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?

J. Michael Jakes, a Washington lawyer arguing for a patent on that invention, faced a seemingly unending litany of hypotheticals to test how far he would take his plea for wide access to a patent monopoly.  Justice Sonia Sotomayor wondered if a patent would be available on “a method of speed-dating,” Justice Ruth Bader Ginsburg asked about methods for avoiding corporate takeovers or picking a jury, Justice Stephen G. Breyer brought up a successful businessman’s right to protection for “how he made his money” and a method for teaching antitrust law that “would keep 80 percent of the students awake,” Chief Justice John G. Roberts, Jr., wondered about a business model counseling “buy low and sell high,” and Justice Anthony M. Kennedy questioned patent rights for someone who went to the Bureau of Statistics and worked out a table of life expetancy.  On and on the hypotheticals went.

While Jakes was prepared to say that patent law “does exclude some things,” such as a poem or another work of literature, he answered many of the hypotheticals by saying that, potentially, some of them would qualify.  He was arguing for an expansive scope of patentability, repeatedly emphasizing the simple need to be “new and useful,” and he clearly did not want to foreclose many possibilities.  “If it is novel and unobvious, it should be patentable,” he said straightforwardly.

Justice John Paul Stevens told Jakes bluntly that “none of our cases” supported his position, but the lawyer did not back down, saying the Court had never addressed one like this.   Jakes tried to take advantage, as he had in his brief, of the patent success for Alexander Graham Bell’s telephone, suggesting that that was a process that manipulated electronic signals, but Justice Scalia retorted that it was actually a “transformation” within the Patent Act because it started with sound turned into electricity and turned back into sound at the receiver.

Deputy Solicitor General Malcolm L. Stewart, speaking for the Patent Office and for the Federal Circuit Court’s patentability test, began by contrasting Dale Carnegia’s writing and Bell’s telephone.  Bell’s invention, he said, “was in the realm of the physical,” while Carnegie’s book was about “public speaking and negotiation, and didn’t deal in the realm of the physical.”

Justice Samuel A. Alito, Jr., promptly asked whether “this is a good case” to get into the broad area of patentability.  Stewart suggested it was, at least for a narrow ruling validating the Federal Circuit’s test, leaving harder questions for down the road.  But Justice Sotomayor then suggested a concern that seemed to be shared by at least some of her colleagues, commenting that “I have no idea what the limits of the Federal Circuit rule would be in the medical field or the computer world.”  Justice Breyer chimed in that the lower court had left “a lot for the future.”

Stewart, while not pressed very hard, did not escape entirely without some trouble.  Chief Justice Roberts told him that he had understood the government’s argument until one of the final footnotes in the merits brief.  There, in footnote 30, the Solicitor General’s brief said the Bilski/Warsaw claims might satisfy the Federal Circuit test if they had tied it to “machine implementation,” such as using a computer network.

“That takes away everything you said in 54 pages,” the Chief Justice commented acidly.  Stewart backed off a bit, saying that the risk-management notion would not be patentable if a computer were “just used to crunch numbers.”  It would have to have something that “gives it functionality.”

Justice Breyer also joined the Chief, suggesting that, if all that were needed were to tie a theory to a computer to make it patentable, “all you would need to do would get someone who knows computers asnd he can set up every business application” to make it eligible.  Again, Stewart responded by urging the Court to keep its decision narrow, agreeing with a comment by Justice Ruth Bader Ginsburg that the case could be decided “without making any bold steps.”

Still, after this argument, it might be a fairly “bold step” to decide the case at all.  Whether the Court is prepared to rule may depend upon the degree to which it accepts the assurances of the Solicitor General that the Federal Circuit would modify its test if it threatened to stifle “emerging technologies.”

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.

The Chief Justice’s alternative would apparently be a declaration that the Constitution’s Eighth Amendment ban on cruel and unusual punishment required judges to take the offender’s youth into account in setting any sentence for a term of years, then judge whether that sentence was “proportional” both for an offender of that age and for the particular crime.  The question on how attractive that option might be — say, to Justice Anthony M. Kennedy — was whether that would be a meaningful inquiry that would in reality give youths’ some chance of avoiding having the state give up on them entirely.

On another issue at stake, in the Sullivan case, whether the Court had authority even to hear that case on the constitutional question, the strongest hint was that the Court might find that Florida law had barred that appeal.  If so, that would not mean, however, that Joe Sullivan, the youth in that case, would not benefit from a ruling in the case of Terrance Graham providing some assurance that youth could be a decisive factor in long-term sentences for minors.

After the Chief Justice and Justices Samuel A. Alito, Jr., and Antonin Scalia had opened the questioning by commenting on the difficulty of drawing a specific constitutional line, Roberts then moved in with the suggestion that the Court not rule categorically — for either side — but rather go for a proportionality analysis.

The Chief Justice, noting that the Court in the Roper v. Simmons in 2005 decision had said that “death was different” but also that being a juvenile also was different, asked: “Wouldn’t it make sense to incorporate the consideration of juvenile status into the proportionality review? So that if you do have a case where it’s the 17-year-old who is one week shy of his eighteenth birthday and it the most grievous criime you can imagine, you can determine that in that case life without parole may not be disproportionate.”

Terrance Graham’s lawyer, Bryan S. Gowdy of Jacksonville, said that scientific studies accepted by the Court in Roper indicated that one cannot make a determination, before age 18, whether a juvenile will or not reform as he grows up.  The comment only produced more quibbling from the conservative Justices on how an arbitrary line could be justified.

Justice Sonia Sotomayor soon joined in to question what makes anyone more capable of reading the future development of a juvenile simply because he had passed his 18th birthday.  Gowdy said that the Court “had to draw the line somewhere,” and, in Roper, he said, the Court chose 18.  Justice Scalia quickly retorted: “Only if we accept a categorical approach.” Otherwise, he said, “we would not have to draw a line.”

The state of Florida’s lawyer, Solicitor General Scott D. Makar from Tallahassee opened his argument by contending that a categorical bar on life-without-parole for minors would run counter to trends in treating juveniles over past couple of decades, frustrating states in their attempts to deal with rising juvenile crime while still remaining sensitive to the needs of youthful offenders.  Soon, he, too, encountered the Chief Justice’s hostility to a categorical rule on the state’s side, that life-without-parole was always allowed.

After Makar had said that Florida acknowledged that youthful age “does matter,” Justice Sotomayor asked for help in drawing the line where life-without-parole would be permissible.  Would it be unconstitutional if the youth were only 10? she asked. If that is too early, she said, why would 14 or 15 not be too early?  Makar would only concede that “I think it [age] does matter.”  Sotomayor was not satisfied, next asking about a no-release sentence for a five-year-old.

Chief Justice Roberts interrupted to test on what legal basis Makar was suggesting that age does matter, and then suggested himself that it would be the Eighth Amendment.  And, once again, he suggested that, under that Amendment, one could “just say age has to be considered.”

Makar’s toughest questioner was Justice Ruth Bader Ginsburg, who sharply criticized Florida’s lack of any “proportionality” review under its own state laws, and drew unfavorable comparisons between state restrictions on juveniles on drinking, driving and marrying even while allowing sentencing as if they were adults.

The Sullivan case, argued section, brought some of the same exchanges, but was dominated by questions of whether the Court had jurisdiction to hear the case.  Justice Ginsburg commented very early to Joe Sullivan’s lawyer, Bryan Stevenson, that “before you get to the particulars of this case, there is a serious question” about whether Florida law barred the challenge to the no-release sentence.

Several Justices said that, if the Court were to decide that the Roper decision was a death penalty-only case and thus did not apply to life sentences, then Florida’s “procedural bar” did, in fact, prevent Sullivan from making his challenge in 2007 to a sentence he received in 1989.  “You’re out of court” if Roper does not apply, Justice Scalia said.

When Stevenson did get a chance to discuss the merits, he sought to persuade the Court that, whatever line it might draw against life-without-parole for minors, it definitely should rule it out for 13-year-olds.  Once again, though, he encountered the Chief Justice’s apparent agenda.  “If we require consideration of age under the Eighth Amendment,” Roberts commented, “we avoid all these line-drawing problems.”

Makar, making a return appearance in the Sullivan case, had to spend much of his time trying to clear up confusion about how often the life-without-parole sentence is given to juvenile offenders, in Florida and elsewhere.  With Justice Stephen G. Breyer leading the questioning of the state’s lawyer, the difficulties of drawing age lines that would properly reflect the capacity for “moral responsibility” became more evident.

Breyer did draw from Makar the minimal concession that, if the Court were to rule in the Graham case that Roper did apply to no-release sentences, and that were made retroactive, then Sullivan would be allowed — under Florida law — to file a new challenge to his sentence.

The Court is expected to decide the case no earlier than January.

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.

Background

The Supreme Court has said repeatedly, as it decided death-penalty cases (often putting limits on such sentences, or ruling them out altogether in some situations, that “death is different.”  That perception has led to a complex jurisprudence of capital punishment, including a flat ban on that penalty for some specific crimes (rape, for example) and some individuals in a specific group (minors and mentally impaired individuals).

The Court, however, has not yet constructed a full constitutional guidebook for long prison sentences, although it has settled on one principle: a sentence for a term of years in prison will be struck down if it is “grossly dispoportionate” to the crime, judged on a case-by-case, rather than across-the-board, basis.  Applying that test, the Court looks at how serious the crime was, how harsh the penalty was, and how a sentence compares to that for other criminals in the same area, and in other areas, for the same crime.

Florida’s First District Court of Appeal has taken that principle to mean that each case must be judged on its own facts, so that a blanket rule is not to be adopted– either for a category of crimes, or a specific group  of criminals.  Thus, for juvenile offenders, it said in one of the cases now before the Supreme Court: “This court declines to implement a per se ban on the sentencing of juveniles to life imprisonment.”  And, in that case, it found that the sentence of life without possibility of parole was not “grossly disproportionate” to the crime.

In reaching that conclusion, the state court started with the proposition that “death is different.”  And that, in brief, provides the test for the Supreme Court as it examines a life prison sentence, with no chance  of release, for a youth who committed a non-homicide crime while still a minor.  But the Court also is being asked to reinforce the cultural notion that “being young is different,” for criminal responsibility.

The Court already has given some indication that it will at least begin its analysis by looking at different scenarios.  Instead of granting review of a single case involving a life term for a minor whose victim was not killed, the Court simultaneously accepted two cases, did not join them for review, and set them for hearing separately. At least at the outset, it appears that two rulings, not one, are likely to emerge.

There are several differences between the two cases: each youth’s age at the time of the crime — one was 13 when he actually received the life term, the other was 17 at the time of the crime and 19 when sentenced; one youth committed multiple crimes as a younger teenager, the older youth had several crimes on his record when given the life sentence after getting lenient treatment after his first crime; one case brought a full review in the lower court of the sentencing issue, the other did not; one is clearly within the Court’s authority to hear the constittional issue, the other has some procedural doubt about it.

No one outside the Court can know which of those differences may have persuaded the Court to grant both cases.  However, that may begin to become clear when the Court hears oral argument.

Taking the cases in the order in which the Court will hear them on Nov. 9, begin with the case of Terrance Jamar Graham, of Jacksonville.  In July 2003, he and two accomplices went to a barbecue restuarant in Jacksonville with the aim of robbing it.  When the manager would not give them money, one of the youths hit him with a steel bar; Graham then fled the scene. Two months later, his father reported to police that he thought Terrance was committing burglaries with other youths.

He was arrested and charged — as an adult — with one count of burglary with an assault or battery — a first-degree felony that could have led to a maximum sentence of life.  He was also charged with attempted armed robbery, a second-degree felony.  He pleaded guilty to both, and was given three years on probation added to nine months in county jail.

Six months after getting out of jail, he was arrested on charges of a new felony — home-invasion robbery, and eluding police.  By then, he was 17 years old.  After this incident, prosecutors charged him with violating his probation for the first crime. He admitted to the eluding charge and, when asked by police, admitted other robberies.  By the time his sentencing actually occurred, Terrance was 19.

The judge lectured him on his wayward life.   “I don’t understand why you would be given such a great opportunity to do something with your life [a reference to the leniency on the first time] and why you would throw it away….We can’t help you any further…If I can’t do anything to help you, if I can’t do anything to get you back on the right path, then I have to start focusing on the community and trying to protect the community from your actions.”  For the probation violation, the judge imposed the sentence of life without possibility of parole.

Relying on the Supreme Court’s 2005 decision in Roper v. Simmons, ruling out the death penalty for any minor who committed murder, Terrance’s lawyers contended that it would be cruel and unusual punishment under the Eighth Amendment to sentence him — or any juvenile — to life without parole.  Ultimately, that argument, and others, were rejected by the Florida Court of Appeal, applying what it understood to be the Supreme Court standards for judging whether a term of years in prison was “grossly disproportionate,” upheld the sentence, and the Florida Supreme Court refused review.

Joe Harris Sullivan of Pensacola, Fla., was 13 years old in 1989, when he and two other youths broke into an elderly woman’s home to burglarize it.  The woman was not home at the time; the youths took jewelry and some coins, and left.  Later that day, Sullivan and one of the others returned, and one of them sexually assaulted her, vaginally and orally; she also was beaten.   She suffered bruising and a vaginal injury that required surgery.

Sullivan was identified at trial, by the victim’s somewhat hazy recollection of the voice of her attacker (whom she had not seen, because her head was covered).  One of the other youths said Sullivan was the attacker.  Joe was convicted.  At sentencing, prosecutors listed 17 prior crimes in the prior two years, and noted that the youth had spent time in juvenile detention facilities.  The judge concluded that, given the record and the sexual battery conviction, Joe should be treated legally as an adult under Florida law; he was sentenced to life in prison for that crime.

His lawyer at the trial (later disbarred) filed a post-trial brief saying there were no legal issues to be raised.  In 1992, Joe, without a lawyer’s help, filed a post-conviction challenge in state court,  but that failed and he did not appeal.   When a lawyer agreed to help him, and sought to prove Joe’s innocence through a DNA test, that, too, failed because all such evidence had been destroyed.

After the Supreme Court’s Roper decision against the death penalty for juveniles, lawyers for the youth filed a new challenge, claiming that the Justices had created a new constitutional right, and Sullivan should be allowed to take advantage of it. 

A state court rejected the challenge in a brief ruling, finding that it had been filed too late.  In its decision, the Circuit Court turned down Sullivan’s claim that he could not have raised his constitutional claim earlier, because the Supreme Court had not yet decided Roper; the state court said Roper was a capital case, only.  His plea was based on an exemption under Florida law, allowing an after-deadline filing based on the argument that a new constitutional right had emerged in the meantime. If the issue were properly before it, the state tribunal said, it would reject it anyway, since the Roper decision did not even apply to his claim.

Before the Graham and Sullivan cases had reached the Supreme Court, lawyers for Christopher Frank Pittman, a South Carolina youth who had committed a double murder — the victims were his grandparents — when he was 12 years old and was sentenced to 30 years in prison without a chance for parole asked the Supreme Court to extend the Roper rationale to such long prison terms.  The Supreme Court denied review without comment on April 14, 2008.

The following November, Terrance Graham’s lawyers appealed his case to the Supreme Court.  The state waived a response, but the Justices asked for one on Dec. 15.  Earlier in December, Joe Sullivan’s lawyers appealed his case; again, the state waived a response, and the Justices asked for one on Jan. 21.  The Court examined the two cases more than once, then granted them, separately but simultaneously, on May 4, 2009.

Petitions for Certiorari

Terrance Graham’s lawyers asked the Court on Nov. 20 to hear his case, in a spare petition with only six pages of argument.  It directly posed the question: whether it was cruel and unusual punishment under the Eighth Amendment to impose a sentence of life in prison without a chance of parole for a juvenile who committed a crime in which the victim was not killed.  The petition insisted that the sentence was only for his first and only conviction — armed burglary and robbery — and not for the other incidents that the sentencing judge had taken into account.

It quickly ran over arguments borrowed from the Roper decision, cited what it said were conflicting rulings in state courts, and suggested that the Court do “the humane thing” of hearing his plea. It argued that “imprisoning a juvenile for life is inhumane where the juvenile did not commit a homicide.”  He said he was given the same sentence he would have received had he “intentionally murdered someone” — a fact, since Roper had ruled against a death penalty for a minor convicted of a homicide.

The state, asked by the Court to respond, spent some effort in urging the Court not to hear the case in reviewing Graham’s criminal record, including offenses of which he was not convicted but which he had admitted to police. It called him “a violent recidivist.”  It disputed the claim that state courts were divided on juvenile sentencing and said that many offenders younger than Graham had been given life prison sentences for violent crimes, especially where the youth was a repeat offender.

Roper, it argued, had to do with death sentences only, and for other sentences, it said, the Court had always used a proportionality analysis.  It added that Graham got exactly the sentence that the Supreme Court had allowed for juveniles in Roper.

Joe Sullivan’s counsel took his case to the Court on Dec. 4, with a fully developed petition that dwelled very heavily upon his age when sentenced — 13.  “In the vast majority of states,” it said, “no one Joe’s age has received a life-without-parole sentence.”  Only one other 13-year-old in the nation, it said, had received a sentence for a non-homicide, and that youth, too, was in Florida.  With sharp rhetoric, the petition suggested that the reality of Joe’s situation was that he had been “sentenced to die in prison for sexual battery.”  His case, it said, was “freakishly rare.”

Besides raising the Eighth Amendment issue squarely, the Sullivan petition poses a second question: whether the Court would grant review of his case years after his sentence — the passage of time that would rule out any chance he could challenge his life term in federal court.  As a basis for using the Court’s discretion to hear the appeal, his lawyers suggested that the Eighth Amendment claim he was making had only “recently evolved” — in Roper, of course, in 2005.

The state, responding at the Court’s urging, re-phrased the question it deemed at stake, as to whether state courts had acted unconstitutionally when they enforced state procedural rules and dismissed his challenge as simply having been filed too late.  The state thus questioned whether the Court had any authority to hear Sullivan’s complaint about his sentence.

“What Sullivan is asking this court to do is to treat his petition as if this Court was conducting a direct review of his conviction,” the state said.  Sullivan’s lawyers, it added, had not identified any post-conviction case in which the Court conducted what amounted to direct review of a state court ruling.   The brief in opposition also argued that Sullivan had not properly presented his Eighth Amendment challenge in state court, and, in fact, the state court did not rule on it because his claim was barred under state procedural rules.
Merits Briefs 

Lawyers for Terrance Graham filed a merits brief that far more broadly explores the legal issues than their petition had, and in the process they put forth a complex legal rationale than seeks to counter every argument the state had mounted against his Eighth Amendment challenge. The brief attempted to meet directly the state’s argument that “death is different” — the basis for the state’s contention that the Court’s Roper analysis does not apply to a sentence of a term of years, like life. The lawyers also sought to turn to their advantage the state court’s rationale that term-of-years sentences are to be judged by a “grossly disproportionate” standard. They managed to do so without departing from the basic strategy that a life sentence without parole is always unconstitutional for a juvenile’s non-homicide crime. 

First, the brief contended that the only thing different about the Supreme Court’s special jurisprudence in capital cases is that it sets up a procedure for deciding, in a specific case, whether the punishment of death is appropriate in that case alone. That procedure does not have anything to do with a non-homicide crime by a juvenile, the brief asserted. 

To find whether a death penalty is justified in a given case, the brief noted, there has to be an “individualized determination” that death is proper for that individual, even if that penalty otherwise would fit the crime. That includes individual characteristics that might make death inappropriate. Graham does not seek such an individualized determination, and, his lawyers contend, it is not possible with a juvenile to know how they will turn out in the future. Roper itself, the brief noted, ruled out such predictions as sentencing factors for juveniles. 

Second, the brief suggested that a judge evaluating a sentence’s validity, whether it be death or some term of years, must follow the same analytical path: in neither situation can the sentence be “grossly disproportionate” to the crime. Using that mode of analysis, “Graham’s [life] sentence is grossly disproportionate when viewed through the prism of his status as a juvenile offender,” according to the brief. It added that the characteristics of juveniles, as Roper found, make them less culpable for criminal conduct. Life without parole, for a young offender whose character is still being formed, does not serve the state’s desire for retribution or deterrence, nor does it leave the juvenile with any chance to become rehabilitated. “Juveniles are more malleable and capable of reform than adults,” the brief said, so “it is cruel to simply ‘give up’ on them,” as life without parole does. 

Third, in this individual case, those legal principles, the brief contended, demonstrate that his sentence was too great. The judge concluded that Graham “was incapable of ever being rehabilitated or deterred from committing more offenses.” 

Going beyond those core points, the Graham brief contended that life-without-parole for a juvenile has not been mandated by Florida’s legislature, thus leaving it to the unchecked discretion of a single judge. And it closed with an argument focusing on the claim that Florida leads the nation in imprisoning juveniles for non-homicide crimes, accounting for 70 percent of all such prisoners. 

The merits brief made one concession that narrowed somewhat the sweep of the Eighth Amendment claim: it said that it was not challenging a life-without-parole sentence for a juvenile whoi was shown to have an intent to kill, even if the victim did not die. Thus, it said, “offenders convicted of attempted murder and felony murder would not be considered ‘non-homicide’ offenders.” 

The state’s merits brief in Graham begins with a review of the history of violent crime in Florida, showing that, in part, a crackdown on juvenile offenders resulted in sharp declines in youths’ serious crimes, even while continuing to be sensitive to the special circumstances of young age. The state, it argued, has a carefully calibrated system for deciding when to try a juvenile as an adult, and, it noted, Graham did not challenge being treated as an adult, so “his attempt to inject age at the sentencing phase is unwarranted.” 

The state also warned that, if Graham is allowed to bring in the age factor after submitting without protest to adult treatment, it would “undermine nationwide” the states’ systems of transferring young offenders out of the juvenile justice system when they commit adult crimes. 

To Graham’s heavy focus on the characteristics of youthful attitudes, capacities and conduct, the state argued that Florida hardly ignores those attributes. “Our society has accounted for juvenile status in virtually every aspect of our laws and traditions,” and, in keeping with that, Florida applies massive resources and special programs for juveniles who commit crimes or are at risk of doing so. This is a field, the state contended, in which states must be left free to decide on the mix of strategies. 

The state’s rights argument also is energetically asserted as the Florida brief assailed the categorical rule that Graham was advancing. A whole host of questions will arise if such a rule is mandated constitutionally, the brief said, ranging from what is “life” to what is a “non-homicide” crime, and to reestablishing a system of parole to help a life-sentenced juvenile work toward rehabilitation. “Under Graham’s theory, any term-of-years sentence would be problematic,” it asserted. 

Joe Sullivan’s merits brief also sought to neutralize the death-is-different rationale upon which the stated relied so heavily in trying to make Roper inapplicable to juveniles’ life sentences. It did so with a straightforward argument: death and life-without-parole are, in their essential features, not really different at all. The key to either, it argued, “is that it imposes a terminal, unchangeable, once-and-for-all judgment upon the whole life of a human being and declares that human being forever unfit to be a part of civil society.” 

Given that, it went on, Roper “understood and explained why such a judgment cannot rationally be passed on children below a certain age. They are unfinished products, human works-in-progress. They stand at a peculiarly vulnerable moment in their lives. Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not.” 

Focusing again on Joe’s age when he committed the crime that drew the life sentence, his lawyers said that at 13 it is clear that no one could make “an irrevocable judgment” that would condemn him “to be imprisoned until death.” While it went on to concede that there may be ages above 13 at which the Court might draw a constitutional line against life-without-parole sentences, it should at least be set at 13. Such sentences at that age, it added, “are so vanishingly rare as to make their repudiation by contemporary American society unmistakable.” 

The brief, like that for Graham, sought to discredit the life sentence for juveniles by noting that it “is not the result of legislative decisions” that that was an appropriate punishment. Rather, it said, the imposition of such a sentence on a young offender is the result of two other legislative thrusts: “changing the boundaries of exclusive juvenile-court jurisdiction so as to make more children subject to adult-court prosecution,” and “legislation increasing the number of adult crimes punishable by life imprisonment without parole.” Still, even with that changing legal environment, is remains very rare for a 13-year-old – or even a 14-year-old – to be sentenced to life for a non-homicide crime, the brief said. In those two age groups, only 73 youths nationwide have received such sentences, it added. “The available indications are that the numbers rise sharply from age 15 upwards,” thus suggesting a quite clear constitutional line. 

The Sullivan brief does not discuss, or even list, the second question that his petition had posed and which, presumably, the Court also had agreed to hear: whether the Court would even allow Sullivan to raise before it his Eighth Amendment claim. That might well be an issue of the Court’s jurisdiction, and the state, in its merits brief, focused directly on it at the outset.  

“Sullivan has ignored the fundamental question of whether jurisdiction exists,” the state brief said. “Given that an adequate state law basis exists for the trial court’s ruling below [the lateness of the claim], and given tha Sullivan could have made the same Eighth Amendment claim now raised in his direct appeal in 1990…, his claim is procedurally barred and jurisdiction is lacking.” 

The state also contended that Sullivan’s merits brief had tallied higher numbers for young offendersy who received life sentences, and also, by implication, suggested that he was advocating no life term even for a youth who committed murder. The latter, the state argued, resulted from including in the total of 13 and 14-year-olds serving life terms some who had committed homicides. The brief then went on to suggest that it was understandable that “the data continue to evolve,” because of the difficulty in evaluating the available data. The material now available, the state argued, was generated by those who oppose life terms for juveniles, raising “significant questions of accuracy and reliability.” 

As its final layer of response, the state’s merits brief argued that Sullivan has failed to show, using proportionality analysis, that his life sentence was grossly at variance with “the brutal crime of sexual battery.” 

(In his reply brief, Sullivan challenges the state’s suggestion that the Court lacks jurisdiction to hear his Eighth Amendment claim, asserting that state courts actually ruled on that claim before concluding that Sullivan was barred from making it when he did.) 

The amici briefs (14 supporting Graham and Sullivan, seven behind the state, and one supporting neither side) engage primarily in a debate over the development of the juvenile brain, and the meaning of that phenomenon in the context of criminal sentences, with a secondary debate over society’s proper response to violent crime. 

Some of the medical and scientific data on which advocacy and research organizations relied in supporting the Eighth Amendment challenge – developmental psychology and neuroscience – drew sometimes sharp criticism from the other side. For example, the conservative advocacy group, the Center for Constitutional Jurisprudence, attacked the data as “advocacy masquerading as science…’Matching neurological data to legal criteria can be much like performing a chemical analysis of a cheesecake to find out whether it was baked with love’.”

However, the other side advanced its data without apology. For example, a group of juvenile correctional and service agencies asserted flatly that “empirical data, medical science and practical experience overwhelmingly snhows that juvenile offenders are distinct from adult offenders and that those distinctions evince a unique potential for rehabilitation.” The assessment of that potential, that brief contended, can only be made after a juvenile has moved beyond adolescence. Much of that research, various groups pointed out in briefs, has already been accepted and relied upon by the Supreme Court in its Roper decision.

Analysis 

The critical issue for the Court, having already decided that there are constitutional differences between juvenile and adult criminals, is whether that difference counts the same – or less – when the punishment a youth faces is not execution. It is not likely to abandon altogether its reliance just four years ago upon research data supporting those differences. But it must now reexamine that data as it considers whether life with no chance of parole can really be distinguished from death, and, perhaps a more difficult inquiry, does the distinction between the two vary with the age of the offender? 

If the meaning of the Eighth Amendment is the underlying constitutional question, the closely related moral question for the Justices is whether a denial of any chance at rehabilitation – or future freedom – is close to being the loss of “life,” at least in some dimensions of what “life” means. As judges, the Court’s members will want to be comfortable defining the consequences of that denial in constitutional terms, but they will feel the tug of the moral question as they do so.

Does the view of the sentencing judge in Graham’s case — “We can’t help you any further” — represent a defensible constitutional judgment when the individual standing in the dock is under age 18? Is it a valid judgment because the individual committed a crime after passing the 18^th birthday, but problematic before that?

Even if the Court were to answer the question with a “yes” at least when the offender is under 18, that may have only begun the inquiry. How much below 18 is that judgment a sound one under the Eighth Amendment? Sullivan’s lawyers suggested a line, perhaps, at age 15; below that, life without parole is invalid, but not at 15 or above. The Court would then have to justify the dividing line, with constitutional reasoning, even if informed by science.

In Graham’s case, another difficulty for the Court may be in judging at which age the Eighth Amendment may count for him: 16, when he committed the crime, just short of 18 when he violated probation, or 19 when actually sentenced to life without parole. In Sullivan’s case, the Court may first have to satisfy itself that the Eighth Amendment is properly before it. 

In short, the inquiry may not be as easy as simply deciding whether Roper v. Simmons is only about death sentences, or whether it has a wider meaning and impact.

———-

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. Background

Just because someone comes up with a bright idea, even a completely original one, does not mean that they can get a patent on it.  To be eligible for the legal right to the exclusive use of an invention, or to license others to do so for a fee, an idea has to be made into something useful; in other words, the idea has to do something, in practical, real-world terms.  If it doesn’t, the idea remains an unpatentable abstraction.

Under the federal Patent Act as it now reads, four kinds of inventions or discoveries are patentable, provided that they are “new and useful.”   One is a process for doing something practical.   One is a machine that produces an item or a result.  A third is a creation, or “manufacture,” that turns raw material into something new.  And the final one is a mixture or combination of substances.  The Supreme Court is now focusing, in the case of Bilski, et al., v. Kappos, on the first one: a process.  At an earlier stage of patent law, an invented process was considered to be one of the “useful arts,” as opposed to a “fine art,” such as a portrait.

In 1981, in its decision in Diamond v. Diehr, the Court provided a definition of “process,” saying the clue to a patentable process that did not involve a particular machine was that it transformed and reduced an article “to a different state or thing.”  Picking up on both parts of that definition, the specialized appeals court that decides how to apply the Patent Act to new inventions, the Court of Appeals for the Federal Circuit, has now spelled out the only kinds of process it would find eligible for a patent: it has to be”tied to a particular machine or apparatus,” or it has to “transform a particular article into a different state or thing.”  That is now commonly referred to by the shorthand phrase, the “machine-or-transformation” test.

That test emerged at the end of October 2008, in a Federal Circuit en banc case involving an invention by Bernard L. Bilski and Rand A. Warsaw.  While some of the focus in the case necessarily remains on the details of their invention, and whether it fits within the Patent Act’s reach, the controversy has taken on a more fundamental character, asking the Act’s most basic question: what is patentable?

The case has generated high levels of interest here and abroad.  A wide array of amici, totaling 38, joined in the case at the Federal Circuit, and that intense interest has been sustained as the case has moved forward in the Supreme Court, with 68 amici filings on the merits.  It is the most-watched patent case in years, with many analysts speculating on how the outcome will affect innovation as the bounds of what is patentable are regularly being tested in an era of rapidly changing technology.

In seeking a patent, Bilski and Warsaw told the Patent Office in 1997 that their idea was a highly useful one: using complex mathematical formulas, they could tell a business how to hedge against risk due to the rising and falling of prices of raw materials that were used to produce something — say, to generate electricity.  Commodities prices often fluctuate quite widely, because of market forces or even changes in the weather, so these two inventors figured out ways to manage what they called “consumption risk.”   It is, they claimed, of benefit both to businesses and to their customers.

An example that lawyers for Bilski and Warsaw now use is this: “A school district with a fixed tax base and budget for heating or cooling requirements can be protected from yearly fluctuations in weather, while the suppliers are protected from the opposite effect of such fluctuations.”  In other words, the school district can be insulated from spikes in demand — and rising prices — while the suppliers can hedge against a weakening of demand — and lower prices.

In effect, what these inventors claimed was that they had created a method of doing business by evening out risk among those in an ongoing economic transaction.  One distinctive feature of it — and this became a legal problem for the inventors — is that it is not tied to a machine. While Bilski and Warsaw say that a computer, or modern telecommunications networks, may actually be used in employing their idea, that is not essential to its utility.  It is thus being treated as if it were, technically, a “non-machine” invention.

A patent examiner rejected the invention, finding it merely allowed manipulation of an abstract idea, solving a math problem.  Next, a patent appeals board agreed with the examiner, concluding that Bilski and Warsaw’s risk management formulas involved only non-physical manipulation, beyond the scope of the patent law.  The case then moved on to the Federal Circuit; before a three-judge panel could rule on the case, the en banc Court took it on, and ultimately ruled against the Bilski-Warsaw invention.

If the ordinary meaning of “process” were used, the Circuit majority conceded, this invention would qualify because it does involve a series of actions or operations bringing about an end.  But, it went on, the Supreme Court has given the word a narrower meaning in the Patent Act.  With some hesitation, it translated the Supreme Court’s Diamond v. Diehr comment about “the clue to patentability of a process claim” into the machine-or-transformation test.  It then found that the Bilski-Warsaw invention “entirely fails” that test.  One of the three dissenting judges complained that the test “links patentability to the age of iron and steel at a time of subatomic particles and terabytes.”

In late January 2009, the large intellectual property law firm, Finnegan, Henderson, Farabow, Garrett & Dunner, filed its petition in the Supreme Court, challenging the new test.

Petition for Certiorari

Lawyers for Bilski and Warsaw raised two challenges to the validity of the machine-or-transformation test.   First, they contended that the test contradicted Supreme Court precedents mandating broad interpretation of the patent grant.  Second, they contended that the test ran afoul of action by Congress specifically allowing patents for methods of doing or conducting business.

The petition’s argument for review began with three questions: “What can be patented? Are patents only for manufacturing processes that are tied to a particular machine or produce some physical transformation?  Or do patents also embrace modern business processes that do not depend on a particular machine or device?”

The Patent Act, it contended, is broad in scope, using the word “any” to introduce a concept of sweeping access to patent protection.   “There is no exclusion for business methods or any other field of invention.”  Only three categories are excluded: laws of nature and natural phenomena, neither of which, it said, can be invented at all, and abstract ideas, which are not useful until they become part of something practical.

The petition interpreted two prior Supreme Court precedents as actually declining to embrace the machine-or-transformation test.   Moreover, it said that even the Federal Circuit had not done so previously, using a test of whether an invention produced a “useful, concrete and tangible result.”   Using that approach, the filing said, the Circuit Court had “made patent protection available to such diverse fields as internet commerce, information technology, and business methods.”

Thus, it contended, the Circuit Court “abruptly changed course” in making the new test the sole one for patentability.  “The Federal Circuit,” it asserted, “has essentially confined all process patents to manufacturing methods, using a test that may have been appropriate during the Industrial Age but no longer fits our modern information-based economy.”

The then-new team at the U.S. Solicitor General’s office twice got extensions of time to respond to Bilski and Warsaw.   Then, in a filing on May 1, representing the Patent Office, the government’s lawyers urged the Court to deny review.  The response defended the test, arguing that it actually was not new at all, but rather had been “drawn directly” from the Supreme Court’s 1981 decision interpreting patentability.   Embracing that test, it added, the Circuit Court then properly cast aside its own precedents in order to conform to the Supreme Court’s approach.

“The decision below represents an unremarkable application of that machine-or-transformation test,” the Solicitor General asserted.  The Bilski-Warsaw invention, the brief said, has no connection to “a particular device or article,” and does nothing to transform any physical object or substance.  “The Court,” it went on, “has never suggested that a method of this kind, relating to purely human activity, may properly be the subject of a patent.”  The invention is nothing more than a process “that is directed to the ‘abstract idea’ itself,” it commented.

What’s more, the Solicitor General asserted, the Federal Circuit “expressly left room to accommodate emerging technologies” and did not rule on the application of its test “to computer software, data-manipulation techniques, or other such technologies not involved” in the hedge claim behind the Bilski-Warsaw invention.   And that invention “involves none of the frontier technologies” that the inventors’ lawyers had argued would be stifled by the test.  There is no threat here, the brief added, to process claims that would describe a programmed computer’s operation, biotechnology advances, or chemical inventions.

The Court granted review on June 1.

Merits Briefs

Continuing to press the argument for an expansive reading of the word “process” in the Patent Act, the Bilski-Warsaw brief on the merits marshaled quotations from Supreme Court opinions back to the mid-to-late 19th Century, emphasizing two words in particular — “art” and “useful” — as the defining nature of a patentable process.  In fact, the word “art” is traced back to one of the earliest Patent Acts, in 1793.

The brief, although attempting to persuade the Court that the modern Information Age needs an expanded concept of process, turned back to history for one of its most vivid examples of an “information-age process.”  That was Alexander Graham Bell’s invention of the telephone, patented in 1876.  In The Telephone Cases in 1887, the brief recalled, the Court validated Bell’s patent, and reinforced the view that “the Supreme Court’s broad framework for patent eligibility is flexible enough to accommodate innovations of every age.”

In more recent times, the brief asserted, “this Court has repeatedly cautioned against adopting special, rigid rules for patent cases where this Court’s precedents follow a broader, more flexible framework.”  The Federal Circuit has had to be corrected before, the brief noted, when it attempted “to impose rigid rules for patents despite a flexible framework set forth by this Court.”

The brief goes to greater lengths than did the opening petition in marshaling recent enactments by Congress, supposedly demonstrating that the lawmakers had shown a special regard for “business method patents.”  And, since the Bilski ruling by the Federal Circuit, the document said, the Patent Office and some courts have used the new test “to reject or invalidate business method claims in dozens of cases.”  One judge who did so, it said, commented that “Bilski’s holding suggests a perilous future for most business method patents.”

From a former position of neutrality on technological advances, the brief argued, the Federal Circuit has adopted a position of hostility to “innovation in the knowledge economy.”  That, it added, is an abrupt policy shift of the kind that only Congress, not a court, should make.

The Patent Office’s merits brief has one frequently restated theme: patent protection simply is not available for “methods of organizing human activity.”  By this, it said near the beginning, it meant “methods by which people conduct economic, social, or legal tasks, such as entering into contracts, playing poker, or choosing a jury.”   To qualify for a patent, the brief summed up, a process must be “technological and industrial” in nature, “tethered to technology.”

The Bilski-Warsaw method of hedging commodity price risks, the Solicitor General argued, “relates solely to human conduct, untethered to any technology — any machine or transformation of matter.”   Thus, the government presented an unqualified embrace of the Federal Circuit’s test.

Indeed, the brief went on to find the direct antecedents of that approach in the first patent laws, in 1790 and 1793.  From that period to the present, it added, it has been understood that patent protection was to be available only in “the fields or technology and industry, as opposed to the fields of general knowledge and economic endeavor.”

That, it asserted, is what led ultimately to the Court’s 1981 decision in Diamond v. Diehr, spelling out that “the distinguishing feature of a technological process is that it concerns a particular machine or apparatus or effects a transformation of matter to a different state or thing. ”

Far from conceding, even impliedly, that the government was arguing for a narrow scope of patent protection for processes, the merits brief returned to Thomas Jefferson and the concept that “ingenuity should receive a liberal encouragement,” through what the government said are “broad and flexible patent laws.”

But, it stressed, ” ‘broad’ does not mean unbounded.”  There are “social costs” in granting a monopoly as an incentive for research and innovation, including the exclusion of “would-be competitors who could produce a patented invention more efficiently, thereby inhibiting post-invention competition and innovation.”

The Bilski-Warsaw patent itself, according to the government, poses some of this risk: “It would preempt the abstract idea of hedging consumption risk.” Quoting a 1948 Court ruling, the brief asserted that “laws of thermodynamics, mathematical formulas, abstract ideas, and other phenomena of nature are part of the storehouse of knowledge of all men…free to all men and reserved exclusively to none.”

The Solicitor General offered the Court a two-step inquiry on the eligibility of an invented process for a patent.  The first step is the machine-0r-transformation test.  The second is a determination of whether the process would have the practical effect of wholly preempting public access to “the basic tools of scientific and technological work.”

Responding to the inventors’ assertion that the Federal Circuit’s test would impair the “knowledge economy” — a point echoed in a number of amici briefs voicing concern over the Federal Circuit’s test, the Solicitor General argued that the test is not a threat to computer software that handles data and information in novel ways.  The risk-hedging invention here, it noted, is not software.  But, in any event, it added, the Federal Circuit’s test “contemplates that many forms of ’software’ inventions are patent-eligible.”

And, the brief sought to reassure the Court that the Federal Circuit remained open to modifying the test if it should present a threat to future developments in technology.  “At present, however, no such ‘departure’ is necessary,” it concluded.

The government brief also interpreted Congress’s recent actions seeming to embrace business method patents as dealing only with defenses to infringement actions, and definitely not an endorsement of patenting “business methods directed solely to human activity.”

Amici Briefs

If nothing else about the case leads the Court to see it as highly important, the flow of amici filings surely should.  In a volume that is usually reached only in the most highly visible, most deeply controversial cases, the friend-of-court briefs are stacked high.  There are 68 overall, but the most remarkable fact is that nearly half of them — 26 — do not support either the inventors or the Patent Office.  Briefs “in support of neither party” seldom are filed in any significant number.  The 26 that seek to stand neutral between the contestants manifest a basic worry over the present state of patent law, and especially as it applies to the Digital Age.

In addition to those briefs, there are four others that urge that the Federal Circuit be upheld, but on grounds different from those argued by either party directly in the case.  For the contestants themselves, Bilski and Warsaw attract 18 amici filings, while the Patent Office draws 20.

Perhaps there is no such thing as a truly representative argument from that long list of those supporting neither party, but the flavor of many of those filings is this opening statement in a brief by TELES AG, “a German high-technology ccompany”: “It is clear that the future economic strength of the United States will rely greatly on cutting-edge technologies — such as artificial intelligence, genetic programming, and human-machine communicatrions — that in the broadest sense are not ‘physical’ or ‘tangible.’  But the ‘machine-or-transformation test’ set forth by the Federal Circuit gives cause for serious concern that patentability will be statically limited to ‘physical’ or ‘tangible’ implementations of technical developments, largely excluding innovations in such cutting-edge technologies.”

Many of those briefs — indeed, many briefs from all sides of the amici briefing contest — offer their own formulations of a proper patentability test for process inventions.  A group of 20 law and business professors offered one of the simplest: “Where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.”

To a noteworthy extent, many of the briefs on all sides (including some in support of the inventors’ challenge) came prepared to say that, whatever the test, the risk-hedging invention of Bilski and Warsaw does not qualify.   For example, the Boston Patent Law Association, while complaining energetically about the Federal Circuit’s test, suggested that the Justices may want to rule directly on the Bilski-Warsaw claims, and reject them as “lacking adequate limitation to a specific application,” and thus advancing only an abstraction.

Predictably, the Bilski-Warsaw invention comes in for especially aggressive challenge by the amici supporting the Patent Office.   Many of these groups and individuals are deeply upset by a recent outpouring of patents on business methods and software, contending that this is locking up ideas that others should be free to exploit.  One brief on this side, from entities ranging from Google to the Bank of America, argued that this trend is allowing the patenting of abstract ideas or methods “not to make productive use of them, but to extract licensing fees from businesses that apply and improve those ideas and methods in real-world products and services.”  Belitting the work of Bilski and Warsaw, that brief said their invention “claims nothing more than the idea of hedging against the weather.”

Analysis

Unless the Justices are now persuaded by an argument that did not keep them from agreeing to hear this case in the first place — that is, that the Federal Circuit has done nothing more than faithfully adhere to Supreme Court precedent, a daunting task awaits.   It may involve no less than trying on its own to invent something: a new formulation of the concept, for patent purposes, of what is “useful.”

The briefs put before the Court not only a dizzying array of ideas on that very point, but throw in a high degree of alarm about where the patent system as a whole may be heading in a world increasingly dominated by those most elemental of electronic expressions, ones and zeroes — the language of digital commerce and conversation.  Although the Patent Office and many of its supporters suggest that the Court’s own record on patentability is a quite consistent pattern since 1790, and that it has already adapted to the “knowledge economy,” there clearly is much disagreement with that.

There is a deep chasm between those who think too much innovation is being locked into patent monopolies, and those who think too little is getting the protection of exclusive legal rights, and yet the Bilski case seems to ask the Court to reconcile the two.

Even if the Court were to see the case as being limited solely to “business method” inventions, that is a concept that now has so many variables, present and future, that defining it does not appear to be any easier than saying — in legal terms — what the word “useful” means in the Patent Act.

Perhaps the only way that the Court’s work could be simplified is to examine the finite details of the Bilski-Warsaw invention and conclude that, whatever the test, this idea does not pass muster.  That would end the case, but clearly not the controversy over patentability.  On that, the Court is being pressed hard to provide a definitive resolution.

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.

There were several exchanges about basic fairness, but nothing like a consensus on that emerged.  Shady Grove’s counsel contended that the right to aggregate claims in a class action is not only fair but also an efficient way to resolve similar complaints that multiple plaintiffs may share, and Allstate Insurance’s counsel contended that, if a state has created a legal claim, it is only fair that it be allowed to define its terms. 

New York State, fearing that class-action lawsuits seeking monetary penalties for misconduct defined by state laws would unduly magnify those penalties, simply barred lawsuits combining such claims, forcing individuals to sue for them one at a time.

In the Shady Grove case, Allstate Insurance persuaded the Second Circuit Court that New York’s class-action ban must be enforced even when claims based on those state laws are pursued in federal court.  Reviewing the Circuit Court ruling, the Justices are considering whether that contradicts the federal court rule — Rule 23 — that allows collective lawsuits.

It was no surprise that much of Monday’s argument focused — as did the briefs — on whether New York’s class-action curb is procedural in nature (Shady Grove’s view), and thus is trumped by federal Rule 23 when the claim is brought in federal court, or whether it is substantive in nature (Allstate’s view), and thus trumps any federal interest asserted if the litigation goes to federal court.  (The procedural vs. substantive dichotomy traces, of course, to the Supreme Court’s interpretation of its 1938 ruling in Erie Railroad v. Tompkins.)

Justice Ruth Bader Ginsburg, who started the questioning (and quickly showed sympathy for Allstate’s labeling of the New York ban as substantive), likened the restriction to a control on remedies, such as a ceiling on the amount of damages that could be recovered under a state law.

She told Shady Grove’s lawyer, Scott L. Nelson, “If New York wants to say this kind of claim can be brought only as an individual action, not as a class action, why shouldn’t the federal court say that’s perfectly fine; this class of cases can’t be brought as a class action; we respect the state’s position on that.”  In effect, she said, if Nelson’s view prevailed, a federal court, having a case before it only because the parties were from different states, would be creating “a claim [under state law] that the state never created.”

Championing states’ rights, Ginsburg said the Court “has been sensitive to not overriding state limitations.”  Nelson’s sparring with her took up much of his time at the podium.  But he encountered the slippery-slope argument that Allstate wanted the Court to think about when Chief Justice John G. Roberts, Jr., pressed Nelson to confront the potential impact of Shady Grove’s argument on a list of state laws (in the appendix to Allstate’s merits brief) restricting class-action remedies.

Nelson tried, without notable success, to argue that the state laws listed were different, although he did concede that the validity of some of them might be in question under his argument.  That led Ginsburg into a series of questions implying that Nelson was pushing his theory too far.  Justice Sonia Sotomayor chimed in, intepreting Nelson’s responses as indicating that “there is absoluely nothing, no law that the state could pass that would not conflict with Rule 23 — with respect to class actions.”  Shady Grove’s lawyer then backtracked a bit, and then returned to his central theme that the specific  New York law at issue was clearly procedural.

Responding to a question from Justice Antonin Scalia, Nelson suggested that laws like New York’s might not only restrict class actions on claims arising under New York law, but under other states’ laws, as well — another slippery slope.  The ban, he argued, “clearly is applicable to rights of action brougth under any source of law.”   At no point, however, was he able to deter Ginsburg’s aggressive questioning.

When Christopher Landau, Allstate’s lawyer, rose, he began to exploit the points that Justice Ginsburg had made.  The case, he said,  “falls within the heartland of Erie” because it was an attempt to allow a recovery under state law in federal court that could not be obtained in state court,

He had barely begun, however, when a deeply skeptical Justice Sotomayor pressed Nelson’s point about the potentially wide sweep of restrictions like New York’s.  “Under your theory,” she told Landau, “any state could pass a law that says no cause of action under state law can be brought as a class action ever.  That would be your theory because it’s substantive” under the Erie dichotomy.  She suggested that would seriously undercut federal Rule 23.

Landau, however, insisted that Rule 23 only provided criteria for when a class could be recognized in federal court, and did not deal at all with whether a class could be recognized in the first place, when a state law at issue categorically barred such a lawsuit.  But he did not disagree with the implication of Sotomayor’s broad question, saying that “if the state is talking about its own state law cause of action, the state is the master.”

After a few exchanges along those lines, Sotomayor said Landau had answered her question, so “under your view, a state could say, no class actions…and a federal court, sitting in diversity, could never aggregate those claims, those state law claims?” Allstate’s lawer said yes, for state law claims. 

Picking up on the implicatons, the Chief Justice expressed implied concern about “an across-the-board” state ban on class actions when state law claims were at issue.   And Landau soon was confronted with further skepticism, this time from Justice Stephen G. Breyer.   If a state tries to curb class actions because it considers them to “lead to unjust, inefficient settlement of disputes,” Breyer asked, why isn’t that second-guessing the federal rule’s recognition of class litigation as an efficient way to achieve justice.

Landau and Breyer sparred a bit on the point, with the Justice ultimately suggesting that what New York had done was no different from a state’s attempt to dictate the timing of when appeals could be pursued in federal court — an intrusion, Breyer said, that “wouldn’t last for two seconds.”

Allstate’s lawyer quickly turned back to the slippery slope issue that works in his favor — the potential threat of Shady Grove’s argument to the state laws that Landau listed in his appendix to the brief.  Shady Grove, he said, clearly did not have “a clear answer” to the Chief Justice’s concerns on that point.

But that did not deter Justice John Paul Stevens from picking up on the answers Landau had given to Sotomayor, which she had interpreted as indicating a potential for a broad state assault on Rule 23.  “Is it your position,” Stevens asked, “that if we follow your view in this case” that New York could pass a law “saying no cause of action based on New York law may be maintained as a class action.”

“Yes, Your Honor,” Landau replied.  And he went on to concede that New York’s authority to bar class actions would apply not only to state statutes, but to New York common-law claims, too.  The Chief Justice interpreted Landau’s responses as indicating that New York could pass an across-the-board law simply because it did not like class actions as a general matter.

When Justice Scalia moved in to explore the breadth of Landau’s arguments, the Allstate lawyer eased off a bit, saying that New York could not apply its ban to a cause of action based on out-of-state law.

Justice Ginsburg moved in to provide an assist, seeking to counter the questions by Justices Sotomayor and Stevens by noting that New York did not, in fact, have an across-the-board law attacking class action litigation as a general policy approach.  “It has picked out a particular kind of action,” she noted.  “Precisely, Your Honor,” Landau said, accepting the favor.  He then returned to his central theme that what New York had done was, in fact, the adoption of a substantive policy.

Justice Stevens, though, had become aroused by the sweep of Landau’s argument, at least as characterized by Justice Sotomayor, and left no doubt that he was troubled.  “It seems to me,” Stevens said, “that your position basically is that New York can decide what kinds of cases shall be brought as class actions. Period.”  If New York did that for “substantive reasons,” Landau said, it could, for “New York causes of action.”   The Chief Justice again expressed some sensitivity about the responses.

Again, though, Justice Ginsburg came back to aid Landau, suggesting that states should have the power to keep “clutter” out of their courts.

In the end, Landau tried to pull the Court back to the slippery slope of invalidating a host of other states’ laws.   He said that his adversary in essence had been arguing that “Rule 23 requires that every cause of action that comes before it [a federal court] be eligible for class certificaetion.  That would knock out each and every one of the statutes” in the appendix to his brief.  Nelson, he said, had been unsuccessful in trying to minimize the threat to those other laws.

Nelson’s few minutes of rebuttal were taken up with sparring anew with Justice Gisnburg.

(The Court is expected to decide the case in late winter.)

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.

The new Sec. 1041 provides that the Defense Secretary “may not use any of the amounts authorized” in the new law ”"or otherwise available to the Department of Defense to release into the United States, its territories, or possessions, any individual…who is not a citizen of the United States, and is in the custody or under the effective control of the Department of Defense, or otherwise under detention” at Guantanamo.

That is the funding provision that is now binding law, with the President’s approval, and it is the one that will be in effect when the Court hears the Kiyemba case, either in February or, more likely, in March.  The provisions seek to control detainee releases for the period from Oct. 1 of this year to Dec. 31, 2010.   The flat prohibition is only on releases into the U.S.  Other parts of Sec. 1041 allow the Pentagon to bring detainees into the U.S. — perhaps for criminal prosecution for war crimes — provided that is done as part of a “comprehensive plan” affecting every detainee now at Guantanamo.

Lawyers for the detainees in the Kiyemba case have already signaled that they will challenge any such restriction on ultimate release from detention as a violation of the Constitution’s clause that sharply restricts Congress’s power to suspend habeas corpus rights.  Detainees at the U.S. prison in Cuba have such rights, under the Constitution, as a result of the Supreme Court’s 2008 decision in Boumediene v. Bush.  The Kiyemba case is a sequel to Boumediene, testing what remedies are available — in real-world terms — for Guantanamo prisoners who successfully gain release orders in court.

Kiyemba involves 13 Chinese Muslim prisoners who, a year ago, won an order from a federal judge to be released into the U.S., to live in a Muslim (Uighur) community in northern Virginia.  The judge ruled that this was the only alternative, since they could not be returned to their homeland, China, because of fears of persecution or torture.  The government no longer contends that any of the 13 are dangerous enemies.  The judge’s release order, however, was overturned by the D.C. Circuit Court, ruling that entry into the U.S. is not within the power of the courts to order, but rather is controlled solely by the President and Congress.  That is the ruling the pending petition challenges.

The Obama Administration unsuccessfully urged the Supreme Court not to hear their case.  By the time written briefs are due in the case, the Administration is expected to have completed a broad new policy for Guantanamo detainees.  Attorney General Eric Holder, Jr., has said that the government will decide by mid-November on its plans for each of the more than 200 detainees still at Guantanamo.  It is unclear at this point how those determinations will square with the new funding limits imposed by Congress.

All of this activity, however, is expected to be a central point of discussion in the briefing, and in the oral argument to follow.

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.

Kagan has until Monday, Nov. 2, to seek en banc rehearing, if she concludes that that option is open to the federal government.  If such reconsideration does not occur, for whatever reason, the earliest deadline the Solicitor General would face for a Supreme Court petition would be Jan. 14.  Filing then, or later, would diminish significantly the chances that the Court could hear and decide the case by next summer, unless it chose to speed it up considerably.

Election law experts are debating these days whether a Supreme Court appeal is likely, given that the FEC was unwilling to mount an effort to keep its own 527 regulations.  The case does, however, involve not only a momentous constitutional issue — just what does the First Amendment protect in political funding by groups not tied to political parties — but also a significant question of what the FEC’s powers are over 527 non-profits.

Two of the judges on the Circuit Court found the First Amendment violated by all five of the 527 rules at issue, and also ruled that three of those regulations were beyond FEC’s authority to adopt.  The third judge, refusing to address the constitutional issue, found all five beyond FEC’s powers as conferred by Congress.  But even that third member of the panel wrote at length to question the underlying constitutional premises of the Supreme Court’s most recent campaign finance rulings, and even hinted that the Court perhaps should reconsider.

Kagan and her client, the FEC, already has pending before the Supreme Court a basic constitutional dispute over campaign finance — whether the Court should overrule two of its precedents as they operate to restrict campaign season ads or documentaries by non-profit advocacy groups (the so-called “Hillary the Movie” case, Citizens United v. FEC, 08-205, argued Sept. 9 and awaiting a ruling).  But even if the Court does not overrule those precedents in the Citizens United case, the EMILY’s List constitutional ruling, if left intact, would free 527s to go on spending sprees in future federal elections.

The Solicitor General argued in the Citizens United case in favor of federal regulation of election season films by advocacy organizations.  But whether she now feels that the FEC also needs the authority to curb spending by 527s will not be clear until she makes up her mind whether to contest EMILY’s List.

One facet of that case that could give Kagan pause is the suggestion, by Circuit Judge Brown, that the Supreme Court’s “increasingly anomalous campaign finance jurisprudence” has worked to “impoverish” the opportunity of non-government entities to contest the government’s policy agenda.   Gloomily, Brown argued that the Court may have “doom[ed] any argument for protection of core political speech.”  And then she added: “Someday the Supreme Court may be persuaded to reconsider this approach. But that cannot be our task [at the Circuit Court level].”

Strong rhetoric like that could lead the Supreme Court’s current majority, which seems quite skeptical of strong federal regulation of campaign “speech” in the form of campaign spending, to use the EMILY’s List case to dismantle some of the basic constitutional ground rules the Court has laid down in this field.  After all, the Citizens United case started out as a much more modest case, until the Supreme Court, in mid-passage, opted to turn it into a sweeping constitutional reexamination.

The Circuit Court majority — Judge Brett M. Kavanaugh, joined by Judge Karen LeCraft Henderson — concluded that the Supreme Court’s broadest endorsement yet of campaign finance limits (the 2003 decision in McConnell v. FEC) did not apply at all to 527 corporations, but only to political parties organized as such.  Judge Brown suggested that that conclusion was “implausible” under McConnell, but her own critique of McConnell, and of some of the Court’s prior rulings, could well strike at least some Justices as a reason to reopen all of McConnell, not just the narrow part of it that is now at issue in Citizens United.

Those may well be some of the thoughts figuring in the behind-the-scenes discussions now going on at the Solicitor General’s office, as Nov. 2 and other deadlines approach.

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).

Kiyemba is a case that at least four Justices (and probably more) wanted to hear, despite strong pleas from the government’s top lawyer, Solicitor General Elena Kagan.  Urging denial of review of the plea of Chinese Muslim (Uighur) detainees to end their captivity, Kagan told the Court in May: “Activity in the political Branches on the disposition of detainees at Guantanamo Bay generally and [the Uighurs] particularly, including sensitive diplomatic undertakings, provides all the more reason for the Court to deny review.”

The Court’s choice to pursue the case anyway could not have been welcome news in the political Branches: the Court has entered the detention discussion repeatedly since 2004, and the end result has most often been a significant loss for what the other parts of the government wanted to do.  The coming decision in Kiyemba could well turn on a constitutional question, just as did the Court’s ruling in 2008 that brought the most sweeping defeat yet for government detention policy – Boumediene v. Bush.  Kiyemba, in fact, is a sequel to Boumediene, testing what detainees might expect if they successfully challenged their imprisonment under Boumediene.

It appears that the case will not be heard until March.  The Court’s February-March sitting, the earliest for which this case might be ready, starts February 22 and ends March 3, and there already are a number of cases that, technically, are ahead of Kiyemba. Thus, it might not be scheduled until the session starting March 22.  That leaves months for the other branches of government to ponder what they can do in the interim — even if the constitutionality of those options looms as an issue in the background.

The President has vowed to close the detention facility at Guantanamo no later than next January 22, but that timetable has seemed lately to be slipping. Attorney General Eric Holder, Jr., has said the government may make up its mind about detention policy by the middle of November.  Congress, in the meantime, has been busy, enacting various restrictions on the use of funds to carry out any policy involving Guantanamo prisoners — restrictions that may significantly limit the President’s options.  One curb that Congress has insisted upon most energetically is a ban on transferring any detainee to live in the U.S. as a free individual — precisely what the Chinese Muslims want, because they fear persecution if returned to their native China.

Lawyers for those involved in the Kiyemba case — now down to a group of 13 from the original 17 (four have gained their freedom and are now living in Bermuda) — have told the Court that the legislative efforts to restrict transfers may, in fact, be an unconstitutional curb on the habeas right (a “suspension of the writ”) that the Court recognized in Boumediene.  That, surely, will be an issue explored in the merits briefs in Kiyemba.

Even before the briefing schedule starts to unfold, one question arises: will the government move the case beyond the Court’s reach by finding a place where the 13 Uighurs can be re-settled, thus making “moot” their plea for court-ordered release?  (The Bush Administration and then the Obama Administration found ways to end major Supreme Court test cases on presidential detention authority of individuals captured inside the U.S. by charging them with crimes and moving them into the regular civilian courts, out of indefinite detention in military custody.)  Efforts have been made to get another country to accept the Uighurs, but those endeavors seem presently to be stalled.

Even assuming that such a transfer can be worked out between now and final action by the Court in their case, the fundamental question of federal judges’ authority to provide an actual remedy in constitutional habeas cases involving wartime detainees will continue to arise.  A significant number of cases on that very issue are pending in the lower federal courts, and many definitely will be making their way to the Supreme Court.  The D.C. Circuit Court has started putting some of those cases on hold, pending the outcome in the Supreme Court of Kiyemba, but that could be only a temporary delay.

At its core, then, the three-way government contemplation in coming months of the law of detention is not so much a polite minuet as it is a serious rivalry between energetic branches determined to protect their own prerogatives.  If the rivalry stays focused on constitutional interpretation, though, the Justices — with the “power and duty to say what the law is” — may well have the last word.

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?

The Court has the option, in any one of the three cases it will review, to act on Justice Scalia’s suggestion and decide whether the law is unconstitutional, as too vague or for some other failing.  Many lower court judges have devised ways of limiting the sweep of Section 1346, in order to save it constitutionally. 

But the legitimacy of that approach is now questioned, even — or, perhaps, especially — by judges themselves.  Circuit Judge Dennis Jacobs, for example, said six years ago that the law “effectively imposes on courts a role they cannot perform. When courts undertake to engage in legislative drafting, the process takes decades and the work is performed by unelected officials without the requisite skills and or expertise; and as the statutory meaning is invented and accreted, prosecutors are unconstrained and people go to jail for inchoate offenses.” Another Circuit Judge, E. Grady Jolly, has written that the courts in interpreting Section 1346 are attempting to perform “a role somewhere between a philosopher king and a legislator” to create definitions of what is meant by a denial of “honest services.”

The Court, of course, can decide any one of the three granted cases by doing exactly what lower courts have done: read the statute in a way so that it, in practice, covers less than what its actual language might support.  But if that is the tack the Court takes, it still could be a hard year for this law, and for prosecutors who have been in the habit of deploying the statute in wide-ranging ways.

If convicted individuals win each of the three pending cases, and that seems like a fair prospect, here is what Section 1346 would no longer cover:

** A corporate executive’s use of a fraudulent scheme to increase his own compensation — if there is no proof that the mischief caused “economic harm” to the corporation.  (That is what Canadian newspaper mogul Conrad Black is arguing for in his case, Black v. U.S., 08-896, now scheduled for argument on Dec. 8.)

** A state legislature’s failure to disclose that, while supporting tax legislation favorable to a company, he was seeking future legal work from that company — if there is no proof that state law requires a disclosure of such conflicts of interest.  (That is what former Alaska legislator Bruce Weyhrauch is arguing for in his case, Weyhrauch v. U.S., 08-1196, scheduled for argument right after the Black case on Dec. 8.)

** A corporate executive’s efforts to deceive stockholders, accountants, federal regulators and the investing public about the company’s financial condition and performance — if there is no proof that the executive obtained some private gain. (That is what former Enron Corp. CEO Jeffrey K. Skilling is arguing for in his case, Skilling v. U.S., 08-1394, just granted on Tuesday and likely to be heard in either February or March.)

The Skilling case goes a giant step further than the other: if the law is not limited as he contends it should be, must the law be struck down as unconstitutionally vague?  (And it adds another issue: whether strongly negative publicity in Houston — Enron’s home — made it impossible for him to get an impartial jury.  If Skilling should win on that point, perhaps the Court would not need to pass upon the scope of the “honest services” law in his case, though the “private gain” issue is another one that has produced directly conflicting decisions by lower courts and thus probably needs to be clarified.)

By assigning itself review of an array of issues on what Section 1346 does cover, the Court has demonstrated in a bold way the open-ended nature of the law, and thus has put on display the clear potential for free-wheeling application of the law by prosecutors if the law is not reined in.  One of the law’s most aggressive critics, the National Association of Criminal Defense Lawyers, argued to the Court in an amicus filing in the Skilling case that “the time has come to resolve the confusion that engulfs the honest services statute.”

The most fundamental issue, that group said, is “whether courts have the power to engraft limiting principles — none of which has any strong textual basis — on the vague language of Sec. 1346.  If federal judges lack that power, then the Court must decide whether the honest services statute, shorn of judge-created limiting principles, is void for vagueness….The effort by courts to infuse meaning into Sec. 1346 collides…with the principle that there is no federal common law of crimes…Federal crimes are defined by statute rather than by common law.”

One cautionary note on the potential for a sweeping constitutional ruling on Section 1346’s validity: the fact that the Court has not consolidated the three cases, and is treating each as a stand-alone case, may imply that it will confine its review solely to the specific interpretation in each case.  Still, any one could provide the vehicle, if the Court wishes for one, to decide much more broadly.

It is clear, though, that the outcome, however narrow or targeted, is likely to include a significant rebuke for Congress’s draftsmanship in putting an “honest services” clause into the federal laws on mail and wire fraud.  When the Court ruled in McNally v. U.S. in 1987 that the mail fraud law as it existed at that time did not include any civic right to “honest services,” it said that if Congress wanted that to be a part of the law, “it must speak more clearly than it has.”

But, a year later, Congress amended fraud law simply to say that “the term ’scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”  As Justice Scalia remarked last February, “that terse amendment” hardly qualified as speaking “more clearly.”  After 20 years, that purportedly clarifying language is going to get a full airing by the Supreme Court.

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.

At the center of the dispute is a deal that was intended to end a complaint by free-lance authors that articles they wrote for newspapers and periodicals were copied into electronic databases without their consent — and without extra payment.  But lower federal courts found they had no jurisdiction to review the $18 million pact, because some of the authors involved never registered their copyrighted works with the Copyright Office, and thus their claims may have been beyond the court’s power to assess even as part of a settlement.  The case in the Court, filed by publishers and electronic archive firms, turns on whether a federal law requiring a copyright owner to register the work before being allowed into court actually is binding — that is, whether it is a limit on the federal court’s actual jurisdiction to decide.

Much of Wednesday’s argument involved a focused analysis on how to read a statute, without any discussion of the soundness or fairness of the settlement deal itself.  The Justices seemed to waver back and forth between the specific language of the Copyright Act provision, and the underlying public policy goals that Congress may have in mind in making registration a prior condition for suing for infringement.

On either side of that discussion, however, most of the Justices seemed skeptical that a strong enough case had been made to overturn the Second Circuit ruling that it lacked authority in the case.  A strong performance by a law professor specially chosen by the Court to support the Second Circuit’s ruling fueled that skepticism.  A straddling position by the U.S. Solicitor General’s office may have added to that sentiment, too.

Justice Breyer, repeatedly making a pragmatic case for allowing the lower courts to go ahead and decide whether to approve the deal, suggested that Congress could not have intended to set up a system in which copyright claims could not be resolved by settlement because of who was or was not allowed in court.  Why not, he commented, let the courts look at all the factors in a dispute to decide whether settling it was fair to all concerned.  Fairness, he said, was the crucial issue when a lawsuit had been settled.

While Justice John Paul Stevens joined in suggesting that the focus in such a situation should be on fairness, rather than on the issue of jurisdiction or its absence, his and Breyer’s comments and questions were the only indications that the Court might want to decide the case without settling the question of court authority.

Charles S. Sims, a New York lawyer representing the publishers, insisted that his clients were properly in court because many of the free-lance authors had registered their copyrighted works, so they clearly had a right to sue, and thus a right to reach a settlement and get it reviewed in court, even if it took in authors with unregistered works.

Sims conceded, though, that lawyers on his side “were guilty of loose language” in lower courts in using the limited power of the courts — that is, the very issue of authority now in issue — to help justify a part of the settlement that treated the authors with unregistered copyrights less favorably.  It is “not fair,” Sims told Justice Ruth Bader Ginsburg, to say that they had conceded that there was a jurisdictional bar to reviewing the settlement.

Chief Justice John G. Roberts, Jr., was Sims’ most aggressive interrogator, suggesting that the Copyright Act language at issue was closely parallel to that written into other laws that the Supreme Court had determined set limits on jurisdiction, not just on courts’ discretion.

Ginger Anders, an assistant to the U.S. Solicitor General, arguing for the federal government view that the Second Circuit was wrong in viewing the language as jurisdictional in scope, suggested that the register-before-suing language was mandatory and generally could not be waived.  But, Anders suggested, perhaps it was appropriate to allow it to be waived in this particular case.  There was going to be a settlement, she said, so the federal judge was not going to have to decide the merits of the claim of infringement.

Because neither side in the free-lancers’ copyright case was willing to defend the Second Circuit ruling putting the settlement outside of court review, the Court had named Ohio State law professor Deborah Jones Merritt to offer a defense.  She offered a full-scale defense, suggesting that the restriction at issue was jurisdictional but, even if it was not, there was no reason for the Justices to overturn the Second Circuit.

She sought to undercut the arguments of the publishers and database companies by criticizing them for failing to try to locate all of the free-lance authors, to get their permission for electronic re-publication of their works and thus avert the legal dispute that ensued.  University libraries, she said, often have to obtain many more permissions for re-publication than any electronic database in the case ever had to do.  She also said it was a “red herring” for the databases to contend that their electronic archives would be decimated if they could not have the settlement of all of the free-lancers’ infringement claims.  In any event, she said, more advanced technology had overtaken their argument that copyrighted works would be put beyond the public’s access if the settlement did not go forward.

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.

The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religious commemoration in public places.  Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross.  The federal government took the case to the Supreme Court to protest those rulings.

Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review.  And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach.  Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case and so had now missed its chance.

The Solicitor General, and a California civil liberties lawyer on the other side, Peter J. Eliasberg, found themselves compelled to pore over the details of Congress’s response to the lower court rulings, rather than arguing broad constitutional principles.  The effect was to significantly shrink even the remaining issue in the case.

Kagan insisted that those details showed that Congress only wanted to keep a “war memorial” on the site, which only incidentally was a religious symbol, so there was no basis for blocking the land transfer; it cured any constitutional problem.  Eliasberg countered that those details showed that Congress had singled out a single religious faith for favoritism, gave that cross a monumental status that few other iconic structures get, did not actually forfeit its interest in keeping the Mojave cross standing on Sunrise Rock, and thus remained in a continuing constitutional violation.

While the Justices showed a lively interest in those details, that, too, simply reinforced the impression that the case no longer ranked on the grand scale of potential precedents of sweeping impact.  Large questions of separating church and state tended to get lost in close questioning about a “reversionary interest” the government has in Sunrise Rock, and about what kinds of signs the National Park Service might put up on or near this cross to make it seem like the display was conveying someone else’s message, rather than the government’s.

Justice Scalia spent considerable effort in trying to keep the argument on the constitutionality of the cross’s display.  He said the government had no obligation, just because it put up a monument to one faith, to have other monuments on the same site to other faiths.  In fact, he said, the Mojave cross was a commemoration of the service of soldiers of all faiths, including Jews and Muslims.  Scalia said it was “outrageous” to suggest otherwise.

Justice Samuel A. Alito, Jr., suggested that the Court should take the government at its word, that Congress had washed its hands of the cross and had remedied whatever Establishment Clause problem its presence on public land had caused.  Echoing the Solicitor General’s core argument, Alito said Congress’s only interest was in maintaining a war memorial.

Beyond those two, however, the remaining Justices who took part (Justice Clarence Thomas remained silent) raised questions and made comments in what sounded much like a seminar on federal court jurisdiction and the meaning and scope of court injunctions.  In the few moments when the members of the Court discussed the merits of the case, they simply bypassed the right-to-sue issue and the validity of this particular display, choosing instead to analyze the legal effect of the steps Congress took to protect the display from its challengers.

——————–

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.

Background

The Mojave National Preserve is a massive tract of land — about 1.6 million acres, or 2,500 square miles — in California’s San Bernardino County.  About ninety percent of it is federally owned.  On top of an outcropping known as “Sunrise Rock,” in a remote site on federal land, there is a Christian cross.  It can be seen from about 100 yards away as one motors along Cima Road.  It is modest in size, no more than eight feet tall.  It, like several earlier versions that preceded it, serves as a memorial to individuals who have died in military service.  The original cross was put up in 1934 by the Veterans of Foreign Wars.

That little monument is now the centerpiece in the latest controversy to reach the Supreme Court on the constitutionality of erecting, or maintaining, a distinctly religious symbol on government land or in public parks.  It is a subject that, over the years, has produced an uncertain set of constitutional standards that make it quite difficult to suggest, in advance, which symbols will pass, and which will be forbidden.  This latest controversy also raises the fundamental question of who may come to court to contest the legality of such monuments to faith.

The Sunrise Rock cross has had its own legal history.  In 1999, the National Park Service was  asked to allow a dome-shaped Buddhist shrine to be put up near the cross.  Citing a regulation that bars any commemorative installation in a national park area without headquarters permission, the Service denied the request.  In doing so, the Service noted the presence of the cross, and commented that “it is our intention to have the cross removed.”

Studying the issue further, NPS officials decided that the property did not qualify as a historic place to go on the National Register of such sites, partly because the site is used for religious purposes.  Religious groups have held Easter Sunrise services at the cross for more than 70 years.  In 2000, Congress stepped in, denying the use of any federal funds to take down the cross.  Shortly after, Congress gave the cross designation as a national memorial honoring World War I veterans.  A new plaque noting the sponsorship of the VFW was ordered installed at the site.

In March 2001, Frank Buono, a resident of Oregon who said he regularly visited the Preserve (where he previously had served as an assistant superintendent), filed a lawsuit challenging the cross.  He indicated that, as a Roman Catholic, he is not offended by a Christian cross, nor was he even offended by a religious symbol on government property if the site were open to other permanent displays.  He said that, on future visits to the Preserve, he would avoid the cross.   A federal judge barred the cross after ruling that Buono was entitled to challenge it because its presence subjected him to an unwelcome religious display.

The primary effect, the judge found, was to advance religion, in violation of the Constitution’s Establishment Clause.  The Interior Department appealed to the Ninth Circuit Court; in the meantime, Congress in 2004 ordered the Interior Department to convey the land on which the cross sits to the VFW in exchange for five acres of privately owned land within the Preserve.  The bill required that the land revert to federal ownership if it was no longer maintained as a war memorial.

As a result of the judge’s ruling, the cross was covered by a plywood box.  Later, the Ninth Circuit agreed that Buono had an interest sufficient to allow him to sue, and ruled that the display was unconstitutional.  Relying on its own precedent invalidating the display of a Christian cross in a public park in Eugene, Ore., it said the Mojave cross was a First Amendment violation.  It said it would leave to another day whether Congress’s order of transfer to the VFW was constitutionally valid.

The case then returned to the district court, with Buono asking that the transfer to the VFW be ruled invalid under the Establishment Clause.  The judge agreed, ruling that the transfer was an attempt by Congress to evade the court ruling against the cross display.  This remained a government endorsement of a particular religion, the judge concluded.  The transfer was aimed at keeping the cross in place, the judge found, and was thus barred.  Again, the Ninth Circuit affirmed, finding that the transfer would not end the endorsement of religion.  The government still had control of the property, the court of appeals said.  Over five judges’ dissent, the Ninth Circuit refused to reconsider the case en banc.

Petition for Certiorari

The Interior Department last October took the case on to the Supreme Court (docket 08-472), raising two questions: a challenge to Buono’s “standing” to sue, and a plea to uphold the congressional transfer of the land to private hands as a remedy for any constitutional offense.   While fully airing the “standing” issue, contending that Buono’s objection is ideological rather than religious and that he has suffered no actual injury from the display so it is “a stretch” to allow him to sue, the petition put a heavy focus on what it deemed the constitutional error of the lower courts, especially the Ninth Circuit.

The decision by Congress to transfer the land where the cross sits “was an eminently sensible and constitutionally permissible way of resolving any Establishment Clause problem,” the petition asserted.  This also averted any appearance of hostility to religion or to the memory of “fallen service members.”  And, it added, that part of the Ninth Circuit’s ruling conflicts with one by the Seventh Circuit in a 2005 case.

Buono’s response urged the Court to deny review, arguing that he clearly has a claim of injury, and that the case did not actually present to the Court an order directing removal of the cross, nor did it present the validity of Congress’s transfer of the land to the VFW.  It did contend, though, that the transfer did not cure the Establishment Clause problem. There is no actual conflict on the transfer question between the Ninth and Seventh Circuits, the response contended. On the standing issue, it contended that Buono “has had direct and unwelcome contact with the cross in the Preserve and will incur burdens to avoid exposure to it in the future.”

Finally, Buono’s response argued that the case is not a good one to test any of the issues, because it may well be moot, since the VFW post to which the land transfer was made is now defunct.

The Court granted review of the government petition on Feb. 23, and has set the oral argument for Oct. 7.

Merits Briefs

The Interior Department’s merits brief began with the standing issue, seeking directly to contest Buono’s claim that his objection is a religious one; he only seeks an open forum, and that is not a religious matter.  In essence, the brief argued, he is actually protesting having to observe a war memorial, a use with which he simply disagrees.  In addition, it suggested, he can have no religious objection any longer, because Congress’s order of a land transfer has cured any Establishment Clause problem, and that, too, undercut his claim of injury.

Defending the cross as a war memorial, the government brief said it serves “important secular purposes” — that is, preserving a war memorial.  That is not “a sham,” it insisted.  And, it added, if ever there was an Establishment Clause problem, it has been overcome by a legitimate transfer.  Moreover, it argued, the government will not retain any controls over the property as a consequence of the transfer.  If the site were to revert to the government, it would still be maintained only as a war memorial.

Buono’s merits brief, too, began with the standing issue.  Since the government did not file an appeal to the Supreme Court on the initial question of his right to sue to challenge the cross, that issue is no longer available for review by the Justices, it argued.  It went on to contend that Buono was a proper party to return to court to enforce the judge’s initial ruling that the cross is an invalid display.  Congress’s transfer, he said, caused him a new injury that he has standing to challenge.

Moving on to what merits question may be before the Court, Buono’s counsel contended that the judge’s initial injunction against the cross is settled law and is no longer open to challenge before the Justices, since the government is not permitted to relitigate it.  What is left of the case, it went on, is whether the land transfer remedied the Establishment Clause violation and, if it does not, whether Congress has actually interfered with the achievement of a complete remedy for that violation.  On that point, the brief asserted, the transfer does not achieve a complete remedy.  The government is continuing to endorse the Christian symbol through Congress’s designation of it as a national memorial, the brief said.

There are only 45 other designated national memorials — including such structures as the Washington Monument  and Mount Rushmore.  That argument appeared to be intended to show that the small plot of land and the Mojave cross have been given a truly grand stature by Congress.   The means chosen by Congress for the transfer continued the favoritism of the Christian symbol, the brief said.

The case, predictably, has drawn wide amici support, on both sides, including an array of veterans’ groups arguing opposite views on the impact of the case on war memorials.  The government has drawn a number of conservative advocacy groups to its side, and the former park officer has lined up behind him almost as many liberal advocacy groups.  In each case, the groups are familiar entrants into debates before the Court on religious symbols.

Analysis

For decades, the Court has looked at religious symbols of varying dimensions and content sited on public property, and has usually analyzed each in a fact-specific way.  As a result, on the same day, it has rendered a decision going one way on a Ten Commandments display, and a separate decision going the other way.  Thus, if the Buono case follows the familiar pattern, the Court will parse closely all of the facts surrounding the Mojave cross: how it got there, how long it has been there, how the site has been used, what message or messages government has sent while it has stood there, and why its validity is only now being tested. Those are some of the ingredients in examining whether the government has embraced a religious symbol as its own, and, if so, whether it is unconstitutional as a result.  The war memorial facet of this particular monument could skew that analysis somewhat; it is not clear, though, that the cause to which a monument is formally dedicated can survive a constitutional challenge when it is so distinctly a symbol of one religious faith.

What makes this case different, if the Court decides that it will rule on the merits, is the novel question of how the government can cure an Establishment Clause violation (provided, of course, the Court first finds that there was such a violation).  The Court could well make new law on that remedy issue, if it is reached.

Because so much of the dispute, and the contents of the briefs, are focused on Buono’s standing to sue, the Court would seem likely to give that special attention, perhaps even more than focusing on the usual jurisdictional question of finding that standing must exist before a case could proceed to the merits.  The case has the potential to re-define what kind of injury an objector must show when confronted with a purely religious symbol on public property.  Some of the Justices — especially Antonin Scalia — have made it very clear that they want to narrow the concept of standing to sue, and they have recently appeared to be gaining support among their colleagues.

——————————

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.

Background

Individual authors who work as free-lancers, with no specific publishing home, often contribute their articles for publication in newspapers, magazines, and other periodicals.  They do so for a fee, usually under some form of written agreement.  When the authors create their works, they instantly own the copyright to them, giving them the sole right to copy or distribute the articles.  Copying without their consent is considered an infringement of copyright.  An author may register an article with the U.S. Copyright Office, and there are benefits from doing so, but registration is not necessary to create ownership rights.  In fact, it is estimated that only about 1 percent of free-lancers do register their articles.

From time to time over the years, free-lancers have sold articles for publication in newspapers or other periodicals.  Paying a free-lance fee, the publishing companies get a right to provide the article to their own readers.  They have permission to do that.  But a dispute arose in the 1990s when a group of free-lance authors found that the articles they sold for print publication actually had also been copied into electronic databases.  That had been done, the free-lancers contended, without their consent, so it amounted to infringement of their copyright — by the print publishers in allowing electronic copying of the articles into databases maintained by other companies, and by those other companies — the electronic publishers — for putting the articles into their databases under licenses from the publishers who had no right to allow re-publication.

The publishers, both print and electronic, insisted that they had not infringed the authors’ rights, contending that the electronic publishing was simply another form of revision of the original print publication of the articles.  The publishers contended that the millions of pages of articles now constituted, in electronic form, a large chunk of contemporary American history, and that giving the free-lancers a new layer of rights threatened to put much of that record beyond public access, contrary to the basic goal of the Copyright Act of wide access to original creations.  A lawsuit led to a victory in a federal trial court for the publishers, finding that they had not infringed.  The U.S. Court of Appeals for the Second Circuit , however, disagreed, finding that the free-lancers’ rights to their works had been violated.

That dispute ultimately reached the Supreme Court, in the case of New York Times Co. et al. v. Tasini et al. In a decision on June 25, 2001, the Court ruled by a 7-2 vote that the federal Copyright Act does not allow the electronic copying, thus finding infringement by both the print publishers and the electronic database companies.  What that meant, in practice, was that the free-lancers would have a right to a separate license — and, presumably, a separate fee — for the electronic reproduction.  The Court said it would leave to lower courts the question of how to remedy the infringement. It suggested that the two sides might work out a deal to allow continued electronic archiving of the articles.

After the Second Circuit had ruled in that case, but before the Supreme Court decision came down, some two dozen free-lancers filed their own infringement lawsuits, seeking to proceed in a “class action.”  Those cases were put on hold until after the Supreme Court had ruled in Tasini.  After that ruling, the federal judge presiding over those cases suggested the two sides try to agree on a settlement.

The publishers initially resisted the idea of settling, saying the district court would not have the authority to approve such a deal because some ninety-nine percent of the free-lancers had never formally registered their copyrights.  If so many claims were beyond the Court’s reach and no “class action” settlement could emerge, the publishers contended. That argument was based upon a section of the Copyright Act providing that no claim for copyright infringement can be filed in a federal court for any work that has not been registered.

Even so, it appeared that both sides were interested in a deal.  So, over a period of more than three years, a settlement was worked out, in sometimes heated negotiations.  Under the industry-wide deal, an $18 million settlement fund was set up to pay the free-lancers for electronic publication rights.  Nearly forty publishers joined in the deal.  In return for payments, free-lancers would release all future claims of infringement for articles already in the databases.  That allowed restoration of articles previously taken out of the databases, and retention of those still there.  The deal could become final only with the approval of the District Court.

By one estimate, the electronic archive that was covered by the deal was huge.  “It includes,” according to that assessment, “every published English language work, regardless of where published, that has been on a database since 1997 without the copyright owner’s permission.  It is not limited to ‘freelance’ contributors to magazines and newspapers, nor to the United States.  The class size is unknown.  There are over 26,000 publications covered by the settlement.  Many are not periodicals.  Thirty-five encyclopedias are included.”

Ten free-lance authors, however, objected to the deal, saying they might get no payment at all under the arrangement.  The District Court upheld the settlement, and treated the deal as a class action.  The objecting authors took the case on to the Second Circuit, complaining that the payments they stood to receive were too low, or might not even be made.  The Second Circuit, on its own, raised the question of whether the district court had the authority to rule on claims so far as they involved articles that had not been registered with the Copyright Office — again, about ninety-nine percent of the claims.   The Second Circuit found that the provision in federal law did not permit jurisdiction to approve a class that included owners of unregistered copyrights.  This, the Circuit Court said, is a jurisdictional bar, so only owners of registered copyrighted could be covered by any deal.

The publishers, believing that only a settlement of all the claims — that is, a “global settlement” — would clear the way legally to preserve the electronic record, took the case on to the Supreme Court.

Petition for Certiorari

The publishers’ petition, docketed July 22, 2008, as 08-103, raised two questions: did the Copyright Act clause on registering-before-suing take away the usual power of federal courts to approve a comprehensive settlement that release all claims, even those beyond a court’s jurisdiction, and did the Second Circuit ignore the Supreme Court’s suggestion in Tasini that the two sides could settle in order to allow continued electronic copying of free-lancers’ work.

The authors who fully supported the settlement urged the Court to hear the case.  The objecting free-lancers opted not to respond. But, after initially examining the case, the Court asked the objectors for their views.  They urged the Court to review only the first question raised, on the question of jurisdiction in the district court.

Over the next four months, the Justices examined the case at nine separate Conferences.  Finally, last March 2, they agreed to hear the case, but wrote for itself the issue it would decide: whether the provision of the Copyright Act restricted federal court jurisdiction “over copyright infringement actions.”  A month later, with no one involved defending the Second Circuit’s answer to that question, the Court selected Professor Merritt to do so.  After briefing, the case was scheduled for oral argument on Oct. 7.

Merits Briefs

The publishers, again stressing the “exceptional importance” of the case, argued in their merits brief that allowing the Second Circuit ruling to stand would mean that “the nation’s electronic databases and archives will be permanently depleted, a result Congress surely did not intend, and contrary to this Court’s expectation [in the Tasini decision] that the archives would be restored by ‘an agreement allowing continued electronic reproduction of the Author’s works.’ ”

Contending that the Second Circuit ruling, if upheld, would make it doubtful that any new settlement could be reached, “given the prevalence of non-registration among freelance authors, the cost and burden of registration for works of such modest economic value, and the publishers’ lack of information as to which articles were freelance and how to locate those freelance authors years after their articles were first published.”

On the statutory provision directly at issue, the publishers’ brief contended that it does not restrict federal courts’ jurisdiction at all — that it is not even a jurisdictional clause.  “The text, structure, purpose, and legislative history of the Copyright Act, as well as over 200 years of copyright legislation, lack the faintest suggestion that registration is jurisdictional.”  The Second Circuit, the brief said, relied almost exclusively on Second Circuit precedent and did not even discuss a 2006 Supreme Court ruling (Arbaugh v. Y&H Corp.) that clarified when a federal law is to be treated as jurisdictional.  Applying the test laid down in that ruling, the brief added, the provision at issue here “plainly does not qualify as jurisdictional.”  The fact that registration must precede filing of an infringement lawsuit, the brief said, only makes that a mandatory condition for filing, and does not determine whether the court has jurisdiction to hear a case when some of the parties do have a right to be in court.

In addition, the publishers asserted that there are “legions of decisions” holding that courts may release claims that they do not have the authority to decide, and to approve a settlement deal providing relief that they could not grant.  Once the infringement lawsuits were filed, that gave the courts jurisdiction to approve the settlement even though it reached the claims of authors whose works were not registered, according to the brief.

The consent free-lancers’ merits brief essentially parallels the arguments made by the publishers.  The objecting authors, however, go beyond that in their brief, urging the Court not to rest a ruling in favor of court authority to review the settlement solely on the customary power of courts to approve settlements that release claims not directly before the court.  That brief suggested that the Court should allow owners of unregistered works to pursue their own infringement claims in a context other than a proposed settlement.  Without that option, the objectors said, their claims would be worth less as a practical matter.

The Justice Department joined in the case in June, primarily because of the federal government’s role in the registration of creative works under the Copyright Act and a similar registration system at the Patent and Trademark Office.  The Justice Department itself, the amicus brief asserted, is interested because it pursues civil remedies for copyright violations.  The provision at issue, the brief contended, is an important feature of copyright law, because it serves “public and governmental interests,” but it does not deprive a federal court of all authority to decide.  When Congress intends a restriction on federal court power to be jurisdictional in nature, the Department argued, it uses language to that effect specifically.

Professor Merritt’s brief on the merits, supporting the Second Circuit’s interpretation, argued that Congress “drew an emphatic jurisdictional line” in putting the disputed provision into the Copyright Act.  It has been viewed “for a full century,” by Congress, the courts and copyright experts “as an unwaivable constraint on federal jurisdiction.”  It would defy Congress’ intent and “undermine a complex statutory scheme” to change this view, the professor asserted.  The provision, she said, lies “at the heart of copyright law.” Congress designed it “to further free trade in copyrighted works; shield the courts from ill-defined infringement claims; protect defendants from frivolous suits penalizing expression; and maintain the world’s largest library.”

She summed up on the general point: “Congress did not trust any of these public goals to the caprice of private litigants. It imposed an unwaivable mandate requiring authors of United States works to register their copyrights publicly before invoking federal judicial power to enforce their claims.”   The brief added that, even if the Court were to allow the jurisdictional provision to be waived, the publishers and the settling authors could not do so because they relied upon it in fashioning a compensation scheme that treats registered works as most-favored.  If the provision is now set aside, that scheme will be undermined, and the fairness of the deal put into question, the professor asserted.

Finally, Merritt contended that there is no public interest factor justifying waiver of the restriction on court authority.  She asserted that those involved have no obligation to preserve the historical archives. The settlement is so complex it will not save courts’ time but rather will add to court administrative burdens, and the conduct of the parties in making “flip-flopping arguments” during contentious settlement talks should not now be rewarded because it would encourage similar litigation tactics in the future.

The publishers and the settlement deal itself have drawn amici support from various news organizations and other publishers, and by the Intellectual Property Law Association.  The Second Circuit’s ruling is supported by the Computer & Communications Industry Association and “Netcoalition,” a trade group that speaks for Google, Yahoo, Amazon, eBay, Wikipedia and other Internet-based entities.

Analysis

The fact that only eight Justices will be reviewing the case (because of Justice Sotomayor’s prior involvement in one phase of the electronic database controversy) raises at least the prospect of a 4-4 split on the Court, which would uphold without comment the Second Circuit ruling scuttling the settlement.

That does not seem like a realistic prospect, however; four Justices still on the Court were in the majority when the Court decided the Tasini case in 2001 (indeed, Justice Ruth Bader Ginsburg was its author), and those four supported the idea of pursuing a settlement.  They seem to have at least a chance of picking up a fifth vote, if they see the Second Circuit ruling as undercutting Tasini.  Perhaps that is why the publishers and the settling free-lancers stress that point heavily.

Moreover, a majority of the Court has seemed, in recent years, to be skeptical of treating ambiguous federal laws setting conditions for lawsuits as if they determined basic jurisdictional authority.  That would clearly work against the Second Circuit decision, too.

On the other hand, Professor Merritt has submitted a soundly reasoned brief favoring the jurisdictional ruling, that raised the stakes for Copyright Act understanding beyond the factual confines of this specific case, and leveled telling criticism of the conduct of the parties in working out a deal that clearly favored their interests in an arguably unfair way.

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.

Deputy U.S. Solicitor General Neal K. Katyal, asking the Court to reinstate the law that had been nullified by the Third Circuit Court, said Congress intended to shut down “a robust market” for so-called “crush videos,” images of small animals being stomped to death.  It was, he said, a “narrowly targeted restriction.”

But he was only a few words into his opening when Justice Sonia Sotomayor questioned whether Congress had any evidence that there was “such a robust market” for videos of dog-fighting or even of hunting.  Katyal countered by stressing anew that the law was limited in scope, did not apply to hunting, and was a challenge only to the commercial market.  That simply prompted Justice Antonin Scalia to say that applying it only to a “commercial market” was not to limit it, since that would embrace “anything sold.”

From then on, Scalia continued to assail the sweep of the law, and other Justices joined in the challenge.  Scalia was so relentless that, when Patricia A. Millett, the lawyer speaking against the law, seemed to be leaving some opening for Congress to pass laws in this area, the Justice gave her a mini-lecture on “it is not up to the government to decide what our worst instincts are.”  Millett had the most difficulty fending off questions from Justice Alito about whether Congress could write a law that would ban a TV channel devoted to “human sacrifice.”

In contrast to Katyal’s argument (seemingly one that made no discernible headway with the Court) that the law was a strictly limited one, Millett suggested that it would apply so widely that courts simply could not salvage it by trying to spell out what it did not cover. “You would have to excise so many things, I don’t know what you would have left,” she said.

Katyal had been challenged rigorously throughout his argument, but Millett did not encounter any serious pressure, until Justice Alito opted to join actively in the questioning.

Alito suggested that the law may have accomplished, over its decade on the books, just what Congress had in mind: it had dried up the market for “crush videos,” while not causing a decrease in videos or TV shows about hunting.  He told Millett she should be addressing “what’s going on in the real world,” and not focus on hypotheticals like producing foie gras with geese.   She replied that, if Congress were to write laws in the First Amendment area, it had to “write with a scalpel and not with a buzz saw.”

But she seemed less sure of her argument when Alito moved on to questions about Congress’ authority, hypothetically, to try to stop human sacrifice by banning its depiction on videos and in other media.  She at first said that such a law might be valid if it were “properly drawn” and “narrowly tailored.”  As other members of the Court showed some interest in the human sacrifice hypothetical, Millett made further concessions even while not answering directly.  First Justice Anthony M. Kennedy and then Chief Justice John G. Roberts, Jr., insisted on a direct response to Alito’s hypothetical.  She answered that Congress could legislate in this area, unless it sought to ban the content of such depictions “just because it did not like it.”

A final decision in the case is not expected for at least several weeks.

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.

Disclosed to members of Congress in mid-July (but just now released publicly), it is a policy for holding what the Pentagon calls the “unprivileged enemy belligerent” who has been captured on a battlefield — but not necessarily in Afghanistan — and will go at least initially to the prison at Bagram Air Field outside Kabul.

The new definition for such a belligerent, it turns out, is the same definition as the one the Obama Administration has put forth in civilian habeas cases involving Guantanamo Bay detainees — a definition that has been found too sweeping by at least four federal habeas judges.

Detainees at Bagram get more procedural rights than they have had up to now, but those were kept limited precisely because Pentagon officials have found the procedural rights that detainees get in habeas courts to be too burdensome.  Administratioon lawyers, referring to what has been occurring in habeas cases for Guantanamo prisoners, described those cases as involving  ”intrusive factual development, onerous discovery, and logistical burdens.”

The policy intentionally provides no role for outside lawyers.  Comments in the court filing about the role lawyers have played in the Guantanamo cases show some of the reasons the Pentagon does not want lawyers involved with Bagram prisoners.  “In 2008,” a footnote in the court brief said, “the military was required to facilitate more than 1,850 visits between counsel and their detainee clients at Guantanamo.”  Another footnote says that, since 2007, “a single detainee there has had nearly 20 counsel visits.”

At Bagram, each detainee, when his detention status is reviewed, gets a military officer as his “personal representative,” who is required to “act in the best interests of the detainee.”   The officer is guaranteed against harm to his or her career if actions to aid the detainee are carried out in “good faith.”   The representative is to help the detainee gather information favorable to him, and even to summon witnesses.  But military officers involved in the review process decide whether such information or witnesses are “reasonably available” — a term that is not defined.  (In the ongoing habeas cases, government lawyers have sought to have the judges define that phrase quite narrowly.)

The basic components of the new detention policy follow the steps the military has used for decades in deciding which battlefield captives must be held in custody because they represent a continuing threat — that is, the procedures outlined in Army Regulation 190-8.

But the Obama Administration has added to those procedures new steps that were designed, Pentagon officials said, to “enhance the detainee’s ability to challenge his or her detention.”  Those include the help of the “personal representative,” access to interpreters, mostly open proceedings before a three-officer review board, a right to sit in on all open sessions, a right to take the stand and testify (without being compelled to do so), to call witnesses, to question government witnesses, and present documents.

The evidence the government puts before the review board will not be presumed to be valid, and thus is subject to some challenge.   After an initial detention, based on a decision made by a review board within 60 days after the individual arrives at Bagram, the review boards come back into being every six months for each detainee at Bagram.

The review board, with a majority controlling its votes, can recommend these options: continued detention at Bagram, transfer to Afghan officials for criminal prosecution, transfer to Afghan officials for rehabilitation, unconditional release, or transfer to a third country for prosecution if the detainee is not an Afghan.

The policy does not show any higher-level review of the recommendations of the review board, but once such a board suggests that the individual be detained further, that is reviewed by a legal officer — for “legal sufficiency” only. It is unclear whether that means a review of whether the evidence justified the board’s recommendation, or only that the board followed the proper procedures.

Nothing in the Pentagon documents appears to require that any member of the review board be an attorney, or that the personal representative have any legal training or skills, as the deal with evidence that sometimes has significant legal complications.  The review boards are to have a military lawyer, to provide advice on “legal and procedural matters.” It is not clear how wide-ranging that lawyer’s participation would be, however.

The documents on the new procedures provide no apparent guidance on the nature of the evidence that is to be weighed in making the “threat assessments” that would be the basis for deciding to hold a detainee further at Bagram.

It is also unclear what kinds of evidence will be shared with the detainee’s “personal representative” nor does it spell out how much access that officer would have to classified material.  Detainees will not be allowed to see classified information.