The Grants That Got Away
on Jul 14, 2008 at 1:00 pm
In the recently concluded Supreme Court term, the Justices heard oral argument in 70 cases, the fewest in more than half a century. On this blog and elsewhere, journalists and commentators have floated numerous explanations for the Courtâ€™s steadily declining docket, from clerksâ€™ reluctance to recommend grants, to fewer cases meeting the Justiceâ€™s criteria, to even the rise of a more specialized Supreme Court bar. Chief Justice Roberts has also tied the decrease to less activity in Congress and the lower courts.
Whatever reason lies behind the number of grants, Court-watchers have nonetheless remained befuddled over which cases the Justices have decided to add â€“ or, more precisely, not to add â€“ to the docket. The wonder extends to us here at SCOTUSblog, where we review the question presented in all paid cases and over the previous term flagged nearly 300 petitions as having at least a reasonable chance of being granted.Â The list below presents the authorâ€™s own compilation — in no particular order –Â of the most interesting and important petitions the Justices declined to grant during the previous term.
While the Courtâ€™s Boumediene decision was arguably the most significant of the term, the Court also passed over two major post-September 11 cases involving an increasingly litigated issue: the scope of the â€œstate secretsâ€ privilege, an evidentiary doctrine the Court established in 1953 to protect from discovery materials whose very disclosure could threaten national security. In El-Masri v. United States (06-1613) (filings available here), the Court declined to consider a suit by a German citizen mistakenly abducted by
Four months later, in ACLU v. National Security Agency (07-468) (filings available here), the Court declined to revive a challenge to the National Security Agencyâ€™s warrantless wiretapping program. Â The plaintiffs â€“ a group of scholars, journalists and attorneys â€“ filed suit shortly after the New York Times disclosed the programâ€™s existence in late 2005, arguing the threat of surveillance chilled their communications with clients and sources overseas. Invoking the state secrets doctrine, the federal government argued that even revealing whether the plaintiffsâ€™ conversations had been monitored could harm national security. A district judge found for the plaints, but a split Sixth Circuit panel reversed. The petition, originally considered at the Justicesâ€™ January 18 conference, was denied February 15.
The Justices also denied certiorari in three intriguing separation of powers cases.Â In one case widely seen as destined for the Supreme Court â€“ United States v. Rayburn House Office Building, Room 2113 (07-816) (filings available here) â€“ the Justices declined to enter a dispute involving the first ever executive raid of an office of a sitting member of Congress. As part of an ongoing corruption probe, FBI agents had discovered $90,000 in cash in a freezer at the Capitol Hill home of Rep. William Jefferson (D-La.). A year later, after receiving a tip from one of the Congressmanâ€™s aides, agents obtained a search warrant for his legislative office as well. To avoid separation of powers concerns, the warrant required a â€œfilter teamâ€ of separate agents to screen all materials for legislatively privileged documents. But a D.C. Circuit panel held that under the Constitutionâ€™s â€œSpeech and Debate Clause,â€ Rep. Jefferson should have received an opportunity to review the materials before, not after, their seizure by the Executive. The governmentâ€™s petition argued the clause was designed to shield members of Congress from liability for legislative acts, not criminal investigations, and as a practical matter would impair corruption probes.Â The petition was denied March 31.
In another watched separation of powers case â€“ Defenders of Wildlife v. Chertoff (07-1180) â€“ the Court declined to consider whether a provision of federal immigration law unconstitutionally delegated too much authority to the Executive Branch by authorizing the Department of Homeland Security to waive any environmental laws necessary to facilitate construction of fences along the
In a less widely followed case â€“ Â Public Citizen v. U.S. District Court for the District of Columbia (07-141) (filings available here) â€“ the Court evaded a question over the most basic of constitutional provisions: the bicameralism requirement. As taught in grade schools around the country, all laws must pass both Houses of Congress and receive the Presidentâ€™s signature.Â Due to a clerkâ€™s error, however, the House of Representatives never passed the exact version of the Deficit Reduction Act of 2005 that was presented to President Bush.Â (The signed version limited Medicare wheelchair coverage to 13 months, while the House version permitted coverage for 36 months.)Â Both the district court and D.C. Circuit dismissed the suit, relying on an 1892 Supreme Court case that effectively required lower courts to presume all bills signed by the President properly passed both houses of Congress.Â The petition said the ruling left the bicameralism requirement advisory and enforceable, while the government maintained any other rule would render every federal law vulnerable to challenge over the smallest of typos. The petition was denied December 10.
The Court likewise side-stepped an intriguing First Amendment question in the first suit between fellow members of Congress. The case â€“ McDermott v. Boehner (07-439) (filings available here) â€“ involved an embarrassing phone conversation in 1996 between then-House Speaker Newt Gingrich and fellow Republic leaders. A
In a term involving no major religion cases, the Court passed over a First Amendment challenge â€“ Teen Ranch, Inc. v. Udow (07-362) (filings available here) â€“ to a Michigan policy that barred the placement of troubled teens with faith-based facilities.Â The petitioner, Teen Ranch, refused to discontinue its religious activities but guaranteed all children placed at the center could opt out of any activities they wished. Both the trial and appellate courts found children placed at Teen Ranch would not receive â€œtrue private choiceâ€ in whether to participate in religious activities.Â The petition said the rulings incorrectly applied the Courtâ€™s 2004 decision in Locke v. Davey, which held states providing scholarships for secular colleges need not also provide aid for religious institutions. The petition was denied November 26.
With no abortion or gay rights cases on its docket, the Justices passed up an opportunity to further explore its jurisprudence of â€œsubstantive due processâ€ â€“ the constitutional theory the Court has used to protect rights not specifically mentioned in the Constitution. In January, it declined to hear a long-running case â€“ Abigail Alliance for Better Access to Developmental Drugs, et al. v. Eschenbach (07-444) (filings available here) â€“ on whether terminally ill patients possess a constitutional right to buy potentially life-saving drugs that had passed the initial phase of FDA testing and that pharmaceutical companies were willing to provide.Â A split panel of the D.C. Circuit originally sided with the patients, but the full court overturned the decision en banc.Â Calling self-preservation â€œthe first and most self-evident of the natural rights of man,â€ the petition argued that if the Court recognized an individual right to refuse medical treatment, it should also allow patients to assume some risks in hopes of continuing their lives. The petition was denied January 14.
In another due process challenge, Dupuy v. McEwan (07-1075) (filings available here), the Court stayed out of a Â class-action filed by Illinois parents over procedures state investigators followed after receiving allegations of child abuse over a telephone hotline. According to the suit, state officials required numerous plaintiffs to leave their homes until the investigations had concluded, a process that often took months, or threatened to take custody of their child. The Seventh Circuit dismissed the case after finding all parents had voluntarily signed the â€œsafety plansâ€ in question. Coincidentally, the Supreme Court considered the petition two weeks after a separate case in which the Texas Supreme Court ordered more than 400 children removed from a Fundamentalist Church of Jesus Christ of Latter-day Saints compound in
For the term beginning next October, the Court has already granted certiorari in four Fourth Amendment cases.Â This past term, though, it passed up a major California case â€“ Sanchez v. San Diego County (07-211) (filings available here) â€“ testing whether municipalities could require home searches as a condition of welfare eligibility. Under the policy in question, investigators hired by the District Attorneyâ€™s office conduct a â€œwalk throughâ€ of all applicantsâ€™ homes to determine, among other things, whether they had the amount of assets claimed and eligible dependent children. Investigators also were required to report evidence of potential criminal wrongdoing. A divided Ninth Circuit panel upheld the requirement, and eight judges denied for a denial of rehearing en banc. The petition was denied November 26.
The 2007 term also saw the Court decline to revisit a previous controversial ruling over property rights. Goldstein v. Pataki (07-1247) (filings available here) would have tested the scope of the Courtâ€™s 2005 ruling in Kelo v. City of New London, the widely criticized decision that authorized the taking of private homes for development plan intended to economically rejuvenate the surrounding area. The petitioners, residents of
Perhaps the most noteworthy petition left off the Courtâ€™s docket resulted not from a denial of certiorari, but because financial and family ties prevented the Justices from reaching a quorum to vote. The suit in American Isuzu Motors, Inc., et al. v. Ntsebeza, et al. (07-919) (filings available here) involved claims against more than 50 multinational corporations for alleged complicity in the racist policies of
At its final conference of the year, the Justices for the only time all term declined to add to its docket a case in which the Solicitor General had recommended the Court grant certiorari. The question in Amschwand v. Spherion Corp. (07-841) (filings available here) involved the type of relief available under ERISA to insurance plan beneficiaries harmed by breaches of fiduciary duty. After her husband died of heart cancer, the plaintiff in the case sought to collect more than $400,000 in benefits from the life insurance policy her husband had purchased through his employer years before. The carrier denied the claim, however, under a technicality the employer forgot to disclose to the husband that could have been easily remedied while he was alive.Â The widow sued under an ERISA provision entitling plaintiffs to â€œappropriate equitable relief.â€Â According to the lower courts, Supreme Court precedent only required the employer to compensate the widow for the cost of the premiums her husband had paid, not the benefits she would have otherwise received.Â The Court had previously granted certiorari on the same question in LaRue v. DeWolff, Boberg (06-856), but resolved the case on other grounds. In a brief expressing thinly veiled displeasure with the rulings below, the Solicitor General recommend the Court grant certiorari to answer the question.Â Apparently unmoved, the Justices denied the petition at their final conference on June 26.