The following analysis was written by Richard Samp, Chief Counsel of the Washington Legal Foundation in Washington, DC. (Disclosure: the Washington Legal Foundation filed an amicus brief in this case in support of Respondents, urging the Court to uphold Indiana’s Voter ID Law.)

Disputes over election reform issues have had a highly partisan tone for the past several decades, dating back at least to adoption of the NVRA (the “motor-voter” law) in 1993. The partisan bickering only intensified following the 2000 Presidential election, from which the two major political parties drew diametrically opposed conclusions regarding what was wrong with American election laws.

The partisan rancor is unlikely to subside any time soon in Congress or in the state legislatures. But with its decision Monday, the Supreme Court signaled that the federal courts should step back and not attempt to referee election reform disputes in the absence of evidence that a challenged state voting law either serves no relevant and legitimate state interests or imposes particularly severe and recurring burdens on the voting rights of identifiable classes of voters. The opinions of both Justice Stevens and Justice Scalia cautioned against any detailed scrutiny of the evidence supporting a State’s determination that measures are necessary to protect the integrity and reliability of the electoral process. So long as the State’s asserted bases for its voting regulation - here, an interest in preventing voter fraud and maintaining public confidence in elections - are relevant to its interest in protecting the integrity and reliability of elections, the Court signaled that it is very unlikely to second-guess the need for such regulation. Democrats argued that voter impersonation is rare and that voter ID requirements, by making voting a more onerous task, actually tend to undermine public confidence in elections; Republicans submitted evidence that, they asserted, demonstrated the precise opposite. The Court made clear that such factual disputes should be decided by legislatures, not courts. The court exhibited the same hands-off attitude that it has exhibited toward redistricting disputes in recent years.

Read the rest of this entry »

The following argument recap is by Tobias Zimmerman, an attorney at Akin Gump in Washington, DC. Tobias participated in the case in the lower courts, and Akin Gump also served as co-counsel to the Petitioners in this case.

The Court heard argument on Monday in Sprint Communications Co. LP v. APCC Services, Inc. Our summary of the issues in the case can be found here at SCOTUSwiki.

At oral argument, the Court grappled with standing and the unique procedural vehicle employed by respondents in asserting claims for payphone compensation on behalf of more than 1400 individual payphone owners. Carter Phillips, representing petitioners Sprint et al., faced lively questioning by Justice Ginsburg, who appeared unconvinced by petitioners’ claim that respondents’ agreement to account for all of the proceeds to the assigning payphone owners made the case materially different from one in which an assignee is entitled to retain a portion of any winnings. After Mr. Phillips sought to describe some of the practical problems created by having 1400 absent plaintiffs, Justice Ginsburg pointed out that “you would have the same problems” in a case in which an assignee indisputably has Article III standing because he is entitled to retain a portion of any recovery. Mr. Phillips agreed, but noted that the practical difficulties petitioners identify really only go to the question of prudential standing - not to the issue of constitutional standing under Article III.

Read the rest of this entry »

Fortunately for Keith Burgess, who is currently in jail serving a 156-month prison term, the Supreme Court handled his case with great speed and efficiency: his pro se pauper petition was granted in December 2007, argued in March of this year, and decided a scant three weeks later. Unfortunately for Burgess, however, the reason the Court was able to move with such velocity was that there was little disagreement that the position of the United States was the correct one; indeed, on Wednesday, April 17, in a unanimous opinion by Justice Ginsburg, the Court affirmed the decision of the Fourth Circuit and ruled against Burgess. The unanimous affirmance was not unexpected in light of that fact that Nicole Saharsky, the Assistant to the Solicitor General who argued the case on behalf of the federal government, faced so few questions from the Justices that she used only seven of her allotted thirty minutes at oral argument.

The issue in the case is one of statutory definition: as the opinion relates, the question was “whether a state drug offense classified as a misdemeanor, but punishable by more than one year’s imprisonment, is a “felony drug offense” as that term is used in [21 U.S.C.] § 841(b)(1)(A).” The answer, as Justice Ginsburg’s eleven-page opinion relates, is a definitive “yes”: “the Government’s reading [of the statute],” she writes, “…correctly interprets the statutory text and context.” (For more on the background of the case and provisions of the statute at issue, see our SCOTUSwiki preview here).

Justice Ginsburg manages, in her brief opinion, to address and dispense with many of Burgess’s key arguments. In succession, she adopts the government’s view that the phrase “felony drug offense” is a “term of art” properly defined that ought not send the reader to any separate definition of the term “felony” outlined elsewhere; she notes that the definition of “felony drug offense” comports well with the common legal use of the term “felony,” meaning generally “a crime punishable by imprisonment for more than one year”; she asserts that the Court’s reading provides a more logical view of Congressional intent; and she states that the Court’s interpretation “avoids anomalies that would arise” if petitioner Burgess’s view were adopted. In short, she leaves no doubt that there is any question as to whether the sentencing enhancement should apply. “Burgess’ argument…encounters formidable impediments,” she writes with dry understatement at the end of Section II.B, before noting that those impediments are “the text and history of the statute.” Formidable indeed.

Read the rest of this entry »

Extensive argument previews are now available on SCOTUSwiki for two of the most closely-watched arguments of the final sitting of this Term: Kennedy v. Louisiana, on the constitutionality of administering the death penalty as punishment for child rape, and Davis v. FEC, a major election law case. Both previews are by Lyle Denniston.

The SCOTUSwiki pages also feature links to download the cert.-stage and merits-stage briefing.

This post is part of our Discussion Board regarding the Court’s decision in Medellin v. Texas.  The following entry is by Kent Scheidegger of the Criminal Justice Legal Foundation.  He filed an amicus brief in support of Texas, on behalf of that organization and Randy and Sandra Ertman.  This entry is cross-posted at the blog “Crime & Consequences” here.

Despite all the wailing and gnashing of teeth over the Supreme Court’s decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.

So the ball is squarely in Congress’s court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice’s decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further. Read the rest of this entry »

This post is part of our Discussion Board regarding the Court’s decision in Medellin v. Texas.  The following entry is by Professor Ernie Young of Duke Law School.  He filed an amicus brief in support of Texas, on behalf of Constitutional and International Law Scholars.

Having served as counsel of record for the Scholars’ Brief in support of Texas, I think this is a great day for the Constitution. I’ve posted a more extensive discussion of the Medellin opinions and their implications over at the Opinio Juris blog here. In this post, I’d like to make few additional points:

First, God bless Justice Stevens. Although his heart seemed to be with the dissenters in some respects, his vote was the only one standing in the way of the case turning on the Court’s familiar 5-4, left-right split. I think it would be extremely unfortunate to view issues concerning the relationships between domestic and international law and institutions in this way. After all, the next case may involve a NAFTA or WTO panel holding that domestic environmental laws violate international trade agreements.

Read the rest of this entry »

The following post is part of a Discussion Board about today’s decision in Medellin v. Texas. This entry was written by Ricahrd Samp of the Washington Legal Foundation. He filed an amicus brief in support of Texas, on behalf of the parents of one of the murder victims and also on behalf of the Washington Legal Foundation.

Perhaps the most striking aspect of today’s Medellin decision was the Court’s professed willingness to defer to Congress when it comes to deciding which decisions of foreign tribunals are binding on U.S. courts. The majority stated that it would have been quite willing to be bound by the International Court of Justice’s determination of U.S. obligations under the Vienna Convention, if Congress had decreed that U.S. courts should be so bound.

That show of judicial humility is in contrast to comments made by several of the justices at oral arguments. Justices Kennedy and Scalia in particular seemed indignant at the suggestion that they could ever be required to abide by a judgment of the ICJ, especially because that judgment was based on an interpretation of the Vienna Convention that the Court had rejected in Sanchez-Llamas v. Oregon. (One of them invoked Marbury for the proposition that it is up to the Supreme Court to say what the law is.) But the Chief Justice’s opinion is a paean to judicial humility (particularly at pp. 18-20 of the Slip Opinion). Only the three dissenters would have allowed the courts to play a role in picking and choosing when judgments of the ICJ should be enforceable in U.S. courts. The Chief Justice said that the ICJ’s Avena judgment was not enforceable because Congress had indicated that such judgments are not judicially enforceable but indicated that U.S. courts are required to enforce any judgments that Congress says they are required to enforce regardless whether they disagree with the foreign tribunal’s reasoning.

Read the rest of this entry »

Alan Bakowski wrote the following brief preview of Tuesday’s argument in US v. Clintwood Elkhorn Mining Company. Find it in its entirety here on SCOTUSwiki. (Disclosure: Akin Gump represents the respondents in the case. Alan is not affiliated with Akin and was not involved in the case.)

Monday’s second case, No. 07-308, US v. Clintwood Elkhorn Mining Company, involves three companies’efforts to obtain a refund of taxes they paid on coal exports after it was determined that the export tax was unconstitutional. The question presented is whether the companies may file their refund claims directly in federal court under the Tucker Act or whether they must follow statutory procedures with the IRS that provide a more limited remedy.

Note: The following piece about oral argument in Chamber of Commerce v. Brown was written by Micah Block, a student in the Stanford Law School Supreme Court Litigation Clinic. Earlier, we posted a recap/analysis from the pro-union perspective by Professor Paul Secunda, which can now be found here cross-linked at Workplace Prof Blog.

Arguing on behalf of the Chamber of Commerce, Jones Day’s Willis Goldsmith sought to distill the argument in favor of preemption to a basic syllogism establishing that AB 1889 is contrary to federal labor policy. He argued that (1) federal labor policy says that employer speech about unionization enhances employee free choice; (2) California seeks to discourage employer speech about unionization; and therefore (3) “California’s labor policy is designed to discourage exactly what the NLRA promotes.”

Goldsmith met immediate resistance from Justice Scalia to the notion that federal policy “promotes” employer speech about unionization, rather than just permitting it, and Justice Ginsburg chimed in on the same point with reference to federal statutes imposing similar restrictions with respect to certain federal grants. Goldsmith came close to a concession by saying that the federal statutes (using language that AB 1889 borrowed verbatim) did not evince a Congressional intent to inhibit employer speech, but distinguished the federal statutes from AB 1889 based on AB 1889’s administrative requirements and damages provisions.

Read the rest of this entry »

Some of today’s major editorial pages feature commentary on today’s case. Randy Barnett has this op-ed in the WSJ called “Gun-Rights Showdown,” and the Cato Institutes’ Robert Levy has this piece in the Boston Globe called “Fighting For Our Right To Bear Arms.” The editorial boards of both the New York Times and the Los Angeles Times make their views of the case known; the NYT supports upholding DC’s gun ban and the LAT largely sides with the view espoused by the Solicitor General to remand the case for further consideration.

Today’s Washington Post has coverage of the case from many different angles. This profile of Walter Dellinger (arguing for DC) is called “An Old Hand At Court Gears Up for Battle,” while a companion profile of Mr. Heller’s attorney Alan Gura is called “For Young Area Lawyer, The Supreme Compliment.” This Post article discusses the long line for tickets outside the Court, and this article asks “Which Arguments Will Hit The Mark?”

Howard Bashman of the How Appealing Blog also links to several other DC Guns-related stories in this post. Marty Lederman has this post on Slate’s new Convictions blog.

This is the second in our 2-part series on the guns case from prominent professors at Harvard Law School. This op-ed was written by Charles Fried, a former US Solicitor General and teacher of current Solicitor General Paul Clement. Part 1 in this series, an op-ed by Professor Laurence Tribe, is here.

In 1992 I gave Paul Clement, then a third year law student at the Harvard Law School, now the Solicitor General of the United States, an A in my seminar on appellate advocacy. Based on his position in the District of Columbia gun case, he deserves that grade again—for skillful advocacy, to be sure, but for character and sound judgment as well.

The Second Amendment in its entirety reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In 1939 the Supreme Court said almost in passing that the amendment was no more than an endorsement by the new national government of the continued status of state civilian militias; it did not announce an individual right at all. There is a lively debate among constitutional scholars whether that Delphic sentence compels one or another of these readings. Unlike my colleague Laurence Tribe, I think that debate is at best a draw. And the historical debate about the “original meaning” of the amendment is wholly inconclusive and adorned with comical episodes like the conferral and subsequent withdrawal of the historians’ coveted Bancroft prize on work defending the pro-militia anti-individual rights interpretation.

The extreme interpretation, supported by among others the NRA and Vice-President Cheney, has it that the amendment not only enacts a right addressed to individuals—like the right to a jury trial in criminal cases—but also that the government may limit the right to keep and bear arms only for the most compelling reasons, those reasons being subject by the courts to what in constitutional law parlance is called strict scrutiny. That is the level of skeptical scrutiny to which the courts subject regulations of speech and religion or government impositions on individuals based on race—as in the infamous Japanese Exclusion case during the Second World War. The extreme interpretation—an entire novelty in federal jurisprudence—would invalidate or put in doubt hundreds of weapons bans and regulations and tens of thousands of criminal convictions across the country. It would, for instance, cast doubt on bans of the regulation of machine guns, sawed-off shot guns, automatic weapons, silencers, and “cop-killer” bullets. It would propel across the nation, already awash in weapons of every description, a tidal wave of lethal weaponry that with the return of sanity could hardly be reversed.

Read the rest of this entry »

This is the first in our 2-part series on the guns case from prominent professors at Harvard Law School. This piece, by Professor Laurence Tribe, was originally published as an op-ed in the Wall Street Journal. Part 2 in this series, an op-ed by Professor Charles Fried, is here.

The Supreme Court is set to hear oral argument later this month in a politically charged gun-control case from the District of Columbia. The case involves a city resident who contends that the District is violating his rights under the Second Amendment with a citywide ban on handguns.

Gun enthusiasts on the right are all but daring justices who protect a woman’s right to choose, nowhere mentioned in the Constitution, to trash the “right of the people to keep and bear arms,” enshrined in the text of the Second Amendment. If the Supreme Court does what they fear and reduces the gun right to a relic of the days when all “able-bodied men” constituted each state’s “militia,” they will use that defeat to suggest that we need a president who will bring us a truly “conservative” Supreme Court.

Read the rest of this entry »

With the government on the verge of pursuing a new appeal to the Supreme Court to clarify legal issues surrounding the role of the courts in Guantanamo detainee cases, a lengthening list of actions in the D.C. Circuit Court is adding deeper complexity to the controversy. Sparring by lawyers on each side of the controversy continues almost daily, without definitive results so far. The inaction may well have an effect on what the Justice Department asks when it files its new appeal to the Justices — a filing now set for Thursday.

The Justice Department has at least 12 pending motions that seek delay of Circuit Court deadlines in cases involving prisoners at Guantanamo Bay, Cuba, with no way of knowing the fate of any such filing, even as it goes into the final stages of preparing to move on to the Supreme Court this week. A 5-to-5 split among the ten judges on the Circuit Court, revealed in an important development on Feb. 1, may be a complicating factor — not only for what happens in already pending cases there, but also for what could happen if the Circuit Court is assigned added duties by the Supreme Court once the Justices do take new action.

The two-track process that had been unfolding on the legal rights of detainees — one in the Supreme Court, one in the Circuit Court — is about to reach an intersection. What will happen at that point is increasingly uncertain. Some clarity may emerge after the Court reacts to the new appeal it will receive Thursday.

Since Dec. 5, the Supreme Court has been weighing the issue of whether Guantanamo detainees have any constiutitonal rights to challenge their detention, and what court review would be available to them. And, for nearly two years, the Circuit Court has been wrestling with one form of court review created by Congress — a review that would replace court consideration of habeas petitions seeking detainees’ release. This alternative form of review involves passing upon the validity of military decisions to designate Guantanamo prisoners as “enemy combatants” who must remain in captivity. The Circuit Court, so far, has not moved forward to consider even one such review on the merits; the lead case in the pipeline (Paracha v. Gates, Circuit docket 06-1038) has been pending two years. It is one of the dozen or so cases in which the government is now seeking delay while it makes its planned trip to the Supreme Court.

Read the rest of this entry »

A group representing restaurant operators in San Francisco asked the Supreme Court on Friday to temporarily block the city government there from requiring employers to spend specific amounts on health care for their employees, arguing that a city ordinance is barred by federal worker benefit law.  The application (07A654) was filed in Golden Gate Restaurant Association v. City and County of San Francisco, et al.; it was filed with Justice Anthony M. Kennedy as Circuit Justice for the Ninth Circuit.  Justice Kennedy has the option of acting on the plea alone, or of referring it to his colleagues for action.  (The application can be downloaded here.)

The association seeks an order to put back into effect a federal judge’s Dec. 26 ruling that the city’s Health Care Security Ordinance cannot be enforced because it interferes with the federal Employee Retirement Income Security Act (ERISA).  The Ninth Circuit Court, however, blocked the judge’s order on Jan. 9, and the city immediately put its ordinance into effect.

In asking for relief now from the ordinance, the association’s appeal argued: “This matter lies at the center of a national debate over universal healthcare: may various local governments require employers to pay different minimum amounts toward employee health benefits, or is that authority reserved to the federal government? More than half the states have considered this type of legislation in the past three years, setting up an inevitable collision with more than three decades of uniform benefit regulation under ERISA.”

Under the San Francisco ordinance, adopted July 25, 2006, employers with 100 employees must pay at the outset $1.73 per hour or about $300 a month in health spending for full-time employees; those with 20 to 99 workers must start at $1.17 per hour or about $203 a month. There is to be a 5 percent increase each year.

This kind of plan is sometimes referred to as a “fair share” benefit requirement.  The issue was actively litigated in a celebrated case involving a Maryland law, challenged by Wal-Mart Stores; that case ended without reaching the Supreme Court.

This entry is part of our continuing commentary on the decisions yesterday in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Carissa Byrne Hessick and Andrew Hessick. Carissa is an associate professor at the Sandra Day O’Connor College of Law at Arizona State University (bio here), and Andrew is a visiting associate professor, also at Arizona State (bio here).

Mark Osler notes that the Court’s opinion in Kimbrough discourages sentencing court transparency in crack cocaine sentences. Gall appears to discourage appellate court transparency. Justice Stevens’s majority opinion tells appellate courts that they may not apply a “proportionality test” when reviewing sentences outside the Guidelines range. Yet he also tells appellate courts that they make “take the degree of variance into account and consider the extent of a deviation from the Guidelines.” Justice Stevens seems distressed that appellate courts have framed their review of district court explanations of non-Guideline sentences in terms of a percentage variance from the Guideline range, yet he finds it “uncontroversial that a major departure should be supported by a more significant justification than a minor one.”

Doug Berman and Michael O’Hear may well be correct that Justice Stevens added this Guidelines-friendly language to the opinion in order to placate Breyer, Kennedy and/or Roberts. But I am concerned that this language may have sufficiently muddied the water that it will result in a “business as usual” approach to reversing lenient sentences in some circuits. The Court’s opinion in Gall tells these appellate courts that there is a substantive component to their reasonableness review. But it gives little guidance about what that substantive component ought to entail. Indeed, the guidance Gall does give to appellate courts seems to be a message of obfuscation - they may consider the extent of a district court’s variance, but they may not do so in an overly precise way. The lack of appellate accountability plus the pro-guidelines language in the opinion could let those appellate courts that have clung to the Guidelines in the wake of the Court’s decision in Booker to continue to do so.

Read the rest of this entry »

Throughout today and tomorrow, we’ll have commentary on the decisions this morning in Gall v. US and Kimbrough v. US, both of which addressed issues in federal sentencing.

This entry is by Mark W. Osler of Baylor Law School. His bio and contact information are here, and a previous post he authored in the wake of the Rita decision is here. He was counsel of record in an amicus brief supporting petitioner in the Kimbrough case.

While the result in Kimbrough is certainly encouraging to many judges, practitioners, and academics, the opinion is more complex than it might at first appear. In short, Kimbrough seems to be good news for fans of the parsimony provision of 18 U.S.C. § 3553(a), bad news for fans of judicial transparency, and an announcement that the conflict over a remedy in Booker may not be resolved.

Winner: Parsimony Provision

Famously, but to date ineffectively, 18 U.S.C. § 3553(a) provides that a sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” Commonly known as the “parsimony provision,” this bit of Congressional direction has had little real effect on sentencing, as judges have struggled to determine how it fits in with the many other factors the statute directs, and the weight to be given the guidelines themselves. In Kimbrough, though, the Court not only refers to this as an “overarching provision” (Slip Op. at 12), which implies a weight greater than any other individual factor, but ultimately found the parsimony provision to be the relevant, valid justification for the sentence given Kimbrough over the government’s objections. (Slip Op. at 22). It could be that the parsimony provision will now become a crucial driver of the sentencing calculus, rather than a vague piece of background flotsam.

Read the rest of this entry »

Back in April, when the Supreme Court initially refused to hear the Guantanamo Bay detainees’ challenges to their detention, Justice Anthony M. Kennedy was one of two members of the Court who wanted the prisoners to try first to get some legal relief from the D.C. Circuit Court. He apparently changed his mind (probably making a fifth vote to switch and hear the case), but now that the case has been heard by the Court, Justice Kennedy seems still to want to let the lower court try its hand at answering some serious constitutional questions about detainees’ rights. The problem is: the Court first has to face and answer — or find a clever way to finesse — some fundamental questions of judicial power: can it restore jurisdiction that Congress has taken away, and can it then order remedies that Congress has denied to the lower courts?

As the Court heard Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), allowing an extra 24 minutes beyond the hour scheduled for argument, it became clear that some of the Justices were thinking beyond the core question of whether the Constitution gives detainees any rights at all, or at least a right to challenge their detention in a federal habeas court. While the Court’s more conservative members wanted to talk about that, implying that the detainees have no such rights, most of the other Justices were moving on — assuming detainees have such rights, what remedies do they get?

It was a leap that Justice Ruth Bader Ginsburg questioned very near the beginning of the argument: “The D.C. Circuit, as I understand it, ruled that there was no access to habeas — end of case.” So, she told the detainees’ lawyer, Seth P. Waxman, the Circuit Court never examined whether Congress had provided an adequate substitute for habeas. Waxman agreed, prompting Ginsburg then to jump, herself, to remedies: “So, shouldn’t we, if we agree with you, that there is authority in the D.C. Circuit, send it back to them to make that determination whether habeas being required, there is an adequate substitute?”

It turned out that this was what most interested Justice Kennedy, who may well hold the deciding fifth vote on the outcome of these cases. He would come back to it several times. But that immediately gave rise to this question: doesn’t the Supreme Court have to first reverse the D.C. Circuit, say that the lower court was wrong in saying detainees have no constitutional rights, and then — only then — suggest ways to right that error? Once Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia had spent a good deal of their questions on that issue, it seemed to get submerged, and even U.S. Solicitor General Paul D. Clement found himself discussing — more expansively than the government has up to now in its arguments in the D.C. Circuit — what remedies might be fashioned. He even suggested, as the government has never before, that the Circuit Court could even order the release of a detainee from Guantanamo as an ultimate remedy.

Read the rest of this entry »

Note: The following argument recap is by Paul Secunda of the University of Mississippi School of Law and Workplace Prof Blog, where this entry is cross-posted.  The SCOTUSwiki page for this case, with more links and documents, is here.

I have just had the chance to review the oral argument transcript in the important employment discrimination evidence case of Sprint/United Management Co. v. Mendelsohn.  As this guest post points out over at the ACS Blog, a lot is at stake in this ADEA case, including whether certain circumstantial evidence is admissible in a pattern and practice case.

To the transcript to read the tea leaves:

1.   Sprint’s attorney relies on the concept of foundation to explain why “other supervisor” and “cultural/atmosphere” evidence should not be admitted into evidence.  To the point, only decisionmaker bias is relevant and therefore, evidence of bias by others in the organization is not probative of the legal issue at stake.  Indeed, it should be presumptively irrelevant, although not completely barred.  Justice Breyer points out, however, that the way the case was specifically handled here, there appears to be an absolute bar for these types of evidence.

Read the rest of this entry »

With so much commentary on the Court’s decision to grant cert. in the DC Guns case yesterday (DC v. Heller), we thought we’d do a blog Round-Up here on the main scroll. As always, additional links are updated throughout the day on the far right sidebar.

The Volokh Conspiracy had a number of posts on the case yesterday from its regular bloggers. Eugene Volokh weighed in here and here (linking to papers of his in this area), Orin Kerr wonders about Justice Kennedy and the Second Amendment here, and David Kopel offers up background information here. At Instapundit, Glenn Reynolds links to several posts and the comments of two Republican Presidential candidates in this post, and this morning he posted a podcast with Cato Institute senior fellow and “moving force behind the case” Bob Levy that can be heard here. The DailyKos posted this informational entry as the news broke yesterday, which then led to over 600 comments.

Meanwhile, Redstate.com had this post advocating for an individual rights view of the Amendment. At Balkinization, Jack Balkin asks “Has the Supreme Court Helped the Democrats?” Ann Althouse responds here, however, that Balkin is “missing something.” Finally, though it was written before the Court granted cert., this PrawfsBlawg post by Mike O’Shea analyzing the arguments made at the cert. stage has been cited a number of times in the last 24 hours.

This is Part II of our newest installment in the “Ask the Author” series; yesterday’s Part I is here. This edition features a conversation with Christopher Eisgruber about his new book, The Next Justice: Repairing the Supreme Court Appointments Process, which was released last week by Princeton University Press.

Professor Eisgruber is the Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton, where he also serves as the Provost. A former clerk to Justice Stevens, he is the author of Constitutional Self-Government and the coauthor of Religious Freedom and the Constitution. The conclusion of our conversation will appear tomorrow.

When discussing the role of judges, you write, “in federal courts [other than the Supreme Court], judging might sometimes feel like umpiring,” but that that at the Supreme Court the very nature of the cases “requires the justices to make politically controversial judgments.”  Why, then, does the view of the justice-as-umpire persist?  And, if the work of lower federal courts is so different from that of the High Court, how relevant is such lower court experience for a nominee?  And how reliable is it as an indicator of what will type of justice a lower court judge will be?

There are two big reasons why the myth persists.  One reason is that people rightly expect Supreme Court justices to be impartial in certain ways.  For example, justices ought to decide cases on the basis of principles, not on the basis of the identity of the parties.  Bush v. Gore was disturbing to many people because they worried that it violated this basic norm:  people thought that if the roles of the candidates had been reversed-if Bush had been challenging the Florida returns instead of Gore-the justices might have changed their positions.  Justices have no business favoring Bush over Gore or vice-versa, any more than a baseball umpire should favor the Red Sox over the Rockies when calling balls and strikes.

The second reason the myth persists is that we put a veil of secrecy over what happens in the Court.  When journalists pull back the veil, they often focus on the most salacious details, emphasizing personalities rather than processes and values.  As a result, ordinary people, including most lawyers, have very little information about how impartiality and political values really mix in the Court’s work.  One of the things I do in The Next Justice is to draw on my own experience as a law clerk to describe what the Court actually does.  For example, I recount how Justice Stevens refused, on grounds of principle, to lobby Justice O’Connor for her vote in an abortion case.  That’s exactly the opposite of the sort of story you find in The Brethren or The Nine, but it is much more representative of how the Court usually works.

Read the rest of this entry »

This is Part I of our newest installment in the “Ask the Author” series. This edition features a conversation with Christopher Eisgruber about his new book, The Next Justice: Repairing the Supreme Court Appointments Process, which was released last week by Princeton University Press.

Professor Eisgruber is the Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and the University Center for Human Values at Princeton, where he also serves as the Provost. A former clerk to Justice Stevens, he is the author of Constitutional Self-Government and the coauthor of Religious Freedom and the Constitution. Parts II and III of our conversation will appear tomorrow and Friday, respectively.

First, what prompted you to write this book? Did you have this topic in mind before the Roberts and Alito hearings, or did what you saw there spur you into action?

I wrote the book because I was disappointed with the quality of the Roberts and Alito hearings. The nation learned almost nothing about the nominees’ constitutional views. Roberts, for example, characterized himself as a mere umpire whose values and political convictions were irrelevant to his duties as a judge. Not surprisingly, when he reached the Court, he-like every justice before him-turned out to be something much different from an umpire. He and Alito have led the Court in a new, conservative direction. With the Court’s future hanging in the balance, Americans need a better public language, and a better process, for arguing about what kinds of justices they want on the Court.

Read the rest of this entry »

Even before the Justices have decided whether to hear a case, the U.S. Chamber of Commerce is willing to step in and state its interest—more willing, in fact, than any other organization.

A review of certiorari-stage amicus curiae briefs (i.e., amicus briefs filed at the petition stage, before the Justices grant cert.) filed between May 19, 2004 and August 15, 2007 shows that the Chamber of Commerce filed 55 such briefs, about 17 per year. Over the three-and-a-quarter years studied, 986 parties filed cert.-stage amicus briefs, averaging 1.666 briefs per party. Of those 986 amici, 259 filed 2 or more, and 118 filed 3 or more. Not every party was included in the count, as we were most interested in the impact of private groups and advocacy organizations pushing cert. petitions; those excluded from the count are listed at the bottom of this post.

The top sixteen parties each filed 8 or more briefs, and a list of those groups, along with the success rates of the cases in which they filed (up to Tuesday’s orders list), is here. The success rate is calculated as a percentage of the party-supported petitions that were either granted or denied. (Note that only amicus briefs in support of a petition are considered here; the Washington Legal Foundation filed as an amicus in opposition to the petition in Padilla v. Hanft (05-533) and was not counted in that instance.) Petitions supported by these top sixteen groups included many of the Court’s most high-profile cases over the last few years, such as US v. Booker, MGM v. Grokster, PICS v. Seattle Schools, and Rumsfeld v. FAIR.

Notably, the list of top amici is dominated by pro-business and anti-regulatory groups—such groups hold over half the slots in the top sixteen. The prevalence of these groups may result from their having an enhanced financial ability to pay for many cert.-stage briefs as compared to other groups; the businesses and industries they comprise and represent may also be more eager to jump in at the petition stage when their bottom lines are at stake (as opposed to an ideological group); and it’s possible, too, that these groups want to get as many cases as they can before a Supreme Court that is being increasingly viewed as business-friendly (e.g., see here). As a corollary, the absence of liberal or left-leaning groups is striking (with the National Association of Criminal Defense Lawyers as a narrowly-focused exception). The American Civil Liberties Union, for instance, tallied just two cert.-stage amicus briefs during this time.

A full quarter of the sweet sixteen are regionally-named legal foundations. Ranking third, fourth, seventh, and eighth overall in numbers of cert.-stage amicus briefs filed, the Washington Legal Foundation filed 26 briefs, the Pacific Legal Foundation filed 25, the New England Legal Foundation filed 11, and the Mountain States Legal Foundation filed 10. Their success rates were relatively high, ranging from about 18% (New England) to 39% (Washington). The Washington Legal Foundation, in fact, edged out the National Association of Home Builders (36%) to have the highest grant percentage of the top sixteen.

The only two groups in the top sixteen to be completely shut out were the Reporters Committee for Freedom of the Press (9 briefs in cases denied cert.) and the Society of Professional Journalists (8 briefs). Additionally, the Associated Press filed seven cert.-stage amicus briefs in cases that were all denied. These three groups, along with many other media organizations, often file amicus briefs together, so these are not 24 distinct denials, but rather just nine. Even so, since May 2004, these media groups hold the distinction of putting the most effort into pushing petitions while having no success.

Read the rest of this entry »

Linda Greenhouse wrote a provocative article on term limits for Supreme Court Justices yesterday for the New York Times, highlighting the arguments of several important scholars on the issue, see here. Her article has prompted lengthy posts on the issue on both the Volokh Conspiracy, see here, and Concurring Opinions, see here. Among the leaders of the movement for an end to life tenure for Supreme Court Justices are Steven Calabresi and Jim Lindgren (both of the Northwestern University School of Law) and Roger Cramton (Cornell University Law School) and Paul Carrington (Duke University Law School). The proposals range from a mandatory retirement age (David Garrow) to nonrenewable eighteen-year terms, though scholars disagree whether the latter can be achieved by statute (Carrington and Cramton) or must be done through a constitutional amendment (Calabresi and Lindgren). To be frank, the call for an end to life tenure has garnered support from academics of all political persuasions, from a co-founder of the Federalist Society to leading liberal academics.

Key to nearly every argument to end life tenure is the empirical claim that Justices are serving longer than ever before and that the nature of life tenure has accordingly changed and for the worse. Nearly every article on the subject, including those of scholars and leading Supreme Court reporters, reports that the average tenure over history is 15 years for Supreme Court Justices and an astonishing 26.1 years for the most recent period, 1971-2006. Calabresi and Lindgren emphasize this claim in both their contribution to an edited volume entitled “Reforming the Court: Term Limits for Supreme Court Justices” and in their Harvard Journal of Law and Public Policy article, see here, which is discussed at some length in the Greenhouse piece. The problem with the claim, however, is that while tenure for Supreme Court Justices is indeed increasing as an empirical matter, it is not doing so at nearly as rapid a rate as Calabresi and Lindgren claim nor has it reached unprecedented levels.

Read the rest of this entry »

The District of Columbia’s appeal on Tuesday of the D.C. Circuit’s gun control decision remains very much in the news.
(Click here for more details on the petition and links to relevant documents.)

From the front page of yesterday’s Washington Post, Bob Barnes and David Nakamura’s analysis of the city’s petition is here. It notes that while most petitions attempt to persuade the Justices to take the case, the city’s petition “serves as more of a preview of its defense of the law.” Here is today’s Reuters report from James Vicini, noting the “far-reaching legal and political importance” of the case.

Yesterday’s Washington Post editorial on the Second Amendment can be found here, and this is a Washington Times editorial arguing that the D.C. mayor’s “main problem is his argument.”

The Chicago Tribune’s James Oliphant writes here about the impact the case could have on Chicago’s handgun ban. He points out that this case is “a rare instance when both sides in a dispute hope an appeal goes forward.” (Oliphant also has a report here on the relationship between Rudy Giuliani’s presidential campaign and the Federalist Society, highlighting in particular Ted Olson, the former Bush Solicitor General.)

Michael Dorf has these thoughts on D.C.’s petition. He gives his predictions on how the case will fare at the cert. and merits stages, concluding that the ultimate decision “will instantly become an issue in the Presidential election, regardless of how the case is decided.”

Not related to the guns appeal, David Postman, chief political reporter at the Seattle Times, adds his thoughts to the ongoing debate over the Ninth Circuit’s reversal rate at the Supreme Court. In the piece, law professor Vik Amar suggests that “part of the problem may be with the impression of the Ninth Cricuit among students in Ivy League law schools.”

The District of Columbia filed its petition to the Supreme Court today for review of the D.C. Circuit’s decision that its gun control law violated the Second Amendment. For Lyle’s coverage and analysis of the petition, along with links to the relevant documents, click here.

D.C. mayor Adrian Fenty and attorney general Linda Singer had this column, “Fighting for Our Handgun Ban,” in today’s Washington Post. They write that the Circuit Court’s decision “threatens public safety and is wrong on the law…[s]o we will fight.” Also in the Washington Post is Bob Barnes and David Nakamura’s report on today’s filing, here.

Tony Mauro has a post on the case at the Legal Times blog (the BLT), which reports that Alan Morrison will be arguing the case for the city, should the Justices decide to hear it. Morrison has previously argued 16 cases at the Court while working for the Public Citizen Litigation Group. The Associated Press story on the appeal is available here, via the Wall Street Journal Online.

Also, not related to District of Columbia v. Heller, Gregory P. Joseph (bio here) has prepared this article, “Supreme Court Rewrites Pleading Rules,” which analyzes the landmark case Bell Atlantic Corp. v. Twombly, decided in May 2007.