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Court grants 3 cases, turns aside detainee plea

The Supreme Court agreed on Monday to clarify when federal courts are barred from ruling on challenges to state tax laws. This was one of three business-related cases the Justices added to their docket for rulings this Term.  In another order, the Court refused to allow a Guantanamo detainee to bring his plea for release to the Court without waiting for a ruling on it in a lower court; that action appears to leave the prisoner in a new legal limbo, since the lower court has put his case on hold for the next several months.

The Court, over the protests of two Justices, refused to answer a question sent to it by a federal appeals court, seeking clarification on when the federal government may prosecute a series of old civil rights crimes in the South, dating from the 1960s, even though four decades have now passed.  The case is a notorious one, involving the kidnapping and drowning murder of three young black youths in Meadville, Miss., in the spring of 1964.  Justice John Paul Stevens, joined by Justice Antonin Scalia, said the Court should have taken on the issue, noting that it is rare for a lower court even to ask for such clarification and suggesting that this was an appropriate case for the Justices to make use of that unusual procedure.  The case was U.S. v. Seale (certified question, docket 09-166).

The Court also asked for the U.S. Solicitor General to provide the views of the federal government on four new cases. When the responses come in, the Court will then decide whether to hear any of those cases — including a major test case on the power of states to pass their own laws to bar illegal aliens from getting jobs in those states.

The tax case the Court will hear — Levin v. Commerce Energy, Inc., et al. (09-223) — is a test of whether the federal Tax Injunction Act and the separate concept of “comity” out of respect for state governments permit lawsuits in federal court that arguably would intrude on state tax systems.  The specific question is whether a state taxpayer may sue the state in a U.S. court if the taxpayer seeks to contest the fairness of tax breaks that others get but the challenger does not.

In one of the other newly granted cases — New Process Steel v. National Labor Relations Board (08-1457) — the Court will decide whether it is illegal for the NLRB to make decisions with only two of its allotted five members partipating.  The third new case is Hamilton v. Lanning (08-998), a bankruptcy case in which the Court may clarify the formula that bankruptcy courts are to use in deciding how much a debtor, filing under Chapter 13 to set up a repayment plan without losing property, has available to pay creditors who hold no security. The Court rewrote the question it will decide. (Disclosure: The law firm of Akin Gump represents the debtor in the case, Stephanie Lanning of Topeka, Kan.) The Court previously had asked for the views of the Solicitor General, who urged the Court to hear the case to resolve conflicting rulings among lower courts.

The Guantanamo case that the Court chose to pass up involves a Yemeni national, Yasin Muhammed Basardh, who won a court order for his release more than seven months ago, but remains confined at the U.S. military prison in Cuba (Basardh v. Gates, et al., 08-10982).  The release order is being challenged by the Obama Administration in the D.C. Circuit Court, but Basardh’s lawyers asked the Justices to hear the case in advance of any ruling in the lower court.  The Justices declined to do so without giving any explanation — the usual procedure when review is denied.  In the Circuit Court, Basardh’s case is being held in abeyance until the Supreme Court rules on another case, already granted, on federal judges’ power to order releases from Guantanamo (Kiyemba, et al., v. Obama, et al., 08-1234).  That case is likely to be argued in February or March.

The illegal alien worker case on which the Justices solicited the federal government’s views is U.S. Chamber of Commerce, et al. v. Candelaria, et al. (09-115).  That petition tests an Arizona law that imposes severe penalties on employers for hiring non-citizens who do not have a legal right to be in the U.S.  Business groups contend that such state laws, growing in number, intrude on the federal government’s power to set immigration policy.

In two cases that will go to the Solicitor General for a reaction, Sossamon v. Texas, et al. (08-1438) and Cardinal v. Metrish (09-109), the Court is being asked to decide whether state governments and state agency officials are immune to money damages under federal law if they violate the religious freedom of prison inmates (the law is the Religious Land Use and Institutionalized Persons Act, passed in 2000).   The cases could pose a major test of Congress’s use of its powers under the Constitution’s Spending Clause to protect the rights of individuals, without intruding on state sovereignty.  (Disclosure: the law firm of Howe & Russell represents the two prison inmates involved in the cases — Harvey Leroy Sossamon III, in Texas and Gerald William Cardinal, in Michigan.)

The Court, with two Justices not participating, also asked the Solicitor General to express views on Pfizer Inc. v. Abdullahi, et al. (09-54), a case that asks the Court to clarify how a 1789 law applies to a U.S. company doing business abroad, when it is sued in U.S. courts for wrongs done in another country.  Pfizer, the largest drug manufacturer, is seeking to head off two lawsuits for damages that claim it harmed scores of children in Nigeria when it gave them an antibiotic drug that had not been approved for children.  Chief Justice John G. Roberts, Jr., took no part in the order, perhaps because he owns Pfizer stock.  Justice Sonia Sotomayor also took no part, apparently because she was on the Second Circuit Court when it denied en banc review of the case. 

There is no timetable for the Solicitor General to respond on any of the four cases, although SG Elena Kagan lately has been filing quite prompt responses to such invitations.