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Asian carp plea denied; no new grants

FURTHER UPDATE: New material added at 11:59 a.m.  (See Erin’s post below for documents.)

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.  Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.  The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in cases 1, 2 and 3 Original, Wisconsin, Michigan and New York v. Illinois.

The Court did not grant review in any cases, beyond the five it accepted for review last Friday.

The Court ruled that it had no jurisdiction, at this point, to review a lower federal court’s order that would require the state of California to release upwards of 40,000 inmates from its state prisons to ease overcrowding that the lower court blamed for inadequate medical care in the 33 prisons.  The Court noted, in a brief order, that a new order has been issued in the case, “but that order is not the subject” of the present challenge.  It also took note of the fact that the latest lower court order has been blocked pending “review by this Court” — an indication that the Court expects the state to file a fresh new appeal to challenge the order now in effect, issued earlier this month. Lawyers for state officials have said they would promptly file a new appeal. (The cases are Schwarzenegger v. Plata, 09-416, and California Republican Legislators v. Plata, 09-553).

In an important case on states’ legal immunity under the Constitution’s Eleventh Amendment, the Court asked the U.S. Solicitor General for the government’s views on whether it is unconstitutional for a state agency to sue in federal court to enforce federal rights, when the lawsuit is aimed at officials of the same state.  The case is Virginia Office for Protection and Advocacy v. Reinhard (09-529).  The Fourth Circuit Court ruled that the lawsuit, seeking to enforce rights of mentally ill patients and developmentally disabled individuals in state institutions, was forbidden under the Eleventh Amendment.  The key issue in the case is whether such a lawsuit may be pursued under an exception to Eleventh Amendment immunity that the Supreme Court created in a 1908 ruling, Ex parte Young.

The Court ordered the Third Circuit Court to reconsider reinstating the death penalty for Mumia Abu-Jamal in a celebrated case of the murder of a Philadelphia police officer nearly three decades ago.  The appeal of Pennsylvania state officials in Beard v. Abu-Jamal (08-652) was returned to the Circuit Court for it to apply last week’s decision in Smith v. Spisak 08-724), clarifying the constitutional rules involving the use of verdict forms in death penalty cases and how those forms advise the jury about considering mitigating evidence.

Among the cases denied review on Tuesday was a test of public school officials’ authority to limit what parents may say or do when they are invited to take part in a classroom event.  The case involved a decision by school officials in Newtown Square, Pa., just outside Philadelphia, forbidding a pupil’s mother to read the Bible when a kindergarten class was holding an event to which parents were invited as participants.  The mother of a five-year-old boy in the class at Culbertson Elementary School chose five passages from the Bible to read during one of the self-awareness sessions of her son’s class.  The principal barred her plan; she wound up reading from a book about counting.  A federal judge rejected her constitutional challenge, and the Third Circuit Court upheld that ruling.  On Tuesday, the Court denied review without comment, in Busch v. Marple Newtown School District (09-315).

CORRECTION: This post’s original description of a “permanent injunction” in the Michigan Asian carp case was corrected to say a “preliminary injunction.”