No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Justices will next convene for their private conference on Friday. Oral arguments will resume January 12.

A major new test case on separation-of-powers reached the Supreme Court late Monday, challenging the constitutionality of the new accounting agency that Congress set up following the Enron scandal to oversee the firms that audit the books of corporations.  The petition challenging a key feature of the Sarbanes-Oxley law is Free Enterprise Fund, et al., v. Public Company Accounting Oversight Board, et al.; it can be found here. (A docket number has not yet been assigned.)

The new Board subjects auditing firms that review the books of public companies to an array of new regulations.  The Board was created to ensure that it was free from political influence. But, as a result, the challengers contend, it puts the Board entirely beyond the control of the President, who neither names nor can remove its members.  They are chosen by the Securities and Exchange Commission.

“At every level,” the petition argues, “it is clear that this Court’s review is warranted.  the issues presented go to the heart of the relationship between the Legislative and Executive Branches and all agree that this is a ‘case of first impression’ because it involves a wholly unhprecedented model for federal agencies.”

The Board was upheld by a 2-1 vote on the D.C. Circuit Court; rehearing en banc was denied by a 5-4 vote.  The Circuit Court panel’s decision and dissent can be found at this link.

Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA.  Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Justices will next convene for their private conference on Friday. Oral arguments will resume January 12.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on January 16. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. (Thanks to Max Schwartz for assistance in compiling this week’s list.) To access previous editions of Petitions to Watch, including the list for the upcoming conference of January 9, visit our archives on SCOTUSwiki.

Going forward, to avoid any appearance of handicapping our own petitions, this feature will separately list any cases in which lawyers from Akin Gump or Howe & Russell represent the lead parties, regardless of Tom’s opinion as to their likelihood of being granted. To see the full list of petitions on our watch list, continue reading after the jump.

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UPDATE: President-Elect Obama has officially announced the nomination of Kagan along with three other posts at the Department of Justice. The text of the announcement is available here.

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According to an email sent this morning to students and faculty at Harvard Law School, incoming President Barack Obama intends to nominate Dean Elena Kagan as Solicitor General. Kagan, 48, clerked for Justice Thurgood Marshall during the October 1987 term and later taught at the University of Chicago School of Law at the same time as Obama.  She served in the Clinton White House from 1995 to 1999, and, after moving to Harvard Law School, was named Dean in 2003. Kagan has also been mentioned as a potential Supreme Court nominee under a Democratic adminsitration (see here). Kagan has not previously argued before the Supreme Court.

The text of the email appears after the jump.

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No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Justices will next convene for their private conference on Friday. Oral arguments will resume January 12.

NOTE: This post has been corrected to show that the hearing is Wednesday, not Tuesday.

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Since June, and the Supreme Court’s ruling in Boumediene v. Bush, it has been clear that foreign nationals held as terrorism suspects by the U.S. military at Guantanamo Bay, Cuba, have a constitutional right to challenge their captivity in U.S. courts in Washington.  On Wednesday, a federal judge will begin exploring whether Boumediene’s result reaches another military prison where the U.S. now holds perhaps three times the number of detainees still left at Guantanamo Bay — the “Bagram Theater Internment Faciltliy” at an airfield some 40 miles outside of Kabul, Afghanistan.

The military objective of Bagram is fundamentally the same as it was at Guantanamo: set up a facility where battlefield captives could be processed, then held for the duration of the “war on terrorism,” or released if found not to be dangerous militarily.  And a secondary objective was the same at each place: retain full military control over the fate of the detainees by putting them in an overseas site beyond the reach of U.S. courts — 1,100 miles away in Cuba, and 7,000 miles away in Afghanistan.

The Supreme Court has repeatedly thwarted the campaign to insulate Guantanamo from the courts’ review.  But the Justice Department will be making an argument that none of those rulings has any application to the prison at Bagram Airfield, and that, therefore, a federal judge should dismiss legal challenges by Bagram detainees by finding that U.S. courts have no jurisdiction over them.

Countering that argument, lawyers for detainees in four Bagram cases will be contending that, not only does the Boumediene decision reach that far, so does a decision the Supreme Court announced on the same day as Boumediene – Munaf v. Geren, extending habeas rights to a U.S. military facility in Baghdad, Iraq.

Starkly contrasting interpretations of those two rulings emerge in briefs filed by the two sides in the Bagram cases.  Typical are the briefs filed in Wazir v. Rumsfeld (District Court docket 06-1697).  (Those with access to PACER can find the Wazir documents under that docket number at the District Court’s website; the government motion to dismiss is docket number 12, the detainees’ opposition is docket number 15, and the government reply is document 18.) The other cases are Maqalah v. Rumsfeld, 06-1669; Al Bakri v. Gates, 08-1307, and Al-Najar v. Gates, 08-2143.

In ordering a hearing for 10 a.m. Wednesday, District Judge John D. Bates made clear he would be focusing on whether his court has any authority to rule on the Bagram detainee claims.  He told lawyers not to expect to spend much time on any other issue in the cases.

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No oral arguments are scheduled at the Court this week.

The Justices will hold a private conference on Friday, orders from which could be released that afternoon. To view our list of petition’s to watch at Friday’s conference, click here.

The petitioner’s merits brief is due Friday in United States v. Denedo (08-267). The respondent’s merits brief is due Wednesday in Carlsbad Technology, Inc. v. HIF Bio, Inc. (07-1437) and Nken v. Mukasey (08-681), and Friday in United States v. Navajo Nation (07-1410). (Links above direct to case pages on SCOTUSwiki.)

For those that haven’t already read or heard about it, Fourth Circuit Judge J. Harvie Wilkinson has written an essay forthcoming in the Virginia Law Review entitled “Of Guns, Abortion, and the Unraveling of the Rule of Law,” see here.  In the piece, Judge Wilkinson compares District of Columbia v. Heller to Roe v. Wade in four respects: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of principles of federalism.”  Like Roe, Wilkinson asserts that Heller represents “an act of judicial aggrandizement” that takes power from the political branches of government and gives it to the judicial branch.  There has already been some academic commentary about Judge Wilkinson’s essay on various blogs, see here, here, and here.

In response to Judge Wilkinson’s essay, Nelson Lund and David Kopel have posted “Unraveling Judicial Restraint: Guns, Abortion, and the Faux Conservatism of J. Harvie Wilkinson III” on SSRN, see here.  Similar to the Wilkinson piece, the Lund and Kopel piece has been heavily downloaded.  In a strongly-worded critique of Judge Wilkinson, the authors argue that, unlike the right to abortion recognized in Roe, “the right of the people to keep and bear arms is in the Constitution” and thus the analogy between Roe and Heller is inapt.  In particular, the authors challenge Judge Wilkinson’s contention that Justices Scalia and Stevens essentially argued to a draw in their respective Heller opinions.  For those interested in Heller, I would suggest reading both articles.

On Wednesday, we filed this reply brief for our petition in Level 3 Communications v. City of St. Louis.  The petition is here and the brief in opposition is available here.

The reply brief also appends an amicus brief we filed contemporaneously in a related case Sprint v. County of San Diego.  Sprint’s cert. petition is available here.

The case is currently set for conference on January 16.

Giving the new government of President-elect Barack Obama its first chance to take a position on a legal case involving the Guantanamo Bay detention controversy, and specifically on claims of torture there, the D.C. Circuit Court on Friday extended the time for filing new briefs in a case sent back to that court by the Supreme Court.

In a new briefing order, found here, the three-judge panel agreed to an extension of filing time, so that initial briefs from the Justice Department and from lawyers for four former detainees at Guantanbamo Bay will be due Jan. 26 — six days after the new President takes office.  Reply briefs are now due Feb. 9.

A post discussing this case after the Supreme Court had acted on it can be read here.  Counsel for the four Britons who are purusing claims of torture and religious bias at Guantanamo sought additional time for the briefing, noting the holiday season and questioning whether the Circuit Court had authority to act on the case before the Supreme Court had issued a formal order to implement its action.  (The motion for added time to file is here.)  The Justice Department opposed the extension, saying there was no need for it and arguing that there was no real question of jurisdiction.  (The opposition is here.)

If the Obama Administration were to switch the government’s position in the case, and argue, for example, that the former detainees should be allowed to go forward with their claims in court, the individuals who were sued in the case very likely would be able to keep the case going with private lawyers; up to now, they have been represented by the Justice Department.

NOTE TO READERS: This post is another in a series exploring the meaning and scope of prior Supreme Court rulings — here, the June 16, 1969, decision in Powell v. McCormack (395 U.S. 486).

Analysis

Twice in recent days, the Democrats in the U.S. Senate have said, with unqualified confidence, that they have the power to refuse to accept “anyone appointed by [Illinois] Gov. [Rod] Blagojevich” to take the Senate seat vacated by President-elect Barack Obama.  The claim has been widely discussed, with many observers saying, with complete confidence, that the Senate has no such power.  That conclusion appears to rest mainly on one precedent: the Supreme Court’s decision in Powell v. McCormack in 1969.

The Senate’s Democratic leaders have yet to spell out all of the reasons why they disagree, including the full dimensions of the power they claim to bar a Blagojevich nominee — aside from an unexplained reference to “our Constitutional authority under Article I, Section 5.”

But one thing is already very clear: the Senate’s Democratic leadership is drawing a sharp distinction between its power to judge the qualifications of any Senate nominee, and its power to judge the validity of the process by which that nominee was selected.  The Supreme Court decision in the Powell case bears directly on the former, but maybe not — or, at least, not so directly — on the latter.

No one doubts that former Illinois Attorney General Roland W. Burris — Gov. Blagojevich’s choice — has the qualifications that the Constitution demands of a Senator: at least 30 years old (Burris had his 71st birthday last Aug. 3), a citizen of the U.S. for at least nine years (Burris was born in Centralia, Ill., no doubt is a citizen by birth and has never renounced that citizenship), and be a resident of the state he would represent (Burris is a life-long Illinoisan).  Those are the only qualifications specified in Article I, Section 3 of the Constitution.

But the Senate’s leaders say that is not the issue.  In their statement on Tuesday, they said: “This is not about Mr. Burris; it is about the integrity of a governor accused of attempting to sell this United States Senate seat.” (The leadership statement, and a separate statement by President-elect Obama supporting their position, can be read here.)

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Praising the federal courts for doing their work with only a “tiny share of the federal budget,” Chief Justice John G. Roberts, Jr., protested on Wednesday that Congress has awarded its own members and “every other federal employee” a cost-of-living pay raise this year — but left out the judges.

In his year-end report on the federal judiciary, the Chief Justice said Congress’ inaction on repeated pay raises for judges was a “bad situation” made worse by denying the judges the same treatment provided others working for the federal government.  The failure to act, he said, “vividly illustrates why judges’ salaries have declined in real terms over the past twenty years.”

Just as members of Congress face pressing problems, especially during the economic downturn, judges, too, confront “issues of momentous importance” to those involved in court casses and to the broader community, the report declared.  In fact, Roberts added, legal issues that come before the judges are growing ever more complex.  That only emphasizes the need to attract “the finest legal minds” to the bench.

The Chief Justice conceded that “many are tired of hearing it, and Iknow I am tired of saying it,” but he said he had to renew his plea for pay raises for judges to keep pace with inflation.

Much of the annual report was devoted to details of how the federal courts are saving public funds in a time of budgetary squeezes.

Today we filed this reply brief in No. 08-645, Abbott v. Abbott, which will be on the January 16 conference.  At issue in the case is whether a “ne exeat” right, which requires consent from one parent before the other parent may remove the child from his country of habitual residence, is a “right of custody” for purposes of the Hague Convention governing international child abduction.  In addition to our co-counsel, Adair Dyer, team members included Stanford law students JP Schnapper-Casteras and David Schwartz.  The Permanent Bureau of the Hague Conference on Private International Law – which is responsible for monitoring the implementation of the Convention – filed an amicus brief supporting our petition.  The respondent in the case is represented by Stephen Kinnaird of Paul Hastings; her brief in opposition is available here.  The cert. petition is here.

The second case argued on December 10, 2008, AT&T v. Hulteen, stemmed from a decision out of the Ninth Circuit in favor of Noreen Hulteen and three other women who were denied full service credit for pregnancy leaves taken from AT&T between 1968 and 1976.  When the company calculated their pension benefits decades later, the women and the union who represent them sued under the Pregnancy Discrimination Act (PDA). 

Arguing on behalf of petitioner, Carter Phillips tried to persuade the justices that while the women’s claims were actionable when the credit was originally denied, any claim was now stale.  To require AT&T to credit the women, decades later, for their absences would upset the “competitive seniority” amongst employees.  Justice Ginsburg seemed unconvinced, suggesting that absent a felt application of their loss in seniority, there was “nothing to be done” in the time immediately following the leave.  Mr. Phillips emphasized that both Congress and the Supreme Court’s prior decisions have “consistently recognized” the rights of all members of the plan.  Phillips faced questions from Justices Ginsburg, Breyer, and Souter when he rejected respondents’ merits briefing classification of the benefits plan as facially discriminatory.  Since AT&T immediately changed its plan after the PDA was passed to henceforth credit pregnancy leaves like other temporary disability leaves, he argued that the plan must be in complete compliance and cannot be facially discriminatory.  Read the rest of this entry »

U.S. District Judge Richard J. Leon ruled on Tuesday that two Guantanam Bay detainees — nationals of Yemen and Tunisia — must remain prisoners of the U.S. military, finding that the government has proved that each is an “enemy combatant.”  In the most significant of the two separate rulings, the judge concluded that the government does not have to prove that a detainee uses arms against U.S. forces or against forces of its coalition partners, in order to fit the judge’s definition of an enemy associated with Al Qaeda or Taliban.

The ruling against the Yemeni captive, Moath Hamza Ahmed Al Alwi, can be found here.  The ruling against the Tunisian prisoner, Hisham Sliti, can be found here.

In both cases, Judge Leon appeared to have relied quite heavily on secret evidence provided by the government and discussed by the judge in separate classified versions of his Tuesday rulings. The judge found that the government had proved to him that the two individuals had traveled to Afghanistan to fight with Taliban forces or to carry on activities, including military training, with Al Qaeda associates or Taliban forces.

It was in Al Alwi’s case that Judge Leon made his ruling that the government need not prove that a detainee actually used arms against U.S. or coalition forces in order to be classified as an “enemy combatant” — the designation that determines the government’s continued authority to prolong detention at Guantanamo Bay.

Al Alwi, the judge ruled, had “close ties to Taliban and al Qaeda forces” before the U.S. attacked Afghanistan following the Sept. 11, 2001, terrorist attacks on the U.,S., and continued to serve with a Taliban unit after the U.S. began bombing targets in Afghanistan in October 2001.

The judge specifically declined to rule on government claims that Al Alwi had served as a bodyguard for Al Qaeda leader Usama Bin Laden, or that he had received military training at a camp closely tied to Al Qaeda.  Both of those accusations, the judge said, were based on statements the government obtained from other, unnamed detainees at Guantanamo.  The judge said he need not try to assess the reliability of these statements, because the government’s other evidence against Al Alwi had “considerable weight.”

Judge Leon, who has been moving more rapidly than his District Court colleagues in holding full trials of detainee habeas cases on his calendar, has now ruled on the fate of eight detainees.  He has ordered the release of five, and approved the continued detention of three.  Lawyers for an Algerian native against whom Leon had ruled in November — Belkacem Bensayah — on Tuesday formally notified the judge that they are appealing his decision to the D.C. Circuit Court.

Another judge has ordered the release of 13 detainees, but the government no longer contends that they are enemies.  Their fate, however, now awaits a ruling by the D.C. Circuit Court on an appeal by the government.

Setting the stage for an appeal to the Supreme Court, the Fourth Circuit Court on Monday refused to delay the corruption trial of Rep. William J. Jefferson, a nine-term Democratic member of the House who lost his seat this year.  His lawyers sought a 90-day delay so they could pursue a petition to the Supreme Court that will seek to test a grand jury’s power to examine evidence about a member of Congress’ slegislative activity as the jurors weigh possible criminal charges.

Jefferson has 90 days from Dec. 12 — when an en banc rehearing request was denied by the Circuit Court — to ask the Supreme Court to hear his case.  Federal prosecutors have indicated they are eager to get the trial started, since the indictment against Jefferson came down more than 18 months ago.  Prosecutors argued to the Circuit Court that the congressman “has had a full and fair opportunity” to test in court his claim that his constitutional right not to be questioned elsewhere about legislative activity was violated — a “Speech or Debate Clause” challenge.

If the congressman’s lawyers do not seek and obtain a delay from the Supreme Court, his trial in a federal court in Virginia might start before the Supreme Court could act on his case.

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