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UPDATE: New look at detainee case

UPDATE 1:55 p.m.  The Court will again consider the case of Kiyemba v. Obama (08-1234) at its next scheduled private Conference, this Friday, according to the Court’s electronic docket.


 The Supreme Court opened its new Term Monday morning, and issued a lengthy list of new orders.  The closely-watched case on the rights of detainees at Guantanamo Bay, Cuba — Kiyemba v. Obama (08-1234) — was not on the list, however.  The Court invited the U.S. Solicitor General to offer the government’s views on four new cases, and invited Texas’ Solicitor General to provide the state’s views on another.  No new cases were granted review; the Court had agreed last Wednesday, before the Term opened, to grant ten cases.

The cases in which the government’s reaction was invited includes a major case testing the power of state and local governments to require employers to provide minimum spending to cover their workers’ health care needs — so-called “fair share” or “pay-or-play” laws.  The case, Golden Gate Restaurant Association v. San Francisco (08-1515), conceivably could be influenced by what happens in Congress this year on health care reform.  The other three cases the S.G. will analyze are Williamson v. Mazda Motor (08-1314), testing the right to sue auto makers over allegedly faulty seatbelts when a federal rule exists on such installations; Costco Wholesale v. Omega (08-1423), involving the scope of the “first-sale doctrine” in copyright law, as it applies to goods made and sold overseas and then brought into the U.S., and Missouri Gas Energy v. Schmidt (08-1458), testing state power to tax natural gas temporarily stored in an interstate pipeline system.  (The Missouri Gas Energy petition was filed by a former nominee for the Supreme Court, ex-White House Counsel Harriet E. Miers, now a private attorney in Washington, D.C.)

The state of Texas’ views were invited in Rhine v. Deaton (08-1596), on the constitutionality of a state’s refusal to provide a court-appointed lawyer to a parent in a case involving potential termination of parental rights.

The Kiyemba case on Guantanamo detainees’ rights involves the basic issue of whether federal judges have any authority to order the actual release from that U.S. military prison. None of the Uighurs is considered any longer to be an enemy of the U.S.   The specific transfer question in that case focused on moving Chinese Muslim Uighurs to live in the U.S., at least temporarily.  The underlying judicial power issue, however, is broader than that, and could test whether judges can only invite the government — without compulsion — to resettle a detainee not considered a threat to national security.  The Court has held over the case from the prior Term, but there is no word on when it will act upon it.

A number of significant new cases were denied review. Among them was an appeal by the U.S. Interior Department, seeking to challenge a federal appeals court ruling that was said to risk a loss to the Treasury of nearly $19 billion in oil and gas royalty payments on drilling in the Gulf of Mexico.  The Court, as usual, did not explain its denial in U.S. v. Department of Interior v. Kerr-McGee Oil and Gas Corp. (09-54).

Other issues turned aside included these:

* An appeal by Joseph P. Nacchio, former chief executive of Qwest Communications, challenging his criminal conviction on charges of “insider trading.”  The case sought to test the application of the “insider trading” ban to purchase or sale of company stock after an executive was told by an associate that the firm might not reach its future growth or revenue targets (Nacchio v. U.S., 08-1172).

* An attempt to draw the Court into the intense controversy over ownership of church property when a local church breaks away from a national church in a doctrinal dispute — in this case, the dispute over ordination of gay bishops.  The denial came in Rector of St. James Parish, et al., v. Los Angeles Episcopal Diocese (08-1579).

* A test of the constitutionality of the death penalty procedures in the state of Louisiana (Holmes v. Louisiana, 08-1358).

* A plea for the Court to further clarify when public school officials, fearing disruption of school life, may impose a ban on displays of the Confederate flag or other symbols that they fear will arouse students (Barr v. Lafon, 08-1325).

* In another public school case, a test of the constitutionality of requiring a student to get a parent’s permission before the student may refuse, as a matter of principle, to salute the American flag during school ceremonies (Frazier v. Smith, 08-1351).

* A First Amendment test of the firing of a public employee merely because he or she announced a candidacy for elected office, where laws allow such a candidacy.  The case of Greenwell v. Parsley, 08-1328, involved a deputy sheriff fired after announcing.he would run for his boss’s job.

* A new test of the right of motorists to put a specific inscription or message on their auto or truck license plate — in this case, the “Choose Life” message favored by those who opposed abortion (Choose Life Illiinois v. White, 08-1283.) The Court has refused repeatedly to rule on the issue.

* The constitutionality of a jury verdict of guilt in a criminal case when the jurors did not support the result unanimously (Bowen v. Oregon, 08-1117) — another issue the Court has previously refused to hear.

* The constitutionality of a 1988 law making it a crime to publish sexually explicit material for adult readers if the publisher or distributor do not get verified age information from each performer (Connection Distributing Co. v. Holder, 08-1449).