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.
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 »
Below, Brian Goldman of Stanford Law School previews Hemi Group, LLC v. City of New York, one of three cases to be heard by the Supreme Court on Tuesday, November 3. Check the Hemi Group, LLC v. City of New York (08-969) SCOTUSwiki page for additional updates.
On Tuesday, November 3, the Court will hear oral argument in Hemi Group, LLC v. City of New York, No. 08-969. The case presents the Court with an issue being watched closely by state and local governments nationwide: whether such governments may bring civil suits to recover non-commercial losses – such as uncollected taxes – under the Racketeer Influenced and Corrupt Organizations Act (RICO), which confers standing upon “any person injured in his business or property by reason of a violation of” RICO’s criminal prohibitions.
Adam Liptak at the New York Times covers the continuing legal battle over gay marriage, and in particular the lawsuit – filed by former Solicitor General Ted Olson – pending before U.S. District Judge Vaughn Walker in California. Liptak notes that public support for gay marriage is not as widespread as the support for homosexual sex and interracial marriage when the Supreme Court ruled on those issues. He quotes Andrew Koppelman of Northwestern Law School, who posits that arguments in favor of gay marriage “will have trouble attracting votes from the current justices.” The San Francisco Chronicle also covers Judge Walker’s decision to order sponsors of California’s ban on same-sex marriage to release campaign strategy documents. Opponents of the ban believe that the documents may contain “evidence of anti gay bias” that would be helpful in their fight to overturn it. Judge Walker’s continuing push for a full trial leads many to believe that he is preparing the matter for eventual Supreme Court review.
Tuesday’s orders are still dominating the news and blog headlines. At USA Today, Joan Biskupic reports on the cert. grant in Kiyemba v. Obama (08-1234), noting that the case represents the first time the Obama administration will come before the Court on the issue of Guantánamo Bay detention policy and also pointing out that Kiyemba will “test the strength” of the Court’s 2008 ruling in Boumediene v. Bush. Andy Worthington at the Huffington Post also covers Kiyemba, detailing the legal background at issue in the case, and a Washington Post editorial urges the Obama administration to craft a political remedy for the Uighur detainees’ plight before the Court resolves the issue – “possibly in a manner that could reach well beyond these cases.”
The New York Times discusses the separation-of-powers issues involved in Kiyemba v. Bush, in which the Court granted certiorari yesterday. At issue in the case is whether a judge can order a detainee released onto United States soil. The Wall Street Journal, Washington Post, and Los Angeles Times also have coverage of the case, which was filed by thirteen Guantanamo Bay detainees who are Uighurs, or ethnic Muslim Chinese, and are no longer considered enemies of the United States. NPR predicts that Kiyemba could be either a showdown between the three branches of government or could “fizzle out” if the Uighur detainees are resettled before the decision is granted. The BLT summarizes the Court’s orders released yesterday.
Christine Hurt at The Conglomerate has this piece on last week’s Houston Chronicle article, which wondered if the presence of three Enron-related cases on this Term’s docket is more indicative of zealous Enron Task Force prosecution or effective Enron lawyering on appeal. One former prosecutor theorizes that the matter is so well-represented because Enron is an opportunity for government prosecutors to “develop new, aggressive theories to enhance their arsenal,” while law professor Adam Gershowitz credits the deep pockets of the defendants in procuring top-notch representation. In her response, Hurt downplays the significance of the high-priced lawyers, pointing out that their resources and expertise did not help them win at trial, and adds that the existence of defendants with “resources…‘on par’ with the government’s resources” does not exactly represent a perversion of the American justice system in the first place.
At Balkinization, Barry Friedman analyzes the Court’s docket for the new Term and notes that business and criminal cases have dominated the Court’s recent cert. grants. Observing that these cases are less likely than some others to divide the Justices on ideological grounds, he hypothesizes that this Term’s docket may result from “defensive denials” – that is, the practice by which a Justice votes to deny a petition for certiorari when her interpretation of the case is likely to be overruled on the merits. Because Justices on the current Court are sometimes wary of their colleagues’ positions on ideologically controversial issues, Friedman reasons, some may be unlikely to grant cert. in cases addressing those concerns.
Below, Akin Gump’s Scott Street recaps last Tuesday’s oral argument in Bloate v. United States. Check the Bloate v. United States (08-728) SCOTUSwiki page for additional updates.
For the most part, the Supreme Court considers two types of legal issues. It decides constitutional questions; on those issues, the Court gets to decide what the law should be. It also decides questions about federal statutes. On those questions, the Court certainly has the power to say, in the words of Marbury v. Madison, “what the law is,” but it has always said that its primary goal is to determine Congress’s intent, rather than what it thinks the law means.
Most of the major news outlets have coverage of the hospitalization of Justice Ruth Bader Ginsburg, including the Washington Post, Wall Street Journal, and USA Today, as well as the BLT. It is the second time in less than a month that Ginsburg has been hospitalized, but she has returned home. Yesterday Lyle covered the story extensively as well.
Wednesday’s oral argument in Alvarez v. Smith disappointed some commentators insofar as the Justices focused largely on procedural questions rather than on a clash between individual rights and the police. Nathan Koppel at the WSJ Law Blog has this commentary. Ilya Somin at The Volokh Conspiracy explains why the case should be a significant one for the Due Process Clause, though it has “failed to attract the attention it deserves.”
Below, Akin Gump’s Scott Street recaps Wednesday’s oral argument in Perdue v. Kenny A. Check the Perdue v. Kenny A. (08-970) SCOTUSwiki page for additional updates.
It became clear during oral argument in Perdue v. Kenny A.—in which the Court will decide whether a court can ever enhance an attorney’s fee award under Section 1988 based on the quality of representation and the results the attorneys obtain—that the parties’ arguments rest on two central points about the “lodestar” approach to calculating attorney’s fees:
Tuesday’s cert. grant in the case of former Enron executive Jeffrey Skilling continues to dominate the headlines. Greg Burns of the Chicago Tribune comments on the grant, arguing that the decision to review Skilling’s conviction sets the stage for a decrease in fraud prosecutions under a widely used law prohibiting executives and government officials from depriving their clients and constituents of the “right to honest services.” However, Burns points out that the Court’s decision not to consolidate Skilling’s case with two other “honest services” cases, Weyhrauch v. United States and Black v. United States, suggests that the “honest services” statute might not be thrown out altogether. The piece also suggests that the outcome of the cases may have implications for the indictment of former Illinois Governor Rod Blagojevich.
The grant of certiorari in Skilling v. United States yesterday is dominating news and blog headlines.
As the New York Times reports, former Enron CEO Jeffrey Skilling is challenging his conviction under the federal law banning “honest services fraud,” or an attempt to “deprive another of the intangible right of honest services.” Skilling claims the law is unconstitutionally vague, unless it is interpreted to mean that the defendant intended to derive private gain at the expense of his employer. The government has conceded that Skilling’s actions to inflate Enron profits did not advance his private interests. Yet Bloomberg points out the government’s claim that, for Skilling, “a victory on the honest services issue would leave intact his convictions on other securities fraud and conspiracy counts.”
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.
The conversation on last week’s arguments is still going strong. Over the weekend, the Salt Lake Tribune published an opinion piece on Salazar v. Buono (08-472), arguing that Congress should not be rewarded for its decision to sell the land on which the cross in question sits because to do so would set a precedent for Congress to avoid implicating the Establishment Clause simply by privatizing the land in dispute. Guest-writing for ACSblog, the ACLU’s Daniel Mach adopts a similar stance, pointing to the historic religious diversity of the U.S. military as an argument for removal of the cross. At the Miami Herald, Leonard Pitts Jr. disagrees, suggesting that the Mojave cross in particular might best be judged by “common sense” and not by the Supreme Court since, in his opinion, it is unlikely that the cross causes legitimate injury to anyone. In an essay at Findlaw, Vikram David Amar recaps the facts and key arguments in the case, and anticipates the questions the Court might answer in its ruling in Salazar; according to Amar, the Court will likely avoid the Establishment Clause implications in the case, addressing instead whether Buono had standing to challenge the placement of the cross, and whether the land transfer allows Congress to avoid any suggestion of religious endorsement.
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