The Justices are scheduled to hold a private conference this morning, orders from which are expected to be released the following Monday. If any orders are released this afternoon, we will post them promptly. To view our list of petitions to watch at today’s conference, click here.
Eleven months after the Supreme Court ruled that the Guantanamo Bay detainees “are entitled to a prompt hearing” on their challenges to captivity, a major new controversy has sprung up in lower courts, and the Obama Administration has warned that this may create “enormous complexities” that could mean up to another year of delay before some 150 cases could move ahead.
The dispute arises over running two parallel tracks of reviewing detainee cases — one by the courts, the other by an interagency task force that President Obama set up in January, two days after he took office.
In a stack of legal papers filed late Tuesday night in U.S. District Courts, the Administration’s lawyers said that the dispute threatens to disrupt the President’s plan to close the Guantanamo detention facility by next January. And, in an escalation of the legal rhetoric, the filings raised the prospect that the Administration may contest the constitutionality of a series of orders by judges that set off this new and unanticipated legal fight. The documents asked the judges to reconsider, and take a markedly different approach. Download the Task Force motion here and the Task Force memo here.
Declaring its commitment to fulfill the Supreme Court’s order last June 12 in Boumediene v. U.S. for “a prompt hearing” for detainees, the Administration said that the goal “cannot be reconciled” with new obligations that the judges have imposed on the government. It could take at least four and as much as 12 months to satisfy those obligations, it added.
Oral arguments have concluded for the term. No non-capital orders are expected, but if any orders are issued today in pending cases, we will post them promptly.
Today the Stanford Law School Supreme Court Litigation Clinic, along with Akin Gump and Howe & Russell, is filing this cert. petition in Daniels v. Washington. At issue in the case is whether the Double Jeopardy Clause prohibits retrial on a charge when the jury is instructed to begin deliberations with the most serious charge but proceed to a less serious charge if it cannot agree, and the jury finds the defendant guilty of a less serious offense without returning a verdict on the more serious one . Jeff Fisher is counsel of record and led the Stanford team with the able assistance of clinic students John Dalton, Brian Goldman, and David Owens.
Oral arguments have concluded for the term. No non-capital orders are expected, but if any orders are issued today in pending cases, we will post them promptly.
Timothy Johnson (University of Minnesota Department of Political Science), Ryan Black (Ph.D. candidate, Washington University Department of Political Science), Jerry Goldman (Northwestern University Department of Political Science), and Sarah Treul (Ph.D. candidate, University of Minnesota Department of Political Science) have posted “Inquiring Minds Want to Know: Do Justices Tip Their Hands With Questions at Oral Argument in the U.S. Supreme Court?” on SSRN, see here. This paper addresses a question that many SCOTUSblog readers are undoubtedly interested in: Can oral argument questioning predict the winners and losers in a case? Chief Justice Roberts had previously written on this question, but used a very small sample size (28) of cases from the 1980 and 2003 Terms of the Supreme Court in his study, see John G. Roberts, Jr., Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. Sup. Ct. Hist. 68, 75 (2005). This paper looks at the question more thoroughly by using data from all cases argued before the Court from the 1979 to 1995 Terms of the Supreme Court. A couple observations from Part III are interesting as a descriptive matter: first, the number of questions asked by Justices decreased around the end of the Burger Court and then steeply increased over time during the Rehnquist Court; and second, the Justices have been steadily asking more intricate and long-winded questions from the beginning of the Rehnquist Court in 1986 until the final year in which there is data (1995). But more significantly, the study indicates that when the Justices ask more questions of the petitioner’s attorney, the Court is significantly less likely to reverse the lower court decision. In other words, the petitioner is more likely to lose. This is an interesting study; well worth a read.
James Fowler (University of California-San Diego Department of Political Science) and Yonatan Lupu (University of California-San Diego Department of Political Science) have posted “The Strategic Content Model of Supreme Court Opinion Writing” on SSRN, see here. Using the strategic model of Supreme Court decisionmaking, the authors investigate how opinion content is related to various factors, including the ideology of the author of the opinion, the median of the majority coalition, case complexity (which I refer to in my own work as “multidimensionality”), and the number and type of other opinions in the case. Although there are certain aspects of the paper for which I am skeptical, the paper reports some interesting results. It finds, for instance, that the greater the number of regular concurrences and special concurrences (i.e., opinions concurring in the judgment), the greater the likelihood that the majority opinion will be well-grounded in authoritative precedent. According to the authors, this result suggests that bargaining plays an important role in opinion writing because a majority opinion author faced with divergent viewpoints and multiple separate opinions will work harder to accommodate colleagues and craft the opinion more thoroughly. Accordingly, the authors also find that the ideological variance and the median Justice in the majority coalition also have a positive and significant effect on the citation of authoritative precedent in the majority opinion. Interestingly, neither case complexity (i.e., multidimensionality) nor the ideology of the opinion author have a signficant influence on the citation of authorative precedent.
Oral arguments have concluded for the term. No non-capital orders are expected, but if any orders are issued today in pending cases, we will post them promptly.
This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on May 14. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, visit our archives on SCOTUSwiki.
Docket: 08-861
Title: Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, et al.
Issue: Whether the Sarbanes-Oxley Act is consistent with separation-of-powers principles - as the Public Company Accounting Oversight Board is overseen by the Securities and Exchange Commission, which is in turn overseen by the President - or contrary to the Appointments Clause of the Constitution, as the PCAOB members are appointed by the SEC.
Docket: 08-866
Title: Nevada v. Shawn Russell Harte
Issue: Whether an underlying felony can be used both as a theory for a felony-murder conviction and also as an aggravating circumstance allowing the jury to consider capital punishment, and if Nevada’s statutory scheme adequately narrows the class of individuals eligible for the death penalty.
Docket: 08-871
Title: Canadian Pacific Railway Company, et al. v. Tom Lundeen, et al.
Issue: Whether Congress can overturn a final federal court of appeals judgment because other claims not addressed by that judgment remain pending on remand from the initial decision and if Congress can employ a “clarification amendment” to direct a federal court to set aside prior statutory interpretation in a pending case.
Docket: 08-876
Title: Black, et al. v. United States
Issue: Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.
Docket: 08-887, 08-897
Title: San Diego County, et al. v. San Diego NORML, et al.; San Bernardino County, et al., v. California, et al.
Issue: Do California’s Compassionate Use Act and Medical Marijuana Program conflict with the Controlled Substances Act, and are they therefore barred under the doctrine of federal preemption?
Docket: 08-974
Title: Lewis, et al. v. City of Chicago
Issue: Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?
Docket: 08-992
Title: Beard v. Kindler
Issue: Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?
Docket: 08-996
Title: Buckley v. Rackard
Issue: Whether a police officer violated the Fourth Amendment by administering Taser shocks to an already handcuffed, nonviolent misdemeanor traffic arrestee and if that officer had fair notice sufficient to deprive him of qualified immunity that this act was excessive force that violated the Fourth Amendment.
Docket: 08-1032
Title: Allen v. Williams
Issue: In assessing whether a defendant was prejudiced by his counsel’s failure to present additional mitigating evidence during a capital sentencing proceeding, does a state appellate court unreasonably apply clearly established Federal law, when it emphasizes the absence of a “causal relationship” between the mitigating evidence and the underlying murder when determining the weight of the mitigating evidence?
Docket: 08-1039
Title: Steinbeck, et al. v. Penguin Group (USA) Inc., et al.
Issue: Whether the right of termination granted by Congress in the Copyright Act to authors and their families-in this case, the descendants of author John Steinbeck-and made available for exercise “notwithstanding any agreement to the contrary” can be extinguished by a copyright holder’s agreement to regrant previously transferred rights.
Docket: 08-1059
Title: Jefferson v. United States
Issue: Whether the facially valid indictment of William Jefferson, a Member of Congress from Louisiana, should be dismissed when evidence privileged under the Speech or Debate Clause was used in the grand jury to obtain the indictment.
Docket: 08-1139
Title: Action Apartment Association v. City of Santa Monica et al.
Issue: Does a Fifth Amendment takings claim based upon the “essential nexus” and “rough proportionality” tests lie against legislatively imposed exactions?
Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
Docket: 08-1185
Title: Dunphy v. United States
Issue: Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.
[Akin Gump and Howe & Russell represent the petitioner]
Oral arguments have concluded for the term. No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week.
The Justices will hold a private conference on Thursday. To view our list of petitions to watch at Thursday’s conference, click here.
The petitioner’s merits brief is due Monday in Alvarez v. Smith (08-351). No respondents’ merits briefs are due this week. Supplemental briefs in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984/07-990) are due Monday. More on the Court’s request for further briefing can be read in this post.
I apologize for the delay in posting the second part of the Supreme Court’s Plenary Docket series. Although I hope to get into some greater analysis with a later post in the series, today’s post will break down the Court’s plenary docket by subject matter/litigant. As with my post a couple of weeks ago, my analysis today will adhere loosely to the methodology employed by the Harvard Law Review in its annual Supreme Court Statistics feature. Though the Harvard Law Review’s categorization of cases is not perfect, I have found it to be very helpful in my own research with minor modifications. As a note, I would caution you not to draw too many conclusions from this post as any real trends in the Supreme Court’s plenary docket can only be discerned after analyzing data over a number of Terms, which is not my goal in the post today. (I am currently working on a book that systematically analyzes changes in the Court’s certiorari and plenary dockets over time.) Nonetheless, I think it is interesting to analyze the Term’s docket, if for no other reason than to give our readers an idea about what types of cases the Court is adjudicating this year.
The composition of this year’s plenary docket generally falls into longer-term trends (including the total number of plenary cases) with a few notable exceptions. First, the plenary docket contains a slightly higher proportion of cases involving federal governmental litigation than in any of the past five Terms. The Court granted certiorari in 15 cases involving federal government litigation, or about 19.2% of the total number of cases argued this Term. The primary impetus for the increase appears to be a greater number of cases (10) involving Supreme Court review of administrative action, such as cases arising under environmental, immigration, or other administrative statutes. The ten cases from OT08 involving review of administrative action contrasts sharply with the four cases from OT07, five cases from OT06, and six cases from OT05. Meanwhile, the number of cases involving state or local governmental litigation has dropped precipitously to just 3 cases this Term or about 3.8% of the plenary docket, which is much smaller than the 12 cases from OT07, 14 from OT06, and 15 cases from OT05 in this category. Examples of cases included in the state or local governmental litigation category include those involving federal preemption of state law, the Voting Rights Act, sovereign immunity, and civil rights cases under 42 U.S.C. § 1983.
Oral arguments have concluded for the term. There is no Justices’ conference today; the next will be May 14. If any orders are issued today in pending cases, we will post them promptly.
Lawyers for a detainee cleared for release from Guantanamo Bay but still there with no prospect of leaving have urged the Supreme Court to rule summarily — without written arguments or oral argument — that federal judges may order such detainees transferred to mainland U.S.
The amicus brief was filed April 29 by federal public defenders in Portland, Ore., supporting the pending petition in Kiyemba v. Obama (08-1234) involving 17 Chinese Muslim (Uighur) prisoners who have won a habeas challenge but have been denied actual release by the D.C. Circuit Court. The new brief can be downloaded here.
The public defenders represent two detainees not part of the Uighur group. One of them, Yasin Muhammed Basardh, a Yemni national, was granted a habeas writ but U.S. District Judge Ellen Segal Huvelle ruled that she had no power to bring about his release because of the D.C. Circuit Court ruling at issue in the Kiyemba case. The Oregon defenders also have another client whose habeas case is still pending in District Court.
Arguing that the Circuit Court reached out wrongly and unnecessarily to decide a constitutional issue — that is, that the detainees have no constitutional right that would assure their release, the amicus filing said such cases can be decided by interpreting a federal law to grant the courts authority to accomplish actual release of cleared prisoners. The law mainly at issue, the brief said, is the Authorization for Use of Military Force, passed by Congress in the wake of the Sept. 11, 2001, attacks.
In a second new amicus brief, filed on Wednesday, lawyers for the American Civil Liberies Union contended that the Circuit Court in its Kiyemba decision was relying on arguments that the Supreme Court has explicitly rejected. The Justices must step in, the ACLU contended, because the Circuit Court made “fatal analytic flaws…that will continue to permeate” how the appeals court applies the Supreme Court’s ruling last year in Boumediene v. Bush, creating a constitutional habeas right for Guantanamo prisoners. The ACLU brief can be downloaded here.
A third amicus brief, filed Thursday, repeats a theme that is also argued in the other new filings — that the D.C. Circuit Court has simply repudiated the Court’s Boumediene decision. “This Court should exercise its supervisory powers to ensure that lower courts currently hearing hundreds of habeas petitions filed by Guantanamo detainees follow Boumediene,” according to the brief, filed by an array of legal advocacy groups, led by the Association of the Bar of New York City. This brief can be downloaded at this link.
The Justices presumably will act on the petition before recessing for the summer. The Justice Department response to the case is now due on May 29. The Court is not expected to recess until late June.
Akin Gump has done an analysis of the Supreme Court’s opinion in Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States (07-1601; 07-1607), on the scope of liability facing private parties under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The analysis by Paul Gutermann, David Quigley, and Charles Franklin is available here.
Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.
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