The transcript of today’s argument in Philip Morris USA, Inc. v. Williams (07-1216) is now available here.

The transcript of today’s argument in Haywood v. Drown (07-10374) is now available here.

David Schwartz discusses Monday’s argument in Kansas v. Colorado.

One might think that an original jurisdiction case about expert witness fees arising from a water compact dispute might lack some of the flair that other Supreme Court cases display.  Yet submerged within this rough lies a diamond of a constitutional issue, namely the contours of the Supreme Court’s original jurisdiction authority as granted by Article III.  It was with this diamond that Kansas Attorney General Six opened in his oral arguments, claiming that the Constitution does not give Congress the power to make exceptions and regulations for the Court’s original jurisdiction, unlike in the Court’s appellate jurisdiction.  The justices had two responses to this argument.

The first, and most immediate, was a response by Chief Justice Roberts, who wondered if the Court even had to reach the constitutional issue, given the statutory structure of the case.  Indeed, many of the justices had questions on the differences between 28 U.S.C. § 1920, which Kansas says only applies to, inter alia, compensation for expert witnesses in lower courts, and 28 U.S.C. § 1911, which General Six argued is merely a congressional grant of discretion that the Court already has.  This reading was supported both by the fact that in 219 years of the Court’s original jurisdiction practice, it never referred to any congressional cost provision as dictating its practice.

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The federal government on Tuesday recommended the Court deny certiorari in Biomedical Patent Management Corp. v. California Dept. of Health Services (07-956), a patent dispute involving the limits of state sovereign immunity. The brief, filed in response to an order last April inviting the views of the Solicitor General, is available here. To view previous certiorari stage filings in the case, click here.

In advance of today’s argument in Haywood v. Drown (07-10374), Stanford student David Owens prepared this write-up of the case for SCOTUSwiki.

Pursuant to New York Correction Law § 24, New York courts lack jurisdiction under state or federal law to entertain civil actions seeking money damages against Department of Corrections (DOC) officers, which means these courts cannot entertain causes of action under 42 U.S.C. § 1983 against DOC officials. Today in No. 07-10374, Haywood v. Drown, the Court will consider whether this limitation violates the Supremacy Clause of the Constitution.

Background

This case stems from petitioner Keith Haywood’s two Section 1983 actions in New York courts against DOC employees. These actions followed two guilty verdicts in DOC administrative hearings stemming from incidents involving DOC officials—one related to an alleged physical altercation, and another for improper mail solicitation. Haywood filed his suits in the state supreme court (New York’s lowest trial court of general jurisdiction), where both sets of defendants moved to dismiss the complaints for lack of jurisdiction based on Section 24, which provides in pertinent part that: (1) “no civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department [of corrections], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of employment”; and (2) “any claim for damages arising out of . . . the scope of employment . . . shall be brought and maintained in the court of claims as a claim against the state.” The trial court agreed and dismissed the complaints.

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After spending nearly a full hour Wednesday morning on the minutiae of jury instructions and Oregon state court precedents, the Supreme Court began thinking about a bolder approach: should it start over with a new round of briefing in the major new tobacco punitive damages case?  That was the suggestion thrown out by Chief Justice John G. Roberts, Jr., as the Court was about to wind up its hearing on Philip Morris USA v. Williams (07-1216).  The idea, perhaps, will be explored further when the Court meets in private on Friday to discuss what to do about the case.

Roberts’ suggestion came after three of his colleagues — Justice David H. Souter, doing so fervently, and Justices Anthony M. Kennedy and Stephen G. Breyer, somewhat obliquely — raised a concern that the Court needed a way to assure that when it makes a constitutional ruling, lower courts will not nullify it by coming up with a procedural escape hatch.

That is a concern that Philip Morris has been trying hard to stoke in challenging — for the third time in the Supreme Court — a $79.5 million punitive damages verdict in favor of a smoker’s widow, Mayola Williams.  The tobacco company has argued that the Oregon Supreme Court “defied” a 2007 Supreme Court ruling telling the state tribunal to reconsider that verdict by applying a newly minted constitutional limitation. The state court did not do so, instead upholding the verdict afresh under a state procedural rule for jury instructions.

The state court’s response was the main focus of most of Wednesday’s argument.  The Court, in granting review of Philip Morris’ new challenge last June, had agreed to hear only the validity of that response by the state court. The Court did not grant review on a second issue the company had put forth: whether the $79.5 million verdict was just too high, under Supreme Court constitutional limitations.

But the Chief Justice, reacting to the way the hearing unfolded in late stages on Wednesday, suggested that the Court might now grant review of the second issue, and order new briefing and argument on it (something that still could be accomplished this Term). That, Roberts said, would be one way the Court could avoid a ruling that might encourage state courts to defy constitutional rulings.  In short, the Court would be addressing the constitutionality of the $79.5 million verdict on “excessiveness” grounds rather than on the refusal-to-obey issue that Philip Morris had also raised. (That, incidentally, also would have the virtue of the Court not having to say unpleasant things about the Oregon Supreme Court.)

Both lawyers in the case — Stephen M. Shapiro for Philip Morris, Robert S. Peck for Mrs. Williams — did not embrace the idea with enthusiasm, but both conceded that would be an alternative the Court could pursue.  No member of the Court publicly opposed the idea, although Justice Ruth Bader Ginsburg — who had voted earlier to uphold the $79.5 million verdict — seemed a bit hesitant.

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The federal government on Tuesday recommended the court deny certiorari in AK Steel v. West (07-663), an ERISA case. The brief, filed in response to an order last June inviting the views of the Solicitor General, is available here. To read previous certiorari stage filings in the case, click here.

At 10 a.m., the Court will hear argument in Philip Morris USA, Inc. v. Williams (07-1216), on whether the Oregon Supreme Court improperly upheld a $79.5 million punitive damage upward under a state procedural rule. Steven Shapiro of Chicago will argue for the petitioner, and Robert Peck of Washington, D.C., will argue for the respondent.

At 11 a.m., the Court will hear argument in Haywood v. Drown (07-10374), on whether the Supremacy Clause bars states from stripping state courts of jurisdiction over certain federal constitutional claims. Jason Murtagh of Philadelphia will argue for the petitioner, and New York Solicitor General Barbara Underwood will argue for the respondent.

At 10 a.m. Wednesday, the Supreme Court will hear oral argument in Philip Morris USA, Inc., v. Williams (07-1216).  Arguing for the tobacco company will be Stephen M. Shapiro of Mayer Brown in Chicago. Representing Mayola Williams will be Robert S. Peck of the Center for Constitutional Litigation in Washington, D.C.  Filings in the case can be found on ScotusWIKI at this link.

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For most of a decade, Philip Morris USA, Inc., the cigarette company, has been feuding with the Oregon courts over a punitive damages award to the widow of a smoker – Mayola Williams. In the meantime, the verdict, with interest, has just about doubled. The Supreme Court has been drawn into the feud twice before; now, the company’s third appeal seeks to turn the fight into a contest between the Supreme Court and the Oregon Supreme Court.

Background

In 1993, the Supreme Court told the states that the Constitution does not allow juries to impose “grossly excessive” punishment for corporate wrongdoing. That was in the case of TXO Production Corp. v. Alliance Resources Corp. Since then, the Court has returned to the task of spelling out just what level of punitive damages verdict would be struck down as “excessive.” No one in corporate America has tested the issue more often in state and federal courts than the nation’s cigarette makers, who have been frequent targets of punishing verdicts. There is a special place in those litigation annals for Philip Morris USA v. Williams (now docketed in the Supreme Court under 07-1216). By the end of the current Court Term, there will be a third precedent bearing that title.

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

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

Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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