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Court grants religious symbol case, five others

The Supreme Court, returning from a winter recess, agreed on Monday to hear a new government appeal testing Congress’ power to allow a religious display to remain on public property simply by transferring ownership to a private group or individual.  The case also raises issues about who may sue to challenge such displays.  The grant in Salazar (Interior Secretary) v. Buono (08-472) was one of six in Monday’s orders.

The release of the orders was the Court’s first action of the day. Justice Ruth Bader Ginsburg, who recently underwent surgery for treatment of pancreatic cancer, was on the bench.

Here in summary are issues in other cases that the Court agreed to hear (the cases are expected to be heard in the next Term starting in October):

** Alvarez v. Smith (08-351) — The legal standard for a court hearing to test the forfeiture of property used in a drug crime (first question presented was the only grant).

** Padilla v. Kentucky (08-651) — The duty of an attorney to advise a client facing mandatory deporation from the U.S. after pleading guilty to trafficking in marijuana.

** Union Pacific Railroad v. Brotherhood of Locomotice Engineers (08-604) — The scope of federal courts’ authority to second-guess arbitration decisions made to resolve labor disputes in the railroad and airline industries.

Smith v. Spisak (08-724) — Judges’ duty to advise jurors on whether unanimity is required in finding factors that bear upon imposing a death sentence.

** Johnson v. U.S., 08-6925) — The status of a state conviction for felony battery as a violent crime under the federal Armed Career Criminal Act.  The Court granted questions 1 and 2 in the petition, both related to that issue. The Court declined to hear a third question, asking the Court to overrule its 1998 decision in Almendarez-Torres v. U.S. — allowing a judge, rather than the jury, to rule on prior convictions as a basis for enhancing a criminal sentence.  The Court has refused several times to consider that issue, which involves the only exception to the jury role the Court mandated in Apprendi v. New Jersey (2000) and later cases.

The Court asked the U.S. Solicitor General for the federal government’s views on lawsuits seeking to hold foreign governments and foreign officials and individuals liable for providing funds to support the 9/11 terrorist attacks on the U.S. (Federal Insurance Co., et al., v. Kingdom of Arabia, et al., 08-640).

In addition, the Court sought the Solicitor General’s views on the potential liability of the National Football League and its member teams for alleged antitrust violations in the marketing of clothing and headwear decorated with team logos and trademarks (American Needle Inc. v. NFL, et al., 08-661).

Among  the cases the Court declined to hear was an appeal by the Federal Trade Commission (not supported by the Solicitor General) testing whether a company’s use of deception to gain a monopoly is a form of harm outlawed by antitrust law. The issue arose in a case involving alleged efforts to gain a monopoly by influencing the setting of a standard for memory components of computers and other electronic devices. The Court made no comment in denying review in FTC v. Rambus Inc. (08-694).

The Justices also declined to clarify when a maker of generic drugs may sue to challenge the validity of an existing patent on a brand-name drug, before that patent expires. The issue arises under the Hatch-Waxman Act of 1984 in Forest Laboratories v. Caraco Phamaceutical Laboratories (08-624).

In addition, the Court chose not to review a major test case on the federal government’s authority to regulate mercury pollution from electric power plants.  The Court had two appeals testing a D.C. Circuit Court ruling on that issue, but one of those was by the U.S. Environmental Protection Agency, and that agency asked the Court to dismiss its petition after the new Obama Administration changed policy. (That petition was dismissed on Monday.) That left on the docket a utility petition, Utility Air Regulatory Group v. New Jersey, et al. (08-352). But the Court on Monday denied that petition, without comment.

The Court took no action on the famous case of a so-called “wardrobe malfunction” — exposure of the breast of a female performer during the televised halftime show of the pro football Super Bowl game in 2004.  The case (Federal Communications Commission v. CBS Corp., et al., 08-653) apparently is being held until the Court rules on a pending case involving FCC’s power to regulate indecency utterances on radio and TV (FCC v. Fox Television, 07-582, argued Nov. 4).

Among a long list of cases that the Court refused to hear, these were the issues:

** Whether a violation of the right to confront adverse witnesses or evidence under the Sixth Amendment can ever be excused as a “harmless error” — an issue growing out of the denial of access to classified information that the government used to convict a citizen, Ahmed Omar Abu Ali, of charges of supporting Al Qaeda through terrorism activity in northern Virginia and elsewhere (Ali v. U.S., 08-464).

** Whether a limit on the free speech of public school students may be challenged by a student who simply stayed silent rather than risk punishment (Morrison v. Boyd County Board of Education, 08-701).

** Whether the sale of an item on the eBay auction site on the Internet gives courts throughout the country authority to hear a case against a seller who does not live in the state where a lawsuit is filed (Boschetto v. Hansing, et al., 09-686).

** Whether a state-created corporation, set up to perform some public duties, shares in the state’s immunity to private damage lawsuits (International Shipping Agency v. Puerto Rico Ports Authority, 08-457).