Here are the principal cases we’re watching from today’s conference. Orders will be released on Monday at 10a.m., along with opinions.
There are three principal cases:
Nos. 04-947, -1203, and 04-1236 – three petitions addressing the constitutionality of the abrogation of state sovereign immunity by Title II of the ADA in the prison setting.
No. 04-1094, Nunez v. United States – this would be the first case granted by the Court to address post-Booker/Fanfan procedural issues. The question is whether a defendant waived a claim of Booker error on appeal by not raising the question in his opening brief.
No. 04-1170, Kansas v. Marsh – the question is whether the Constitution permits the imposition of the death penalty when evidence of aggravating and mitigating circumstances is in equipoise, or whether the aggravators must outweigh the mitigating circumstances.
Here are other noteworthy petitions:
No. 04-903, SFPP v. Federal Energy Regulatory Commission (& 04-900), involves common carrier damages
No. 04-923, Mobil Oil Exploration & Producing Southeast v. United States, involves the government’s liability for interest
No. 04-944, Arbaugh v. Y&H Corp., involves the definition of an “employer” under Title VII
No. 04-995, Merck & Co., et al. v. Epps-Malloy, involves the finding of a conflict of interest under ERISA
No. 04-1034, Rapanos v. United States, involves the continuing fights over how broadly the Clean Water Act reaches to non-navigable waters
No. 04-1054, Baltimore City Department of Social Services v. Teresa B., involves the right against self-incrimination
No. 04-1144, Ayotte v. Planned Parenthood of Northern New England, is an abortion parental notification case that would add fire to any confirmation fight and that (perhaps for that reason if no other) will presumably be denied
No. 04-1171, St. Jude Medical, Inc., et al. v. Cardiac Pacemakers, Inc., et al., is one of Ted Olson’s first petitions after returning to private practice and involves the sanction for the use of fraudulent testimony
No. 04-1198, Alexander v. Oklahoma (in which we are counsel to the petitioners), raises procedural issues under the equitable tolling doctrine
No. 04-1255, Uzan v. Motorola, addresses whether a trial may proceed pending the appeal of an arbitration order
Another notable petition – No. 04-1196, Kelley v. Crosby – in which we did an amicus brief was struck from the Conference because the Court has called for the record.