A three-judge U.S. District Court this week approved an agreement to end a broad constitutional challenge to the Voting Rights Act’s Section 5 — a challenge that at one time had appeared likely to succeed in the Supreme Court.  By attaching their signatures to a proposed consent decree on Tuesday, the three judges put into effect an agreement that allows a small Texas utility district to come out from under Section 5 coverage, and scuttles, for now at least, its constitutional arguments against that provision.  No objections to the agreement had been filed since it was put before the District Court Oct. 7.

A post discussing the consent agreement is here. In U.S. District Court, the case is Northwest Austin Municpal Utility District No. One v. Holder (06-1384).

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The Supreme Court on Monday released the list of cases to be argued in the sitting beginning Mon., Jan. 11.  It can be found here.  There will be no afternoon arguments.  The first case of each day begins at 10 a.m.  The day-to-day list of cases on the calendar, with a summary of the issues involved, appears after the jump.

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The Court has granted certiorari in Hamilton, Chapter 13 Trustee v. Lanning (08-998), New Process Steel v. National Labor Relations Board (08-1457), and Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc. (09-223). As of this grant, Akin Gump represents the respondent in Hamilton v. Lanning.

The Court  invited briefs from the Solicitor General in four more cases, listed below the jump.

The full order list is here.

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The Supreme Court agreed on Monday to clarify when federal courts are barred from ruling on challenges to state tax laws. This was one of three business-related cases the Justices added to their docket for rulings this Term.  In another order, the Court refused to allow a Guantanamo detainee to bring his plea for release to the Court without waiting for a ruling on it in a lower court; that action appears to leave the prisoner in a new legal limbo, since the lower court has put his case on hold for the next several months.

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).

The Court also asked for the U.S. Solicitor General to provide the views of the federal government on four new cases. When the responses come in, the Court will then decide whether to hear any of those cases — including a major test case on the power of states to pass their own laws to bar illegal aliens from getting jobs in those states. Read the rest of this entry »

Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison.  The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.

Both cases bearing that title are sequels to the Supreme Court’s June 2008 decision in Boumediene v. Bush, esablishing a constitutional right for Guantanamo prisoners to challenge their continued detention.  In each, the detainees’ counsel are seeking to curb or control what the Pentagon and U.S. diplomats may do about the release of detainees from Guantanamo.   After the Court granted review is what is now known informally as “Kiyemba I,” detainees’ counsel asked for more time to plan their new appeal in “Kiyemba II.”  The Court’s docket sheet entry, here, reflects the Chief Justice’s grant of added time to file, until Nov. 10.  The petition otherwise would have been due next Monday.

“Kiyemba I,”  just granted review, tests whether federal judges may grant release of Guantanamo detainees to live in the U.S.  “Kiyemba II,” the next case, will ask whether judges may bar transfer out of the prison in Cuba to countries where they fear torture or abuse.   The D.C. Circuit Court found no power in the courts to take either action as a remedy in a habeas case.

The lawyers will use the added time to file Kiyemba II to decide whether to ask the Court to delay any action on it until after Kiyemba I is decided, or to take other action on it.

UPDATE Thursday p.m.  The Ninth Circuit Court on Thursday released an opinion explaining  its ruling — the one that is at issue in this case –  that would allow state officials to release the identities of the Refernedum 71 petition signers.  (Thanks to Howard Bashman of How Appealing blog for the alert and the link.)

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Over one Justice’s dissent, the Supreme Court on Tuesday afternoon blocked officials in Washington State from publicly disclosing the names and addresses of individuals who signed petitions seeking a voter referendum on a new gay rights law.  The disclosure will remain blocked until the Supreme Court can act on a coming appeal by sponsors of the referendum, known as Referendum 71.  The practical effect is that the ballot measure will go before the state’s voters on Nov. 3 without revelations of who signed the petitions to put it on the ballot.  (A post on Monday discussing this dispute can be read here.)

UPDATE 1:30 p.m.  The Justice Department, in response to the Court’s order granting review of the detainee case, issued this statement.

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The Supreme Court, probably complicating President Obama’s plans to make new policy on detainees, agreed on Tuesday to rule on the power of federal judges to order prisoners released from Guantanamo Bay, Cuba.  The specific issue in Kiyemba, et al. v. Obama, et al. (08-1234) is whether judges may require the release of Guantanamo prisoners to live in the U.S. itself, but the case has broader implications for all issues surrounding release or transfer of detainees. 

The case — the first on a war-on-terrorism question to be heard by the Court since the new President took office — will require the Justices to explain further (and maybe try to reconcile) two rulings they had issued on the same day in June 2008: Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued imprisonment, and Munaf v . Geren, limiting habeas rights for individuals held by the U.S. military but facing criminal charges in another country.  The Obama Administration, like the Bush Administration before it, has relied heavily upon the Munaf decision in arguing that federal judges do not have the authority to control the release or transfer of detainees.  Once such a prisoner has had a chance to pursue a habeas claim, the government has contended, that is all that the Boumediene decision requires.

This was one of two cases the Court added to its docket for decision this Term.

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The Court has granted certiorari in Kiyemba v. Obama (08-1234) and the combined cases of  Kawasaki Kisen Kaisha v. Regal-Beloit Corporation (08-1553) and Union Pacific Railroad Company v. Regal-Beloit Corporation (08-1554). The full order list is available here.

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UPDATE 2:55 p.m.  Justice Anthony M. Kennedy on Monday afternoon put back into effect, temporarily, a federal judge’s order that protects the privacy of signers of a petition seeking a voter referendum on a gay rights law in Washington State.  He did so, however, only until a further order is issued by himself or by the Court; the order is here. Kennedy acted on the basis of the application, before getting a response, due this afternoon, from state officials.  FURTHER UPDATE 5:50 p.m.  The state officials’ response is now in; it can be found here.

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Supporters of a ballot measure asking Washington State voters to veto a new state law on benefits for gay couples who enter “domestic partnerships” have asked the Supreme Court to protect the privacy of individuals who signed petitions to get the issue on next month’s election ballot.  The application, filed with Justice Anthony M. Kennedy, is John Doe, et al. v. Reed, et al. (09A356); it can be found here.  Kennedy has sought a response from state officials by this afternoon.

The dispute raises a series of constitutional questions: is signing a petition to get an issue on the ballot a form of political speech protected by the First Amendment; is the petition-signing process a “public forum,” so that signers have forfeited any privacy right; does a state have a valid reason for publicly disclosing who supports a referendum?  At this stage, the case does not involve the legality or constitutionality of the domestic partnership law that Washington’s governor signed in May.  Sufficient signatures have now been filed to refer that law to the state’s voters at the Nov. 3 election, as Referendum 71.

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The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.  This was one of four cases granted review, to be argued early next year.  The Court, however, took no action on a significant new Guantanamo Bay detainee case, Kiyemba v. Obama (08-1234). (UPDATE: The Court will again consider the Kiyemba case at its next private Conference, next Monday, according to the Court’s electronic docket.)

The other newly granted cases raise these issues:  the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier); whether federal law on federal employees’ health benefits preempts a state court lawsuit filed against a government contractor administering such benefits (Health Care Service v. Pollitt, 09-38), and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).

The Skilling case puts before the Court the third case this Term on the proof that prosecutors must offer in order to win a conviction for failing to provide “honest services” to someone else — the public, a government agency, or one’s employer.  Two of those cases will be heard back-to-back on December 8, and the Skilling case is likely to be scheduled for argument in February or March.

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The Court has granted certiorari in the following four cases, and the briefs are now posted below.  The full order list is available here.

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UPDATE 1:55 p.m.  The Court will again consider the case of Kiyemba v. Obama (08-1234) at its next scheduled private Conference, this Friday, according to the Court’s electronic docket.

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 The Supreme Court opened its new Term Monday morning, and issued a lengthy list of new orders.  The closely-watched case on the rights of detainees at Guantanamo Bay, Cuba — Kiyemba v. Obama (08-1234) — was not on the list, however.  The Court invited the U.S. Solicitor General to offer the government’s views on four new cases, and invited Texas’ Solicitor General to provide the state’s views on another.  No new cases were granted review; the Court had agreed last Wednesday, before the Term opened, to grant ten cases.

The cases in which the government’s reaction was invited includes a major case testing the power of state and local governments to require employers to provide minimum spending to cover their workers’ health care needs — so-called “fair share” or “pay-or-play” laws.  The case, Golden Gate Restaurant Association v. San Francisco (08-1515), conceivably could be influenced by what happens in Congress this year on health care reform.  The other three cases the S.G. will analyze are Williamson v. Mazda Motor (08-1314), testing the right to sue auto makers over allegedly faulty seatbelts when a federal rule exists on such installations; Costco Wholesale v. Omega (08-1423), involving the scope of the “first-sale doctrine” in copyright law, as it applies to goods made and sold overseas and then brought into the U.S., and Missouri Gas Energy v. Schmidt (08-1458), testing state power to tax natural gas temporarily stored in an interstate pipeline system.  (The Missouri Gas Energy petition was filed by a former nominee for the Supreme Court, ex-White House Counsel Harriet E. Miers, now a private attorney in Washington, D.C.)

The state of Texas’ views were invited in Rhine v. Deaton (08-1596), on the constitutionality of a state’s refusal to provide a court-appointed lawyer to a parent in a case involving potential termination of parental rights.

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Today’s order list is available here. There are no new grants of certiorari.

Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.” Read the rest of this entry »

The Court has granted certiorari in the following 10 cases. The full order list is available here.

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