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The Grants That Got Away

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 Court’s steadily declining docket, from clerks’ reluctance to recommend grants, to fewer cases meeting the Justice’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 – or, more precisely, not to add – 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.  The list below presents the author’s own compilation — in no particular order –  of the most interesting and important petitions the Justices declined to grant during the previous term.

While the Court’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 “state secrets” 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 U.S. intelligence officials and held for months at an Afghani prison. Following his release, El-Masri brought suit against former CIA Director George Tenet, three aviations companies, and numerous unnamed intelligence agents involved in his abduction. Citing the state secrets privilege, a Fourth Circuit panel upheld the outright dismissal of the suit, finding that litigating the case would require disclosure of details about the government’s “extraordinary rendition” program. El-Masri’s petition argued the privilege had “become unmoored from its evidentiary origins” and been transformed into an “immunity doctrine.” The government countered there was no point proceeding to discovery in cases that could not be resolved without the use of state secrets. The petition was denied October 9.

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 Agency’s warrantless wiretapping program.  The plaintiffs – a group of scholars, journalists and attorneys – filed suit shortly after the New York Times disclosed the program’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 plaintiffs’ 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 Justices’ January 18 conference, was denied February 15.

The Justices also denied certiorari in three intriguing separation of powers cases.  In one case widely seen as destined for the Supreme Court – United States v. Rayburn House Office Building, Room 2113 (07-816) (filings available here) – 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 Congressman’s aides, agents obtained a search warrant for his legislative office as well. To avoid separation of powers concerns, the warrant required a “filter team” of separate agents to screen all materials for legislatively privileged documents. But a D.C. Circuit panel held that under the Constitution’s “Speech and Debate Clause,” Rep. Jefferson should have received an opportunity to review the materials before, not after, their seizure by the Executive. The government’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.  The petition was denied March 31.

In another watched separation of powers case – Defenders of Wildlife v. Chertoff (07-1180) – 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 U.S. border. The plaintiffs, two environmental groups, argued the law’s validity was further undermined by a separate provision barring all but constitutional challenges to the law and prohibiting circuit courts from hearing appeals. Rejecting the challenge, a district court reasoned the waiver provision was neither equivalent to the line-item veto struck down in Clinton v. New York (1998) nor failed to establish intelligible guidelines as to when the agency could invoke the waiver. In accordance with the law, the environmental groups filed a direct appeal to the Supreme Court. The petition was denied June 23.

In a less widely followed case –  Public Citizen v. U.S. District Court for the District of Columbia (07-141) (filings available here) – 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 President’s signature.  Due to a clerk’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.  (The signed version limited Medicare wheelchair coverage to 13 months, while the House version permitted coverage for 36 months.)  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.  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 – McDermott v. Boehner (07-439) (filings available here) – involved an embarrassing phone conversation in 1996 between then-House Speaker Newt Gingrich and fellow Republic leaders. A Florida couple heard the call over a police scanner and traveled to Washington to present a tape to Rep. Jim McDermott (D-Wash.), then the highest-ranking Democrat on the House ethics committee. McDermott played the tape for reporters from the New York Times and Atlanta Journal-Constitution, prompting Rep. John Boehner (R-Ohio) – who took part in the original conversation, and now serves as the House Minority Leader – to seek damages under federal wiretapping laws for disclosing an illegally recorded conversation. The trial court imposed $60,000 in damages plus attorneys fees now approaching $1 million.  On appeal, a split en banc panel of the D.C. Circuit found the First Amendment did not protect Rep. McDermott from suit, regardless of the public importance of the tape. The petition argued the ruling so blatantly disregarded one of the Court’s prior cases – Bartnicki v. Vopper (2001) – as to threaten “the hierarchy of the federal court system.” The petition was denied December 3.

In a term involving no major religion cases, the Court passed over a First Amendment challenge – Teen Ranch, Inc. v. Udow (07-362) (filings available here) – to a Michigan policy that barred the placement of troubled teens with faith-based facilities.  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 “true private choice” in whether to participate in religious activities.  The petition said the rulings incorrectly applied the Court’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 “substantive due process” – 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 – Abigail Alliance for Better Access to Developmental Drugs, et al. v. Eschenbach (07-444) (filings available here) – 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.  A split panel of the D.C. Circuit originally sided with the patients, but the full court overturned the decision en banc.  Calling self-preservation “the first and most self-evident of the natural rights of man,” 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  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 “safety plans” 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 West Texas be returned to their parents.  The petition was denied June 12.

For the term beginning next October, the Court has already granted certiorari in four Fourth Amendment cases.  This past term, though, it passed up a major California case – Sanchez v. San Diego County (07-211) (filings available here) – testing whether municipalities could require home searches as a condition of welfare eligibility. Under the policy in question, investigators hired by the District Attorney’s office conduct a “walk through” of all applicants’ 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 Court’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 Brooklyn, New York, challenged the taking of large swaths of private property for a 22-acre site slated to house office buildings, apartment towers, and a basketball arena to attract the New Jersey Nets. Alleging top state officials conspired with the private developer to condemn otherwise prosperous neighborhoods, the petitioners claimed the hailed public benefits were a mere “pretext” for the land transfer. Opposing certiorari, state officials claimed the area had been earmarked for redevelopment for decades, and that the project would provide more affordable housing, open public spaces and mass transportation improvements. The petition, originally considered at the June 12 conference, was denied June 23. (Justice Alito would have granted the petition.)

Perhaps the most noteworthy petition left off the Court’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 South Africa’s former apartheid regime. Overruling a district court, the Second Circuit found the suit could proceed under the Alien Tort Statute on grounds the companies had “aided and abetted” violations of international law. It also remanded the case to determine whether it should be dismissed out of deference to U.S. and South African foreign policy concerns. Many viewed the case as an all but certain grant, but at conference the Court lacked the six Justices needed for a quorum. The Chief Justice and Justices Breyer and Alito took no part due to presumed financial conflicts, while Justice Kennedy recused himself, it is believed, due to his son’s employment by one of the defendants. The judgment was thus affirmed on May 12.

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.  The widow sued under an ERISA provision entitling plaintiffs to “appropriate equitable relief.”  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.  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.  Apparently unmoved, the Justices denied the petition at their final conference on June 26.