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Stem cell dispute near end? (FINAL UPDATE)

Final update 1:42 pm: An additional denial order is discussed in the final paragraph.


The Supreme Court, in an action that may bring to an end a lingering dispute over research on embryonic stem cells, on Monday turned down an appeal by two scientists seeking to stop all such studies.   The denial came as the Court returned from holiday recess.  It took no action on the Texas redistricting case.  It asked for the views of the federal government on three new cases.  No cases were granted beyond the three that had been accepted Friday. The order list is here.

In a significant staffing matter, the Court announced that its Clerk, William K. Suter, will retire at the end of the current Term after serving in that post for twenty-two years.   A press release can be read here.

The Court invited the U.S. Solicitor General to offer the views of the federal government on Air Wisconsin Airlines v. Hoeper (docket 11-315), Michigan Department of Licensing v. Gerstenschlager (12-379), and Michigan v. Bay Mills Indian Community (12-515).  There is no time limit for the government to respond.  After the federal views are expressed, the Justices will decide whether to hear any of the three cases.  The Air Wisconsin case involves the scope of legal immunity that airlines have when they report potential airline safety threats.   The Michigan Licensing case seeks an interpretation of a training issue under the Trade Act of 1974.   The Bay Mills case tests whether an Indian tribe has legal immunity to a lawsuit claiming it violated federal gaming law by operating a casino outside of Indian lands.

The controversy over research on stem cells derived from embryo tissue has been back and forth between lower courts, and reached the Justices in a petition by scientists James L. Sherley and Theresa Deisher, who have argued over the past three years that Congress has totally forbidden any research, even on existing cell lines based upon embryonic tissue.  The Obama Administration authorized somewhat expanded research, but confined to existing cell lines that had been developed from embyronic tissue in in vitro fertilization efforts.

Every year since 1996, Congress has enacted a flat ban on using federal funds either to create a new human embryo or to do research in which an embryo is destroyed, discarded, or injured.  The Obama Administration has taken the view that the ban does not apply to already-existing cell lines, which involve no new destruction of embryos.  That view has been upheld twice by the D.C. Circuit Court.  In a petition to the Supreme Court, researchers Sherley and Deisher argued that federal officials in adopting research guidelines in 2009 to implement President Obama’s Executive Order failed to respond in any way to their comments that federal law barred all such research.  Without such a response, they contended, the resulting guidelines are illegal.  The Court made no comment Monday in denying review of Sherley v. Sebelius (12-454).

The Court’s actions on Monday followed its private Conference last Friday, the first of the New Year.   Among many cases considered at that session, the Justices pondered a request from the state of Texas to grant speedy review of the state’s appeal seeking to revive its post-2010 redistricting plans for both houses of its state legislature and for its thirty-six-member delegation in the U.S. House of Representatives.   A three-judge district court had refused to clear any one of the new election maps, finding that the state had not shown that they did not result in discrimination against Hispanic or black voters in Texas.   Texas had asked the Court to accept the case for review during the current Term.

Although there was no action on the appeal noted on the Monday morning order list, the case presumably could be rescheduled for consideration at this week’s Conference on Friday.  The Texas appeal is docketed at 12-496. (UPDATE: The case is not being relisted for the Friday Conference, according to the Court docket.)

In another significant denial, the Court passed up a significant opportunity to consider limiting the power of the executive branch under the Court’s 2008 decision in Munaf v. Geren — a case decided on the same day that the Court, in the case of Boumediene v. Bush, had given Guantanamo Bay detainees a constitutional right to challenge their confinement.   Since then, the D.C. Circuit Court has interpreted the Munaf decision to mean that federal courts have only limited power to review executive decisions to transfer individuals out of U.S. custody to foreign lands.  On Monday, the Court denied review of a case involving the extradition of a Philippine national, who had argued that the Ninth Circuit Court had used the Munaf decision to virtually scuttle judicial review of extradition decisions made by the U.S. Secretary of State.

In denying review in Trinidad y Garcia v. Thomas (12-6615), the Court noted that Justice Elena Kagan had taken no part in the action.  There was no explanation, but the reason may be that she had something to do with the extradition case when she was U.S. Solicitor General at the Justice Department.  Although three of the Justices previously had said that the Court at some point should examine the Munaf precedent, there was no indication Monday that any of them had voted to grant the new extradition case.  It would have taken the votes of four Justices to grant review.   Had the Court accepted the case, there would have been a possibility that the case could have ended in a four-to-four tie, which would have settled no legal issue definitively.  That prospect conceivably could have influenced the Justices’ reaction to the Trinidad y Garcia petition.

Another order on Monday denying review appeared to have brought a close to a long-running fight over the Second Amendment in Alameda County, California, Nordyke v. King (12-275).  In that case, a couple who had run a gun show on the county fairgrounds had waged a fight for Second Amendment rights, and the Ninth Circuit used the case — before the Supreme Court itself did so — to expand Second Amendment rights to include an individual right to a gun, and to extend that right to state and local government levels.   In the latest turn in the case, the county government in Alameda County interpreted its gun safety ordinance to allow gun shows, and that appeared to end the controversy that had continued for thirteen years.   As the case reached the Supreme Court, Russell and Sallie Nordyke were seeking only to recover their attorney’s fees, contending that they had ultimately won the case when the county gave in on gun shows.  The Justices gave no reason for denying review.

UPDATE: The Court continued to avoid cases that seek to test the constitutionality of the Federal Election Commission rules that require public disclosure of the financial activities of so-called “political action committees.”  The Justices have regularly turned aside attempts to test FEC disclosure rules on the theory that they are too vague and thus infringe on free-speech rights.   In the latest case, the Court turned aside without comment a petition by a Virginia-based group that originally was set up to challenge Barack Obama when he was a presidential candidate in 2008.  The case was titled The Real Truth About Abortion, Inc., v. FEC (12-311).  The group originally used the title, The Real Truth About Obama.

Recommended Citation: Lyle Denniston, Stem cell dispute near end? (FINAL UPDATE), SCOTUSblog (Jan. 7, 2013, 9:34 AM),