Analysis

It took less than two minutes Monday for the high-stakes patent case in the Supreme Court to descend to the level of questioning whether “Lorenzo Jones” could get a patent on one of his hare-brained inventions, if Bernard Bilski and Rand Warsaw could get one on their theory about managing business risk.  “Jones,” an old-time radio figure who thought his creations in a garage would bring him fame and fortune, made an appearance in the first question, by Justice Antonin Scalia.

Scalia also suggested the seeming absurdity of a patent for Dale Carnegie’s influential 1936 book, How to Win Friends and Influence People.  But it was the “Lorenzo Jones” comment that set the tone for the entire argument in Bilski, et al., v. Kappos (08-964).  It would take a most inventive analyst to find a way in the argument for the risk-management idea under review to fit into the Patent Act’s coverage.  The idea had no defenders whatsoever on the bench

The largest question left unanswered when the one-hour argument was over was whether the Court would go forward and issue a major new ruling interpreting patent law, when the practical result here seemed so evident.  Lawyers and judges have invested heavy resources in the Bilski case, and it does raise a fundamental question that may well need answering. But, when there may well be no formulation of patent law that would salvage the Bilski-Warsaw creation, why bother?

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Analysis

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Lawyers for the two youths, who committed non-homicide crimes at age 16 and 13, sought to persuade the Court that the only way to deal constitutionally with no-release sentences for minor offenders was to declare all such sentences forbidden.  While there was much sympathy evident among some — not all — of the Justices for treating juveniles differently, it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth’s crime did not die.

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At 10 a.m., and again at 11 a.m., on Monday, the Supreme Court will examine the latest question on the punishment of juveniles who commit crimes — this time, crimes that do not lead to the death of the victim.  Similar but not identical, the cases are Graham v. Florida, being argued at 10, and Sullivan v. Florida, at 11.   Florida’s Solicitor General, Scott D. Makar will argue for the state in both cases.  Representing Terrance Jamar Graham, by Court appointment, will be Bryan S. Gowdy of Mills Creed & Gowdy in Jacksonville; Joe Harris Sullivan will be represented by Bryan A. Stevenson of the Equal Justice Institute in Montgomery, Ala.  The briefs and other filings in the cases can be found on ScotusWiki, here and here.

Argument Preview

Four years after ending the death penalty for any minor who commits murder, the Supreme Court now is ready to analyze the next most severe penalty for a juvenile: life in prison without any chance of release, for a crime in which the victim is not killed.  The issue will be examined in cases involving teenagers who were 13 and 17 at the time of their crimes — the 13-year-old convicted of sexual battery, the other youth convicted at age 17 of probation violation following a felony robbery when he was 16.   Once again, the Court is inquiring into the degree of moral responsibility of minors, as well as into current moral standards, as factors in punishing youthful offenders. Read the rest of this entry »

At 1 p.m. Monday, the Supreme Court will hear one hour of oral argument in Bilski, et al., v. Kappos (08-964).  Arguing for two inventors will be J. Michael Jakes of Finnegan, Henderson, Farabow, Garrett & Dunner in Washington, and arguing for David J. Kappos, the head of the federal government’s Patent and Trademark Office, will be Deputy Solicitior General Malcolm L. Stewart.  The briefs and other filings in the case are available at this link on ScotusWiki.

Argument Preview

In 1981, the Supreme Court last decided a case spelling out the kinds of inventions that are eligible for patent rights under federal law.   Now, in the wake of major changes in the world of commerce, the Court will try to provide a modernized definition of patent eligibility.   Some experts say the outcome may affect the legality of more than 130,000 patents that already exist, and the legal fate of untold future inventions, especially in digital commerce. Read the rest of this entry »

Analysis

Sometimes, the Supreme Court seems not so concerned about the case actually before it, as it is about the next case: where might a decision in the first case lead in the future?  In lawyers’ shorthand, is the Court about to put a legal issue on a logical “slippery slope”? Will dire consequences occur if a ruling’s reasoning runs too far?  The Justices found themselves looking down slippery slopes on Monday, as they heard argument in an important case pitting state sovereignty against federal court authority, the Shady Grove Orthopedic case (08-1008).

One version of unwanted consequences, emerging from comments both from the bench and from a lawyer for Shady Grove Orthopedic Associates, was that the Court risked encouraging states to cut off entirely the right of consumers to join together to pursue their legal claims in class-action lawsuits in federal court.  A different version, also emanating from both the bench and a lawyer for Allstate Insurance Co., was that the Court risked overturning, by implication, an array of existing state laws defining what remedies consumers may seek for wrongs that are defined by state law.

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Analysis

President Obama on Wednesday signed into law a new Pentagon funding bill, and with his signature very likely generated a new issue for the Supreme Court when it reviews Kiyemba et al. v. Obama et al. in late winter — did Congress have the authority to put limits on transfers of prisoners out of Guantanamo Bay, Cuba?  A section of the National Defense Authorization Act — Sec. 1041 — seeks to assert congressional control over much of detainee policy for those held at Guantanamo.  (The text of Section 1041 has been reproduced here.)

(UPDATE: The President also signed into law on Wednesday a bill providing spending allowances for the Department of Homeland Security, containing a similar ban on releasing Guantanamo detainees into the U.S., and putting other restrictions on detainee policy. [The text of those provisions has been reproduced here.] They raise the same issue for the Kiyemba case.)

Congress did not say so, in specific terms, but the new provisions would appear to bar the government from carrying out a court order requiring that a detainee be released from Guantanamo to live in the U.S. — exactly the kind of order that the Kiyemba detainees once obtained, and are now seeking to reinstate.  That sets up a potential clash between Congress’s constitutional authority to legislate and the courts’ constitutional authority to provide remedies when they find an individual’s detention to be illegal.  In constitutional terms, it pits the Spending Clause against the Suspension of the Writ Clause.

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Analysis

With U.S. Solicitor General Elena Kagan now weighing what to do next on the hotly controversial EMILY’s List case, it already appears that her decision could have a major impact on next year’s national political campaigns, whatever choice she makes.  If the Supreme Court gets involved, or if it does not, the influence of money on federal politics may change fundamentally — in future presidential contests as well as, perhaps, the 2010 congressional campaign.

The case is EMILY’s List v. Federal Election Commission, a case decided Sept. 18 by the D.C. Circuit Court (the opinion is here), and newly brought into public focus after the FEC split 3-3 in a vote last Thursday, thus refusing to request en banc review by the Circuit Court (an FEC news release, with access to statements by the commissioners, can be found at this link).

The case  involves a successful challenge to a set of regulations adopted in 2004 by the FEC, seeking to curb high-volume spending by non-profit advocacy groups widely known as “527 corporations” — named for a provision of the tax code under which they were organized.  (The author of this post has prepared detailed background on how the case developed before the FEC vote last week; it can be read here.)

Republican-leaning groups like Club for Growth and Democratic-oriented groups like MoveOn.org, and others like them, together spent more than $400 million to try to influence voters in the 2004 elections for President and Congress.  EMILY’s List, a group that supports abortion rights and political candidates who share its views, failed to persuade a federal judge to overturn the restrictions last year, but a Circuit Court panel nullified them last month. 

With the FEC passing up a plea for the Circuit Court to reconsider, some groups that support strict curbs on 527 corporations are urging Solicitor General Kagan either to make that request, or to go on to the Supreme Court with an appeal (see a press release available at this site from Democracy 21, one of those groups). There is no doubt that Kagan could take the case to the Supreme Court now; legal analysts are not sure she has the option of seeking en banc review, or whether that was a choice left to the FEC.

If she does neither, then the new restrictions are gone.  As a result, non-profit 527s will be able to spend unlimited amounts of  “soft money” — that is, money raised outside the donation limits of federal law — to attack or support federal candidates or parties, can spend freely on voter drives, and can solicit unrestricted amounts from donors.  And, as one judge on the Circuit Court (Circuit Judge Janice Rogers Brown) noted, “Congress can do nothing about any of this.”  That is because the majority of the Circuit Court panel based its ruling on the Constitution — subject to change only by amendment of the basic charter.

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Analysis

President Obama, his legal team, military leaders and diplomatic agents, along with Congress, have been engaged for months in intense deliberations over the Nation’s policy on detaining individuals who have been captured during what is called the “war on terrorism.”  They have been able to do so largely without looking over their shoulders to see what the Supreme Court might do to limit their options.  That has just changed.

The Court voted Tuesday to rejoin the conversation, and did so in a way that, potentially at least, may re-shape the whole discussion.  What had been a matter of policy choice, domestic and foreign, could now be a matter of what the Constitution will permit.  And that is not an issue that the other branches of government could put off for very long by working out a deal to end the specific case that the Justices have just voted to hear; more such cases are on the way, and, in effect, the constitutional issue is sure to linger.  It is quite likely that the Court was aware of that prospect when it opted to grant review in Kiyemba, et al. v. Obama, et al. (08-1234).

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Analysis

Last February, Justice Antonin Scalia launched one of the verbal broadsides for which he is so well known — this time, a blast at the federal “honest services” law, a law that dates from 1988.  Though that law “consists of only 28 words,” Scalia noted, it has been “invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries…Without some coherent limiting principle to define what ‘the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

Dissenting alone as the Court denied review in Sorich, et al., v. U.S. (08-410), Scalia said he would have granted review to “squarely confront both the meaning and the constitutionality” of the statute, known as Section 1346.  “Indeed,” he concluded, “it seems to me quite irresponsible to let the current chaos prevail.”

That was in February.  Since then, at least four Justices — the number it takes to grant review of a case — have been willing to “squarely confront” at least the meaning, if not also the constitutionality, of Section 1346, and to do so repeatedly.  Three times — once in May, once in June and once on Tuesday — the Court has voted to hear cases testing the scope of the “honest services” law. Each time, it has done so by turning aside arguments against review by the U.S. Solicitor General.

It now is appropriate, it seems, to ask the question: when the current Term of the Court has come to an end, what will be left of the federal law that makes it a crime to deprive someone of “honest services,” in the private or public sector?

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Analysis

Justice Stephen G. Breyer made repeated efforts on Wednesday to keep open the chances that an $18 million settlement of a major copyright dispute may yet get a full hearing on its fairness in federal court, but he found little support among other members of the Supreme Court as they pondered the scope of a federal court’s power over copyright lawsuits in Reed Elsevier v. Muchnick (08-103).  The initial impression of the hour-long argument was that the settlement might not survive this test.

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Analysis

Haggling over what issues are actually before them, the Supreme Court Justices on Wednesday turned a major case on the constitutionality of religious monuments on government property into what seemed like a mere shadow of its former self.  As the case of Salazar v. Buono (08-472) reached the Court, it looked like a significant new test of such displays, of who could challenge them, and of how the government could react if told to take them down.  But, after an hour of oral argument, only the last of those was still in play, and it appeared to have been pared down to its specific facts, with few if any wider implications.

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The Supreme Court will hear argument at 10 a.m. Wednesday in Salazar v. Buono (08-472).  U.S. Solicitor General Elena Kagan, in her second argument in her new post, will represent the government and Interior Secretary Ken L. Salazar, as well as others.  Peter J. Eliasberg of Los Angeles, the managing attorney for the ACLU Foundation of Southern California, will be making his first Supreme Court argument, representing Frank Buono, the challenger to the Christian cross that stands in the Mojave National Preserve in California.

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The Supreme Court returns to its elusive pursuit of clarity about the constitutionality of placing religious symbols on public property in a case that is complicated by questions over who has a right to challenge such displays and over Congress’s power to protect such a symbol by transferring it to private hands.

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The Supreme Court will hear oral argument at 11 a.m. Wednesday in Reed Elsevier Inc. et al. v. Muchnick et al. (08-103).  Only eight Justices will hear the case, since Justice Sonia Sotomayor is recused.  Arguing for newspapers and periodical publishers and for companies that operate electronic databases will be Charles S. Sims of Proskauer Rose in New York.  That side is supported by the federal government, to be represented by Ginger D. Anders, an assistant to the U.S. Solicitor General. At the invitation of the Court, Ohio State law professor Deborah Jones Merritt will defend the Second Circuit ruling at issue, since neither side in the case would do so.  [Disclosure:  Howe & Russell, P.C. represents respondents Irvin Muchnick et al., but the author of this post operates independently of the firm.]

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A Digital Age case that may have a broad cultural impact could revive an $18 million deal, and which may clarify federal judges’ power to approve the settlement of a major lawsuit, comes before the Supreme Court in a lingering dispute over the legal rights of those who make their living as free-lance writers.

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Analysis

Congress’ attempt ten years ago to ban animal cruelty, by banning video and other depictions of it, had its first constitutional test in the Supreme Court Tuesday, and appeared to have failed.  Despite efforts by an Obama Administration lawyer to show that Congress wrote carefully and narrowly, most of the Justices strongly implied that the law probably goes too far — or at least was so vague that no one can know just what is illegal.  Only one Justice, Samuel A. Alito, Jr., seemed tempted to support the law as is.

The case of U.S. v. Stevens (08-769) tests the constitutionality of the 1999 law that made it a federal crime to make and sell commercially “any visual or auditory depiction” of killing or seriously abusing a living animal, if the conduct is illegal under either federal or a state’s law.  [Disclosure:  Akin Gump represents respondent Robert Stevens in the case, and blog contributor Patricia Millett argued on behalf of Mr. Stevens today.  However, the author of this post operates independently of Akin Gump and is not involved in the firm's litigation.]  The Justices, loosing a series of hypotheticals on what kind of conduct could not be depicted legally under the law – from bull-fighting to using geese to make foie gras, suggested that the statute likely would reach far beyond what Congress was actually seeking to ban.

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Analysis

The Pentagon’s new policy to control who will be detained as a terrorism suspect at the U.S. military prison at Bagram, Afghanistan, is based on a concept of the enemy that has not withstood legal tests in federal habeas courts in the wake of the Supreme Court’s constitutional habeas ruling in Boumediene v. Bush last year.  But that is no surprise at all: this is strictly a within-the-military policy, court papers filed Monday made clear. The Pentagon documents that spell out the new policy can be downloaded here.

The policy is simply not designed for the civilian court process for habeas cases and, in fact, it is not meant to be reviewed by any civilian court.  The military chain-of-command is its overseer.  In a court filing, Obama Administration officials indicated that they will resist any effort at judicial oversight — what it calls “second-guessing” — of decisions made about Bagram detention.

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