will hear argument in:

• Kansas v. Colorado (105, Orig.), a dispute over the Arkansas River.
• 14 Penn Plaza LLC v. Pyett (07-581), on whether collective bargaining agreements may require mandatory arbitration of civil rights claims.

On Tuesday, the Court may issue one or more opinions in pending cases. Following the announcement of any rulings, the Court will hear argument in:

• Entergy Corp. v. EPA (07-588) and two consolidated cases, on the regulation of cooling water intake structures under the Clean Water Act.
• Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125), on whether the passage of Title IX barred future constitutionally based gender discrimination claims against federally funded schools.

On Wednesday, the Court will hear argument in:

• Philip Morris USA, Inc. v. Williams (07-1216), on whether the Oregon Supreme Court improperly upheld a $79.5 million punitive damage upward under a state procedural rule.
• Haywood v. Drown (07-10374), on whether the Supremacy Clause bars states from stripping state courts of jurisdiction over certain federal constitutional claims.

Merits briefs for petitioners are due Thursday in Hawaii, et al. v. Office of Hawaiian Affairs, et al. (07-1372) and Friday in Rivera v. Illinois (07-9995). No merits briefs for respondents are due this week.

The Supreme Court on Friday released the list of oral arguments in the session beginning Monday, Dec. 1.  It can be found here.  Hearings will be in the mornings only.  Brief summaries of the issues involved are in this post.

A federal judge who is coordinating the cases of some 200 Guantanamo Bay detainees challenging their confinement signaled on Friday that he may act soon on the government’s plea to modify significantly how those cases are processed.  Senior District Judge Thomas F. Hogan issued an order requiring the government to file a brief by next Wednesday to answer a stack of protests by detainees’ counsel demanding that Hogan let the cases move forward now.

On Nov. 6, Judge Hogan issued a “case management order” that laid out the framework some 114 cases involving more than 200 captives would follow, when returned by him to judges before whom those habeas cases were originally filed.  This was a key order, setting the stage for those cases to begin moving toward fairly early decisions.

But the Justice Department and other federal agencies have since demanded that Hogan make major changes in the order.  As an alternative, if he did not make changes, the government asked him to clear the way for an immediate appeal to the D.C. Circuit Court.

Responding to the government’s request, detainees’ counsel on Wednesday filed 63 separate oppositions.  Each urged Hogan not to accept any of the government’s changes.  Some urged him to make modifications that would favor detainees’ rights.  Many urged Hogan to send the cases back immediately to “merits judges” to let them proceed. And most opposed any interim appeal by the government.

Hogan’s order on Friday ordered the government to file a single reply to all 63 of those filings, answering all of their arguments.

No oral arguments are scheduled and no non-capital orders are expected to be released from the Court today. Oral arguments will resume December 1.

The Justice Department on Wednesday urged the Supreme Court to uphold Congress’ 25-year extension of the key part of federal voting rights law that requires many states and local governments to get clearance in Washington before they change their election laws or methods.  That is Section 5 of the Voting Rights Act.

In a reply brief filed in Northwest Austin Municipal Utility District Number One v. Mukasey (08-322), U.S. Solicitor General Gregory G. Garre asked the Justices to rule without even ordering written briefs and argument, summarily upholding a three-judge District Court ruling in favor of the extension.  The motion to affirm is here.

The challenge to Section 5’s validity has been a major cause for some conservative activists, who argue strenuously that the law has outlived the problem it was intended to solve, and thus exceeds Congress’ power under either the Fourteenth or Fifteenth Amendments.

The Solicitor General argued on Wednesday that “the constitutionality and scope of Section 5 of the VRA is undeniably important, but the three-judge district court’s unanimous, correct and careful disposition of the questions presented does not warrant plenary review here.”

First, he said, the lower court was right in concluding that the Austin utility district was not eligible for a “bailout” that would allow it to come out from under Section 5.

And, second, on the constitutional question, Garre said that “Congress collected extensive evidence demonstrating that discrimination against minority voters continues to exist in covered jurisdictions and that Section 5 remains an effective means of preventing, deterring, and remedying that discrimination.  Congress’s factual findings are entitled to substantial deference, and the three judge district court carefully reviewed and upheld those findings.”

The fact that the utility district had filed its challenge as a “facial” one — that is, contesting the law as written, not as applied to a specific situation — increases its burden in seeking to strike down Section 5, “and reinforces the validity of the district court’s conclusion in this case,” Garre wrote.

Because the case reached the Court from a three-judge District Court, it bypassed the usual review in a Circuit Court.  In this form, the Court cannot dispose of it by simply declining review; it will take the votes of five Justices to dispose of it finally.  The Court has the option of “noting jurisdiction” and giving the case full review, or it can affirm the District Court or dismiss the appeal, without more.

Under the Court’s rules, the utility district’s appeal and the government motion to affirm will be distributed to the Justices no less than ten days from Wednesday.  The district is entitled to file a brief answering the Solicitor General, but that would not put off the distribution.

Thus, it appears that the Court could consider the case in time for a ruling during the current Court Term, even if the Justices opt for full briefing and review instead of disposing of it summarily without further briefs.  The Court has spaces left on its argument calendar for this Term.

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