Defense Secretary Robert M. Gates ruled on Friday that 44 photos that reportedly show abuse of detainees by the U.S. military in Iraq and Afghanistan cannot be released publicly.  The Obama Administration notified the Supreme Court on Friday evening of this action by the Pentagon leader, and urged the Court to set aside a lower court ruling directing release of those photos.  The new brief was filed in Defense Department v. American Civil Liberties Union (09-160).

UPDATE: The Court may not act on the new filing until after the AC LU responds.  A statement by the ACLU reacting to the Pentagon decision is here.

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Attorney General Eric Holder, Jr., announced Friday that five Guantanamo Bay detainees previously charged with war crimes before military commissions will now be shifted to a federal District Court in New York City for trial under normal civilian court processes.  Each of the five, Holder said, will be charged with “the most serious crimes” possible, related to the terrorist attacks of Sept. 11, 2001, and the death penalty will be sought upon conviction.  The Attorney General said he was confident the cases could safely be tried in a civilian court, and that adequate security measures will be taken to assure the safety of those in the vicinity of the trials.

The Attorney General’s statement is here and the official press release from the Department of Justice is here.

Besides deciding on the civilian court route for those who allegedly took part in the 9/11 attacks, Holder said he and Defense Secretary Robert Gates had decided to revive the stalled and often troubled military commission process, to try five other Guantanamo prisoners. Among them, Holder said, is “the detainee accused of orchestrating the October 2000 attack on the USS Cole, which killed 17 U.S. sailors and injured dozens of others, and a detainee who is accused of participating in an al-Qaeda plot to blow up oil tankers in the Straits of Hormuz.”  Congress recently revised the military commission process, which was originally set up in 2006 after the Supreme Court had nullified a commission system crafted by the Executive Branch during the George W. Bush Administration.

The discussion of Monday’s arguments in Graham v. Florida and Sullivan v. Florida has continued through the end of the week.  At Concurring Opinions, Alex Kreit comments on the arguments, highlighting in particular Chief Justice Roberts’s interest in the role that a juvenile offender’s age could play in Eighth Amendment proportionality review.  Kreit speculates that the Chief Justice’s proposal “might provide an avenue for a majority of the Court to come together” on the issue of juvenile life without parole, but cautions that the Justices could still diverge even after agreeing on the basic premise of proportionality.  US News & World Report continues its coverage of Graham and Sullivan as well.  Gerry Shih, writing for the Bay Area blog of the New York Times, explores the cases’ potential implications for a new San Francisco ordinance banning officials from reporting undocumented juvenile offenders to federal immigration authorities.

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No oral arguments are scheduled.  The Justices will hold their private conference today, orders from which are expected on Monday.  Check SCOTUSblog’s latest edition of Petitions to Watch for those petitions Tom deems to have a reasonable chance of being granted at this conference.

The conference at George Washington Law School on Friday, November 20 will feature nine law professors, two sitting circuit judges, and other legal experts on four panels:

• “Regularization of Supreme Court Appointments”
• “Term Limits for Service as Chief Justice”
• “Altering the Certiorari Process”
• “Confronting the Disability of a Justice”

Programming runs from 9 a.m. to 4 p.m.  RSVPs are requested by November 17.  For more details, see the program, invitation, and event website.

A new searchable database of Supreme Court opinions and statistics came online last month.  With National Science Foundation funding, longtime Court scholar Harold Spaeth is teaming up with five other law and political science professors  to preserve and expand data he has collected annually since the 1980s.  The website is supremecourtdatabase.org.

The new website features both downloadable datasets about all Court cases since 1953 and interactive search tools that allow users to design and run their own statistical analysis or look up data about individual cases by case name or citation.  Set to the right parameters, the Database churns out answers for questions like “Which decisions in the 1980s involved school desegregation?” or “In how many criminal law cases did Justice Brennan and Chief Justice Burger vote the same way?”

Earlier I talked to Professor Andrew Martin of the Washington University in St. Louis School of Law, one of the architects of the database.  The information for this post comes largely from him.

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On Tuesday, the Court heard oral arguments in Kucana v. Holder.  My earlier preview of the case is available here.  Check the Kucana v. Holder (08-911) SCOTUSwiki page for additional updates.

During oral argument on Tuesday in Kucana v. Holder, the Justices challenged all three arguing attorneys on issues ranging from Congressional intent to statutory interpretation.  Although it was unclear whether the Court was inclined to accept Kucana’s contention that courts have jurisdiction to review decisions by the Board of Immigration Appeals denying motions to reopen immigration proceedings, it seems that the case could be decided on the minutiae of statutory text or on the legislative history behind IIRIRA.

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Obituaries for John J. O’Connor, III, the husband of retired Justice Sandra Day O’Connor, are in today’s newspapers.  O’Connor died yesterday, at age 79, of complications from Alzheimer’s disease.  For obituaries, see The Washington Post, The New York Times, The Los Angeles Times, and the Associated Press (via The Wall Street Journal).  Memorial services will be private.

After the jump, a new diversion for Supreme Court buffs.

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No oral arguments are scheduled, and no non-capital orders are expected.

Below, Stanford Law School’s Sina Kian recaps yesterday’s oral argument in Hertz Corporation v. Friend.  Sina’s earlier preview of the case is available here.  Check the Hertz Corporation v. Friend (08-1107) SCOTUSwiki page for additional updates.

Yesterday the Court heard oral arguments in Hertz Corp. v. Friend.  The case arose from a dispute over diversity jurisdiction, and the question presented was simple, or at least simple to state: how should courts determine a nationwide corporation’s “principal place of business”?

Justice Sotomayor—the most active Justice during this argument—set the tone by acknowledging that any rule was susceptible to reductio ad absurdum arguments: “the problem with every test is that you can find an exception that makes the application ridiculous.”  Throughout the argument, several Justices voiced preliminary agreement that any rule should operate as a rebuttable presumption.  But that left the question: what should be the default rule?

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John J. O’Connor III, retired Justice Sandra Day O’Connor’s husband, died on Wednesday, the Supreme Court announced.  He was 79.  The O’Connors have three sons, and six grandchildren.

FURTHER UPDATE Friday a.m.  “Kiyemba II” has now been docketed as 09-581.

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UPDATE Thursday p.m.  A reader notes that the outcome of this case, besides affecting some 150 cases involving advance notice orders, also will affect a number of cases in which federal judges have issued binding orders against transfers from Guantanamo.  A ruling on the validity of notice orders presumably would settle the legality of such injunctions, too.

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Urging the Supreme Court to broaden its new review of government policy on transfers of detainees out of Guantanamo Bay, attorneys for four Chinese Muslim Uighurs filed a new case Tuesday evening.  If the Court were to grant review, it would focus the Justices’ attention on two layers of dispute between the Executive Branch and the courts, both perhaps affecting President Obama’s plans to close Guantanamo early next year.  The issues in the new case and in an earlier one, granted review by the Court on Oct. 20, “are distinct,” Tuesday’s petition said.  Moreover, the legal issue at stake in the new case is present in more than 150 pending detainee cases in lower courts.

 The Uighurs’ lawyers, though, suggested that the Court, as an alternative, may wish to hold the new case until it decides their first appeal.  “If the Court believes that it would benefit from a decision” in the first case, they said, it could defer action on the second one.  This first one “broadly relates to judicial authority under habeas jurisdiction and the Due Process Clause,” and the decision there thus may have some bearing on the second one, the petition noted.

Both cases bear the title, Kiyemba, et al., v. Obama, et al.  The granted case, now known informally as “Kiyemba I,” is docketed as 08-1234.  It is probably going to be heard in February or March.  The newly filed case — “Kiyemba II” — does not yet have a docket number.  (The D.C. Circuit Court ruling at issue in Kiyemba II can be found here.) Read the rest of this entry »

The Court heard oral argument yesterday in Hertz Corporation v. Friend, which considers the standard to be used to determine a corporation’s citizenship for the purposes of diversity jurisdiction.  At the National Law Journal, Tony Mauro reports that most of the justices seemed to favor some version of a standard that would focus on where a corporation has its headquarters, although some justices expressed concern that large companies might abuse the standard by strategically calculating where to locate their headquarters.

At the BLT, Marcia Coyle describes Justice Alito’s separate opinion concurring in the Court’s summary disposition of Bobby v. Van Hook, which reversed the lower court’s relief granted to a capital defendant because it relied on the guidelines of the American Bar Association to decide the definition of adequate counsel, as “curious.”  Justice Alito criticized the ABA as “’a private group with limited membership’ and added that its views do not necessarily reflect the views of the bar as a whole.”

Monday’s oral arguments in Bilski, Graham, and Sullivan remain in the limelight.  Coverage appears below the jump.

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This edition of “Petitions to Watch” features cases up for consideration at the Justices’ next private conference on November 13.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

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As today is a legal holiday, the Court is not in session.  No more oral arguments are scheduled this week.