Evergreene Digest A Journal of Progress for the Rest of Us

Yesterday Senator Olympia Snowe of Maine became the fourth Republican senator to announce that she would vote in favor of Elena Kagan’s confirmation to the Court.  Brief coverage of Snowe’s announcement is available at the Wall Street Journal’s Washington Wire blog, the Ninth Justice, the Boston Globe, and CQ Politics.  The editorial board of the Washington Times questions Snowe’s public assurance that Kagan regards the Court’s recent decisions in Heller and McDonald as “settled law,” suggesting that Kagan will instead “follow the same path” as Justice Sonia Sotomayor, who dissented in McDonald.  The Caucus blog of the New York Times calls the announcement unsurprising, given Snowe’s earlier votes for Sotomayor and for Kagan as Solicitor General.  The Times also has an infographic with a running tally of committed Republican votes in the Senate.

Discussion and analysis of the Democratic failure to defeat a Republican filibuster on the DISCLOSE Act, a response to the Court’s decision in Citizens United, continues.  (We compiled news coverage of the unsuccessful vote yesterday.)  The American Prospect’s TAPPED blog discusses the opposition of Senate Minority Leader Mitch McConnell, who called the bill “a transparent effort to rig the fall election.”  At the Atlantic,  DISCLOSE supporter Ben Heineman decries the Democrats’ failure to muster a single Republican vote for closing debate.  The Philadelphia Inquirer editorial board also laments the outcome of the vote, while criticizing the bill as a “weak response” to the Court’s ruling.  A Washington Post reference page briefly summarizes the Court’s holding in Citizens United and what the bill would do in response.  Newsweek has a round-up of commentary on the vote.

Briefly:

●        At a speech at Montana State University yesterday, Justice Scalia said that judges are not qualified to decide “the leading moral questions of the day” and that the big dividing line in the United States is between “those who believe [the Constitution] does not change and those who think it evolves.” The MSU News Service and the Bozeman Daily have coverage.

●        The Wall Street Journal reports that former Enron CEO Jeffrey Skilling is seeking to be released on bail following the Court’s June decision narrowing the scope of the law under which he was convicted.

●        Douglas Berman at Sentencing Law & Policy posts a proposal by a federal district court judge to hold trial judges accountable – in light of their increased discretion to depart from federal sentencing guidelines – by publishing their sentencing decisions.

●        At the Chronicle on Higher Education, Richard Kahlenberg discusses how a new case in the Fifth Circuit raises a lingering question from the 2003 affirmative action decision in Grutter v. Bollinger: “[H]ow vigorously do universities need to pursue race-neutral alternatives to affirmative action before resorting to racial preferences in admissions?”

FURTHER UPDATE 5:55 p.m.  The state of Arizona has now filed in the Ninth Circuit Court a motion for expedited breifing and hearing of its appeal of Judge Susan Bolton’s order Wednesday partially blocking the state’s new alien control law.  The motion in Arizona v. U.S. (Circuit docket 10-16645) can be read here.  It seeks to have all briefing completed by Sept. 2 and an oral argument the week of Sept. 13.

——————
UPDATE Thursday 3:45 p.m.  The state of Arizona began the process of appealing this case to the Ninth Circuit Court by the formal filing of its notice, found here.  State officials have said they will seek expedited review at the Circuit Court and will pursue the case to the Supreme Court, if necessary.  (In the Ninth Circuit, the case is now docketed as 10-16645.)

—————

The constitutional fight over Arizona’s new alien control law appeared Wednesday to be headed toward higher courts after a federal judge in that state blocked four significant parts of the law from going into effect as scheduled early Thursday.  Enforcement of a number of other sections was allowed — partly because the U.S. government did not challenge some, and partly because its attempt to stop others was rejected by the judge.  Whether the dispute will reach the Supreme Court is not yet clear.

State officials have the options of pursuing an appeal to the Ninth Circuit Court, or returning to the state legislature to try to salvage the main parts of the law by rewriting them.  As of now, an appeal seems the more likely option, giving state officials promise to vigorously defend the law at all levels.  At this point, the blocked sections of the law have not been struck down; rather, they are simply on hold while the constitutional case proceeds in U.S. District Court. Even so, appeals may be pursued if they challenge the specific order issued Wednesday afternoon by U.S. District Judge Susan R. Bolton of Phoenix.  (Below the jump are specifics of what was enjoined, and what was allowed to take effect.)

Here, in summary, are the parts of the law that state officials may not enforce for the time being:

** One section — probably the most controversial provision – would require police who stop someone for a suspected crime to try to find out whether the person is in the country illegally — provided they have “a reasonable suspicion” of an illegal entry.  The officer must verify immigration status before releasing the individual after arrest.

** Another hotly contested section that would for the first time make it a crime for an individual to fail to apply for alien registration papers, or a failure to carry those papers with them.

** A section that would make it a crime for an alien not authorized to be in the U.S. to seek or perform a job.

** And, a new provsion allowing police to make an arrest, without a warrant, of a person if the officer believes that person has committed a crime that would be a basis for deporting that individual from the U.S.

Judge Bolton stressed that she would not block enforcement of the new law in all of its parts, as the Justice Department and civil rights groups had urged her to do.  The law itself provides that, if any part is struck down, other parts can remain in operation.  That, plus the fact that some of the new law simply changes existing law, led the judge to conclude that she had to analyze the measure section by section. 

While granting the federal government’s plea to temporarily forbid enforcement of four provisions, the judge rejected the government request to do so for a section that creates a crime for transporting or harboring an illegal alien, or to encourage an alien to come to or live in Arizona if they are not authorized to enter, and for a section that changes existing law to allow police to seize vehicles used to transport or harbor illegal aliens.

On those two sections, Bolton ruled, the government had not made a case that they will be struck down when a decision is reached on their constitutionality, so she allowed the state to enforce those starting Thursday.

Bolton noted that the government had not asked for an order against enforcing ten other provisions.  Among the more controversial parts that may go into effect is a new law giving Arizona residents a right to sue any state official or agency adopting a policy that would lead to lax enforcement of federal immigration laws; such a lawsuit would assert that the official or agency had failed to work for enforcement to “the full extent” of federal law.

Another provision that she allowed to go into effect would create a crime to stop a car or truck to pick up day laborers and for day laborers to get into a car or truck if that would interfere with normal traffic movement.  Bolton also did not block four separate provisions that add to existing law that makes it a crime to knowingly keep an illegal alien on the job, to to intentionally hire an illegal alien.  Also allowed was a change in present law that requires businesses or others hiring workers to check on their eligibility to be hired.  While the government’s lawsuit against the Arizona law also challenged a change in state law that already makes it a crime to engage in “human smuggling,” the Justice Department told the judge it was not seeking to block that section at the present time.

Judge Bolton’s ruling dealt only with the Justice Department’s argument that federal law has displaced Arizona’s authority to try to regulate immigration policy.  She did not rule on civil rights groups’ claims that the new law will have a racial discriminatory effect, because it will lead to “profiling” of Latinos, whether they are citizens or not, and whether they are legally in the country or not.

In discussing the federal “preemption” issue, however, the judge did conclude that the law would appear to sweep so broadly that it would contradict federal policy against requiring  citizens or legal aliens to have papers showing that they are legally in the country.  A direct conflict with federal policy, the judge found, requires that a state law seeking to implement a different policy must yield.

A book released last week, In Brown’s Wake, examines the legacies of Brown v. Board of Education in perhaps unexpected places: in struggles for the integration of non-racial identity groups, in social science, and abroad.  The author, Harvard Law School Dean Martha Minow, kindly agreed to an interview on the book for SCOTUSblog.

The transcript of the first half of our interview follows the jump; the second half will be published later this week.

1. The bulk of your book is about the impact of Brown on everything other than school racial integration – on social science, on the international community, and on the schooling of other identity groups, like girls, the disabled, English-as-a-second-language learners, and gays and lesbians.  Why did you decide to bring these topics together?

I was motivated to do that as the fiftieth anniversary of Brown approached. As someone who’s been involved in school reform issues as a scholar and as an advocate, I knew about these other repercussions, and assumed other people would talk about them – and I didn’t see anyone exploring these influences of Brown beyond the context of race.

2. I’m curious about your concept of “wake” as you use it in your title, In Brown’s Wake.  What causal role do you think Brown played in the legal and policy developments that you discuss in the book?  How would those events have happened differently – if at all – without Brown?

Causal analysis and “what if” questions are always problematic when one analyzes history because there are multiple causal paths to any complex occurrence – and certainly changes in social movements and in the treatment of groups in America are complex occurrences.  But I do think it’s pretty clear that in each of the strands that I pursue – Brown as a decision by the Supreme Court, Supreme Court litigation as a vehicle for changing the treatment of students in schools, and the legislative repercussions of Brown – each contributed to mobilization of groups around issues of immigrant status in the schools, gender, disability, religion, and other identity categories.

The legislative wave took ten years after Brown to get enacted.  The Civil Rights Act of 1964 rejected resistance to racial integration and at the same time in some ways predated the mobilization of the interest and advocacy groups turning to issues of immigration, gender, and disability.  Yet the influences of Brown become easy to trace when it comes to educational advocacy around immigration, disability, language, and many other areas, as many of the advocates involved were quite explicit in saying they were inspired by Brown.  Perhaps one of the most surprising examples of Brown‘s influence is the movement for equal treatment of religion and religious students in schools by the law.  The advocates in that area were very explicit that they wanted to copy the NAACP strategy in changing the law.

3. You repeatedly mention the symbolism of Brown in your book.  Do you think Brown has had a greater impact as a concrete legal opinion, or as a symbol?

The current status of actual racial integration across the country’s schools is disappointing in the sense that the schools across the country are not more integrated now than they were in the time that Brown was litigated.  I do believe that Brown v. Board of Education has had a greater concrete impact in schools outside the treatment of race – in terms of the day-to-day lives students and the enrollment patterns of schools in dealing with students with disabilities, gender equality, and students learning English, for example.  But even these concrete effects follow symbolic effects, at least in the treatment of students with disabilities, girls and now boys, students who are learning English, and so forth.

Your question is evocative, I think, and helps to connect with other reasons I had for writing the book. I have been very struck by the symbolic influence of Brown in inspiring social movements for school reforms and in inspiring litigation efforts to reform schooling in other countries that don’t have our same constitutional provisions.  Frankly, the symbol of Brown is powerful in this country in inspiring legal action that has nothing to do with schools and nothing to do with race.  And in that sense I do believe it’s had an enormous symbolic effect as well as a striking ability to rise to the top of most people’s lists of the great accomplishments of the U.S. Supreme Court.  That fact is itself remarkable given how controversial many people feared the case would be, and how controversial its implementation was.

4. You said a moment ago that the status of school racial integration after Brown is disappointing.  Do you think that’s partly due to shortcomings in the decision itself, or just how it’s been implemented?

Some — like my colleague Michael Klarman – argue that Brown itself in 1954 halted what would have been a more gradual, but direct, process toward integration.  There may well be shortcomings in the way that the Supreme Court followed with its remedy in 1955.  Certainly many have argued about that.  Yet the argument goes both ways.  Some people argue that Brown II used the phrase “all deliberate speed” as a sign to encourage resistance to its implementation.  Other people argue that if there had been any stricter enforcement, there would have been other kinds of backlash.    So this is a much-disputed question.  I don’t think I know the answer, I don’t think anyone really knows the answer.

But I do know that the resistance to Brown persisted in this country well into the early 1960s and it wasn’t until the Department of Justice took action in the 1960s following the 1964 Civil Rights Act that there was any serious effort in many parts of the country to enforce Brown.  Under that effort to have enforcement, school districts – especially in the South – became much more racially integrated, or shall we say desegregated, and the racial gap in achievement began to close, quite dramatically.  But the Court then backed off from that enforcement effort; it became a controversial issue all over the country, including in Boston which I have watched closely since the mid-1970s. And so it’s a very complicated and disappointing story, and I try to detail some of the features of that story in the book.

5. In the book you stress the social science in favor of mixing students from different backgrounds in order to foster tolerance.  Can you tell us more about that social science debate today?

One of the repercussions of Brown has been increasing reliance on social science research in school reform litigation and legislation.  This stems from the litigation in Brown itself.  Parties on both sides recruited social scientists to help them, and ever since that time there have been serious initiatives by social scientists – and some that are quite partisan – to study the impact of mixing students in schools, or other people of different backgrounds outside school settings..  hey study the influence on tolerance, on measures such as academic achievement, creativity, and so forth.  So what I try to do in the book is both document the impact of Brown on the disciplines of psychology and social psychology and to try to make sense of what have been rather heated debates in those fields.  And they’re heated debates in part because social scientists continue to be in relationship with, and working alongside, advocates on competing sides of reform efforts.  That goes for gender, English-language learning, and disability as well as race.  Trying to sort out what is rigorous social science and what is social science in name only performed on behalf of advocates has been one of the challenges of the book.

6. Should courts take into account the findings of social science, or should that consideration be left to policy makers?

I do believe that social science can serve a function in courts, and of course can be helpful in legislative matters.  However, paying attention to what are the norms that social scientists have themselves developed for reliability, statistical significance, and good research design would help to improve the quality of the evidence that is used both by courts and by legislatures.  And some humility about how objective any of these studies are would be helpful.  At the same time, I think it’s a mistake to rule all of it out of bounds as evidence for judicial decision-making.  There are findings, and there are insights, that can be useful, so long as they are not elevated as some kind of ultimate truth.  I’ve found it especially useful to turn to studies of the U.S. military schools that do seem to be fairly rigorous and do show the benefits of efforts at racial integration.

Through Sunday, August 15, we are continuing to accept applications for both blog internships. Through Saturday, August 7, we are accepting applications for the job opening for a special assistant to Tom Goldstein/Howe & Russell office manager/SCOTUSblog staff member.   See instructions and requirements for applying here (for the internships) and here (for the paid position).

To answer a frequently asked question, the internships are not restricted to law students.  If you are not currently enrolled in any academic program, please send your most recent academic transcript.

Yesterday Senate Democrats were unable to break a Republican filibuster on the DISCLOSE Act, a legislative response to the Court’s recent decision in Citizens United v. Federal Election Commission that would require more disclosure in campaign spending. The bill, passed by the House last month, is now unlikely to clear the Senate in time to affect this year’s congressional campaigns. The Los Angeles Times, Politico, NPR, the Washington Post, the Hill, the New York Times, the Wall Street Journal, Bloomberg, the Boston Globe, and U.S. News & World Report all have coverage of the Senate vote. Editorials in the New York Times and the San Francisco Chronicle criticize Senate Republicans for blocking the bill.

The impacts of two other decisions from the most recent Term are also in the news.  Noeleen Walder reports for the New York Law Journal that New York trial courts have disagreed whether to apply retroactively the Supreme Court’s ruling in Padilla v. Kentucky. In Padilla, the Court held that an attorney has a constitutional obligation to inform a client whenever a guilty plea carries a risk that the client will be deported. Meanwhile, Bloomberg’s Greg Stohr reports that Morrison v. National Australia Bank, which holds that America’s main law against securities fraud does not apply to investment deals occurring outside the United States, is already having an impact on existing lawsuits and could save foreign-based companies billions of dollars in litigation costs.

Briefly:

• Laurie Blank and Amos Guiora have an opinion piece in the Atlanta Journal-Constitution criticizing the Court for not halting the transfer of two Algerian detainees at Guantanamo earlier this month. They write that the Court “facilitated the first involuntary repatriation of a detainee who was never brought to trial.”
• At the Volokh Conspiracy, Orin Kerr discusses a new cert. petition from the Department of Justice that he predicts is “very likely” to be granted.  The issue is “[w]hether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final.”
• ACSblog highlights President Obama’s remarks yesterday in the Rose Garden urging the Senate to confirm his judicial nominees.
• In a post at Balkinization discussing when filibusters are justified, Sandy Levinson offers a critique of Senator Lindsey Graham’s explanation for why he will vote to confirm Elena Kagan. Levinson writes, “I obviously believe that Kagan deserves support and that the Republican opposition to her is spurious to the core, but if one really wants to roll back the New Deal, then it is completely rational to oppose Kagan.”
• At the Huffington Post, Eric Liu defends the judge-umpire analogy on the ground that calling balls and strikes in baseball is a subjective, non-robotic interpretive exercise. Liu argues that progressives “should embrace [the analogy]. We should repeat it emphatically.”

Setting the stage for a new challenge to the U.S. government’s use of a prison in Afghanistan to hold detainees who had been captured outside that country, the D.C. Circuit Court has told lawyers for three prisoners there that they may offer new evidence to a federal judge in a renewed test of their captivity.  The lawyers have argued that the evidence shows a government plan to hold prisoners there indefinitely, and without charging them with any crime.  The Justice Department has not yet responded to that claim, but will have a chance do so when the case returns to U.S. District Court.

The Circuit Court, in a brief order dated last Friday, refused to reconsider its own May 21 ruling that U.S. courts may not hear challenges to detention by the U.S. military at the Bagram prison, located on an air base outside of Kabul.  But the panel did so without itself evaluating the detainees’ new claim, and said that its denial of rehearing was “without prejudice” to the detainees’ opportunity to offer their evidence to a District judge “in the first instance.”   It acted without seeking the views of the Justice Department on the government’s current policy at Bagram — a further indication that it was holding off for now any further ruling on courts’ authority to inquire into that policy’s legality.

Reports have been circulating for weeks in Washington and elsewhere that the U.S. government, after a planned turnover of much of the Bagram prison facility to the Afghan government, intended to retain a part of it to house non-Afghan prisoners for interrogation about alleged terrorist activities or ties.   One report, citing the International Red Cross, said there were indications that the U.S. was holding non-Afghans in a separate part of the prison facility.  Relying on those reports, counsel for the three non-Afghan detainees contended in a rehearing plea to the Circuit Court that the Obama Administration was now seeking to “manipulate” the use of Bagram as part of a broader program of “rendition” of suspects rounded up beyond Afghan borders.

The rehearing petition was filed July 6.  Under the Circuit Court’s usual practice, no response could be filed to that plea unless the Court requested one.  It did not do so, and took no action on the petition until issuing its new order last week.  The order noted that the claim of new evidence was based on information “not in the record.”  The information allegedly came to light after the Circuit Court had held a hearing in the case on Jan. 7, and some of it came after the panel issued its ruling May 21 — and it thus was not considered by the panel.  The order added that  the detainees’ lawyers were now contending that the “government’s decision to transfer the Bagram prison facility to Afghan control undermines the rationale” of the May 21 decision.

That is the claim that the Circuit Court has now cleared for renewal before U.S. District Judge John D. Bates.  Earlier, Bates had ruled that the Supreme Court’s 2008 decision in Boumediene v. Bush had laid down a formula that U.S. judges could use in evaluating whether a prisoner hold abroad by the U.S. government was entitled to pursue a habeas challenge in U.S. courts to that confinement.  Judge Bates found that, at least for non-Afghans captured outside of Afghanistan and then transferred to Bagram, they could seek habeas relief from captivity.  That was the ruling the Circuit Court overturned in late May, leading to the rehearing plea.  (Bates rejected habeas rights for Bagram prisoners captured inside Afghanistan.)

The detainees’ lawyers contended in their rehearing plea that the Executive branch of the U.S. government was engaging in the very kind of “gamesmanship” to detain people beyond the reach of U.S. courts that the Supreme Court had condemned in the Boumediene decision (which dealt specifically with detainees at the U.S. Navy facility at Guantanamo Bay, Cuba).

Lawyers for the three non-Afghans have the option of pursing their claim anew before Judge Bates, or seeking to take the case on to the Supreme Court to challenge the Circuit Court’s May decison.  The latter option seems unlikely, because it might have little chance of getting reviewed, since the Circuit Court had give the detainees’ another chance to press their case before Judge Bates.

The case in the Circuit Court was Al-Maqaleh, et al., v. Gates (the lead case docket there is 09-5265).  In District Court, it is docketed as 06-1669.

Yesterday and today, a number of commentators responded to Adam Liptak’s weekend piece on the Roberts Court (which Erin covered in yesterday’s round-up.)  ACSBlog recaps the piece, while Ed Whelan of the NRO’s Bench Memos blog criticizes Liptak’s article, which he characterizes as “likely to mislead the reader.”  At Cato @ Liberty, Ilya Shapiro also analyzes Liptak’s article – disputing, among other things, the assignment of a particular ideological value to judicial decisions.

At CBS News, Jeff Greenfield explores what would happen if a conservative Justice retired during the Obama Presidency.  Because such a scenario could lead to a dramatic ideological shift on the Supreme Court, he predicts that some conservative commentators might argue “that the Congress should simply leave the position vacant until voters decide in 2012 who should be nominating justices.”  Mike Sacks, at his First One @ One First blog, dismisses Greenfield’s hypothetical as “a speculation too far.”

Several publications also weigh in today on the Disclose Act, a response to the Court’s recent Citizens United ruling on which the Senate is scheduled to vote soon.  The editorial board of the Washington Post urges Senators to pass the legislation if they “care about maintaining a transparent campaign finance system,” while the editors of the San Jose Mercury News also praise the bill.  The Los Angeles Times reports that President Obama also urged Senators yesterday to pass the Disclose Act.

At the Wall Street Journal, Chad Bray reports on the fall-out of the Court’s recent decision in Morrison v. National Australia Bank, reporting that the media conglomerate Vivendi SA has recently argued that the ruling bars shareholders who bought Vivendi stock overseas from bringing fraud claims in the U.S.  Bloomberg also reports on the Vivendi case, as does ABC News .

Briefly:

• At his Jost on Justice blog, Ken Jost notes that the GOP’s stance on the Commerce Clause has “put Republicans in the contradictory position of begging [Elena] Kagan, if confirmed, to be a ‘judicial activist’” on the issue.
• Richard W. Garnett speculates as to Kagan’s possible stance on religious liberty in an opinion piece for the USA Today.
• The Knoxville News Sentinel‘s Kristi L. Nelson profiles activist George Lane, whose landmark disability-rights case, Tennessee v. Lane, was decided by the Court in 2004.

The Supreme Court on Monday released the first of its summer orders lists, made up of routine actions, including denials of stays or bail and denials of rehearing petitions.  It is expected there will be two more such lists during the Court’s summer recess.  The new Term begins Oct. 4.

This post is a round-up of weekend news and commentary about the Court.  A round-up of coverage from today will appear tomorrow morning.

Adam Liptak has two new features on the Court in yesterday’s New York Times.  In the longer one, he reports on a recent analysis by political scientists who conduct empirical research on the Court.  According to that research, the Court has moved to the right during the tenure of Chief Justice Roberts, and especially after the replacement of Justice O’Connor with Justice Alito in 2006.  At her eponymous blog, Ann Althouse is skeptical of the methodology that the political scientists use to classify cases by ideology.  At Dorf on Law, Michael Dorf also discusses that this type of political science data is largely ignored by legal academics.

In the shorter Times feature, Liptak discusses the debate over whether Elena Kagan, if confirmed, should recuse herself from future challenges to health care reform legislation if – as expected – they reach the Court.  Kagan’s confirmation hearings, Liptak observes, “highlighted how vague the standards for recusal by Supreme Court justices are.”

In the Washington Post, Robert Barnes focuses on the dissent authored by Justice Stevens in McDonald and Justice Scalia’s concurring opinion in that case, characterizing them as the last in a series of intellectual “duels.”

A third Republican senator has agreed to vote for Kagan’s confirmation, according to the Associated Press: Senator Susan Collins of Maine.  Meanwhile, the Ninth Justice reports that Lamar Alexander, chairman of the Republican Conference, has pledged to oppose Kagan.

At Findlaw.com, Michael Dorf commends Republican Senator Lindsey Graham for his vote in favor of Kagan, but – in a lengthy analysis – he disputes Graham’s suggestion that senators are constitutionally required to confirm a “mainstream” nominee.

Briefly:

• A UPI feature by Michael Kirkland (thanks to Howard Bashman for the link) discusses next Term’s prison-crowding case, Schwarzenegger v. Plata, a challenge to a lower-court order requiring large-scale reductions in the California prison population to remedy the constitutionally inadequate health care provided to prisoners.
• Nathan Koppel at the WSJ Law Blog summarizes last week’s ABA Journal article on the “flexible standards” established by the Court for patent cases in Bilski v. Kappos.
• In a weekend interview, the Wall Street Journal talks to law professor Randy Barnett, who explains why he thinks the Court would, if asked to rule on the recent healthcare reform legislation, find it unconstitutional.
• Steven Schwinn at Constitutional Law Prof Blog has an update on the DISCLOSE Act, a bill requiring corporations to disclose campaign donations in light of the Citizens United decision.

The Court is in recess for the summer, and is expected to return on October 4 for the first oral argument of October Term 2010.

The reply brief is due Wednesday, July 28 in Los Angeles County v. Humphries (09-350).  The respondents’ briefs are due Friday, July 30 in both Arizona Christian School Tuition Organization v. Winn (09-987; 09-988; 09-991) and Williamson v. Mazda (08-1314).

A full-time position is coming available beginning in August: Firm Manager of Howe & Russell / Special Assistant to Tom Goldstein / Staff Member of SCOTUSblog.com.

To apply, please send a cover letter, résumé, transcript (either official or unofficial), and unedited writing sample (of approximately five pages) to achristensen@howerussell.com and aschlossman@akingump.com as soon as possible.

We will accept applications through Friday, August 7.  Hiring decisions will be made promptly and the job will begin immediately thereafter.  A two-year commitment is preferred, with the individual likely to assume greater responsibility the second year.

The job requirements and qualifications follow the jump.

Job Requirements:

There are three components to the position.  The principal responsibilities are the following:

Howe & Russell:

• Coordinating the involvement of Stanford Law School students and co-counsel on briefs for Howe & Russell, a boutique Supreme Court firm.
• Proofing Supreme Court filings for Howe & Russell.
• Administrative work for Howe & Russell, including paying bills; handling insurance, tax, and employee paperwork; and sorting and sending out office correspondence.

Special assistant to Tom Goldstein:

• Administrative work for Tom Goldstein, which involves keeping his calendar, coordinating his meetings, calls, and media appearances, and scheduling his travel, which may entail making frequent last-minute changes and arrangements, sometimes during off hours.
• Some personal administrative work.

SCOTUSblog.com:

• Recruiting and managing writers for SCOTUSblog among Stanford and Harvard Law School Supreme Court clinic students and Akin Gump lawyers.
• Assisting with SCOTUSblog.com, primarily tracking the Court’s activities and making that information available to SCOTUSblog readers: adding Court-related events to the blog calendar and updating case files with information from the Court, oral argument transcripts, opinion releases, and links to news coverage about the Court; covering the release of opinions for SCOTUSblog’s live blog on Twitter.
• Obtaining briefs and others materials from the Supreme Court, government officials, and practitioners for internal review and/or public posting.

Qualifications:

• Excellent organizational skills and attention to detail.
• Excellent writing and editing skills.
• Strong interest in learning about the U.S. Supreme Court and its workings.
• Undergraduate experience with law-related courses is a plus, though not a requirement, as is an interest in attending law school. Part-time law students are not eligible for this position.
• Entrepreneurial spirit – we are always looking to increase/improve content on the blog and welcome suggestions.  In addition, our team here is very small; you will be involved in planning the long-term strategy and vision of the blog, wiki, and the practice as a whole.
• Ability to improvise. We occasionally need all hands on deck to turn projects around on tight deadlines, and you’d be assisting in many of these efforts.
• Some experience working with (or at least interest in) blog or website technology. No computer programming is necessary, but a familiarity with blogs, wikis, and online database searching is a major plus.

Please do not hesitate to contact Adam or Anna with any questions. You can reach Anna at achristensen@howerussell.com and Adam at aschlossman@akingump.com.

Seeking the same favorable constitutional treatment that corporations and labor unions now have when they try to influence federal elections, five  individuals who have formed a group known as “SpeechNow” on Friday asked the Supreme Court to spell out the full implications of its controversial ruling in January in the Citizens United case.   The new petition in SpeechNow.org v. Federal Election Commission can be read here; a docket number has not yet been assigned.

The petition, if granted review by the Court, could clarify the kind of government restrictions that can be imposed upon political campaigning groups — independent of the candidates and the parties —  that do not take the corporate form, but seek to raise and spend unlimited amounts of money to support or oppose specific candidates for Congress and the presidency.  Specifically, the issues are whether such groups must sign up with the government as PACs (political action committees), and thus satisfy all the FEC-imposed rules on how they organize and how much detail they must publicly disclose about what they spend.

The SpeechNow case has been a closely watched sequel to the Justices’ ruling in Citizens United v. FEC, creating a constitutional right for corporations and labor unions to spend unlimited amounts during federal election campaigns.  Although that ruling was limited to corporations and unions, and to their spending, the D.C. Circuit Court followed up in March with a decision in SpeechNow extending Citizens United to allow independent political organizations not only to spend withoiut limits, but also to raise as much money in contributions as they wish, free of any federal ceilings or restrictions on the sources of the money.

The Circuit Court’s removal of any curbs on raising and spending money by independent groups is not being tested in the new appeal in the SpeechNow case.   The organization won on those points in the Circuit Court, and the Justice Department decided not to challenge those expansions in the Supreme Court.  (A letter to Congress explaining why the government opted not to challenge the SpeechNow ruling can be found here.  It was sent in June, but has just become publicly available.)

The new petition by the five organizers of SpeechNow  is a test of separate questions that were involved in both Citizens United and in the Circuit Court’s SpeechNow ruling.

While Citizens United ruled that corporations and labor unions must make some public disclosure of their spending, the Justices expressly ruled that this obligation cannot be as heavy as federal law provides for PACs, and that corporations and unions cannot be required to carry on their political activity through PACs, which must satisfy specific organizational and operational requirements.   Those, the Court said, would be too burdensome for corporations and unions, and could limit their freedom to speak out during federal campaigns.

The Circuit Court found that requiring the independent groups to register with the FEC as political committees and to follow disclosure requirements for such committees would not be a significant burden on them.  But SpoeechNow, in its new challenge in the Supreme Court, argued that this in essence means that independent groups that are not incorporated must file with the FEC as PACs, and satisfy all the obligations that the Supreme Court said would be a burden on corporations and unions.

Thus, the first question in the new petition seeks to test whether “an unincorporated group that makes only independent expenditures and thus poses no risk of corruption or its appearance must organize as a political committee in order to speak.”

The second question seeks a ruling that such independent groups should only have to meet minimal requirements on disclosing their spending — the same obligations that now exist for non-profit groups that are formed as corporations, and that now apply, under Citizens United, to for-profit corporations and to labor unions.

“This case,” the petition says in its opening, “raises the question of whether the government may impose the full panoply of burdensome requirements that apply to political committees or PACs’ on a group that makes only independent expenditures.  The group…will willingly comply with the same sort of disclosure and disclaimer provisions that Congress provided for groups, other than PACS, that make independent expneditures.  These provisions…are very similar to those this Court upheld in Citizens United….as they applied to corporations.”   They are “far less burdensome” than those imposed on PACs, it added.

“In many ways,” the petition added, “the D.C. Circuit’s decision turned Citizens United on its head.  In Citizens United, this Court concluded that PAC requirements are too burdensome for corporations, yet the D.C. Circuit has now concluded that those same requirements are not too burdensome for a small group of individuals.”  That, it argued, results in a First Amendment violation for such independent groups.

Because of technical details in the way the SpeechNow case developed in lower courts, SpeechNow itself is not directly involved, although the case keeps the same title it had in lower courts.  The Supreme Court petition thus was filed on behalf of David Keating, Fred M. Young, Edward H. Crane III, Brad Russo, and Scott Burkhardt — the principal figures in the new organization.   It attempted to gear up to run campaign ads opposing specific candidates in 2008, but did not do so, fearing what might happen with the FEC if it did.  Instead, it sued to challenge FEC’s regulations for political committees.

Keating, SpeechNow’s president and treasurer, is a long-time political activist who has been working in tax reform or low-tax organizations.  Another of his political operations is Club for Growth, a campaign group that has its own PAC, but also just this week gained FEC approval to organize a new offshoot, an independent organization that can raise and spend free of any of the limits on the PAC.

Although federal campaign finance law does not specify just what kind of political operation must be set up as a regulated “political committee,” SpeechNow protested in the new petition that the FEC follows an approach that any group that has as its “major purpose” federal campaign activity must sign up as such a committee.   SpeechNow is contesting that approach, too.

Another issue that SpeechNow said is involved is what level of scrutiny is to be applied by courts in judging the validity of independent groups’ public disclosure duties.  It said that the Supreme Court applied “strict scrutiny” in the Citizens United case, and thus ruled out for corporations and unions the duties imposed on PACs, but that the D.C. Circuit found that PAC status was “merely a disclosure law that triggered only intermediate scrutiny.”  And, it added, even as the Circuit Court applied that lower level of review, it misapplied it.

In a new plea that U.S. law should not reach overseas, British American Tobacco Co. on Friday asked the Supreme Court to order a second look by lower courts at the federal anti-racketeering law’s scope. That law was used in the federal government’s massive lawsuit against nearly the entire tobacco industry, including the British firm — a case the Supreme Court refused to hear, denying seven separate appeals last month. The petition for rehearing (found here) is based mainly on the Supreme Court’s broad ruling on June 24 against the overseas reach of U.S. securities law (Morrison v. National Australia Bank, 08-1191).

While conceding that the Court seldom grants rehearing to review a case once denied, the petition said it was “far more common” for the Court to agree to rehear a denied case and then set aside a lower court ruling so that “an intervening decision” by the Justices can be taken into account. The D.C. Circuit Court, it argued, should be told to “consider Morrison’s impact in the first instance.” In upholding all key parts of a District Court ruling against the industry, BATCo’s lawyers contended, the Circuit Court created a “flawed ‘exception’ to the traditional presumption against extra-territoriality” of a U.S. law based on the alleged “effects” on the U.S. of overseas conduct.

“The D.C. Circuit Court held that RICO [the anti-racketeering law] could properly be applied to BATCo’s foreign conduct based on that novel theory, and on its twin conclusions that the ‘effects’ test could be properly transplanted from securities and antitrust law to RICO and that a severely watered-down version of the ‘effects’ test is satisfied here,” the petition said. The Morrison decision, it added, directly rejected that test for securities law, thus undercutting the Circuit Court’s conclusion about BATCo.

“Not only does Morrison invalidate the rationales underlying the D.C. Circuit’s extraterritoriality decision, but it also repudiates the legal authorities on which the lower courts relied,” the petition contended. “In light of Morrison, there is a virtual certainty — far more than merely the requisite ‘reasonable probability’ — that the D.C. Circuit would reject the premises underlying its decision to use the ‘effects’ test (a) to measure RICO’s extraterritorial reach, and more generally (b) to disregard the presumption against extraterritorial application of U.S. laws.”

Within the wording of the RICO law, how that law’s various parts fit together, and the history of its passage by Congress, there is “substantial evidence…that Congress did not intend RICO to extend beyond the Nation’s borders….Morrison reaffirmed that domestic conduct must be the ‘focus of congressional concern’ for it to render an otherwise extraterritorial application of a U.S. statute domestic in nature.”

Under the Supreme Court’s Rule 44, the Justice Department will not be allowed to respond to the rehearing petition unless the Court asked it to do so.  And, the Rule adds, “in the absence of extraordinary circumstances,” a rehearing petition will not be granted if no response has been requested.  Amicus briefs also will not be accepted on such a plea.

In the government’s RICO case against the cigarette-making companies, it charged that the firms had engaged — for more than four decades — in a scheme to defraud the American consuming public by denying and covering up the health hazards of smoking. As the case was finally resolved in many respects in the government’s favor, it was based solely on the RICO statute.  The Justice Department, anti-smoking groups, and most of the major cigarette companies had sought review by the Justices; all were denied (as usual, without comment) on June 28.  The one key part of the Department’s case that failed in the D.C. Circuit was a plea to force the industry to forfeit some $280 billion in profits it had made since 1971.  The Supreme Court, in fact, had refused twice to hear a government appeal on that point — once when the case was in the midst of trial, and then again in the June 28 denials.

Today, the blogosphere and news media continued to report on the anticipated outcome of the upcoming Senate floor vote on Elena Kagan’s confirmation. The New York Times’ Caucus blog reports that Indiana Senator Richard Lugar has just become the second Republican to publicly back Kagan, and the Boston Globe also has coverage of Senator Lugar’s announcement.  Meanwhile, the Chicago Sun-Times writes that GOP Senate candidate Mark Kirk of Illinois has indicated that, if he were a Senator now, he would support Kagan’s confirmation, while the Birmingham News notes that Senator Richard Shelby of Alabama plans to vote against her, as does Senator Lamar Alexander of Tennessee, reports USA Today.

In a column at the Washington Post, David S. Broder argues that, with the anticipated confirmation of Elena Kagan as the fourth-ever female Justice on the Supreme Court, the culture of the judiciary will change for the better.  Ed Whelan responds to Broder’s discussion at the NRO’s Bench Memos blog, highlighting the late Justice Brennan’s longtime opposition to the presence of female clerks and Justices on the Court.  Meanwhile, Naftali Bendavid writes at the Wall Street Journal that Elena Kagan’s confirmation process has made clear that Supreme Court nominations are now “part of the partisan battleground,” citing comments from both sides on the Kagan nomination, and at the St. Louis Post-Dispatch, Travis Scholl addresses the fact that Elena Kagan’s confirmation will herald a Supreme Court which, for the first time ever, lacks a Protestant Justice.  (If Kagan is confirmed, all nine Justices will be either Catholic or Jewish.)

The Los Angeles Times’ Richard Simon reported yesterday that the House of Representatives, in response to this year’s ruling in United States v. Stevens, approved a narrow bill prohibiting the sale and distribution of obscene video depictions of animal cruelty.  Unlike the law struck down by the Court, the new bill exempts video depictions of hunting, fishing, and “customary and normal veterinary or agricultural husbandry practices.”

In another follow-up to one of this Term’s landmark rulings, the Associated Press covers the efforts of two interest groups – one liberal, one conservative – to collect large contributions for campaign ads.  Both groups, correspondent Sharon Theimer writes in her article, seek to capitalize on the Court’s January ruling in Citizens United v. FEC.

Briefly

• The Toronto Globe and Mail has coverage of Conrad Black’s release following a Supreme Court decision overturning a critical element of his conviction.  (Lyle also reported on the development yesterday for this blog.)  The paper notes, however, that an insurance policy covering the media mogul’s legal costs has been terminated, leaving Black with millions of dollars in legal fees.  (Thanks to How Appealing for the link.)
• Also at this blog, Lyle reported yesterday on the appointment of a private lawyer to argue the government’s case in Pepper v. United States.
• In the ABA Journal, Steven Seidenberg has an article on the implications of last month’s Bilski ruling for patent law.

Without waiting until it writes new rules to carry out the Supreme Court’s controversial January ruling lifting campaign finance curbs,  the Federal Election Commission on Thursday approved formation of two new groups that will raise and spend unlimited amounts of money to try to directly influence congressional elections this year. One of the new groups is an offshoot of a Republican-leaning organization that has raised and spent millions in federal elections in recent years; the other is an entirely new group formed by individuals long associated with Democratic campaigns.  There was a lone dissent as the five other FEC members approved both.

An FEC news release, including links to the approved advisory opinions as well as to the dissenting opinion, is here.  Note that the Commission approved the first of the two drafts regarding creation of a new independent committee formed by Club for Growth, a conservative, low-tax group that usually supports GOP candidates.  The second draft would have delayed any approval for Club for Growth’s new entity until after the FEC writes new rules, expected by the end of 2010.  The second opinion clears the way for creation of a new Democratic operatives’ group named Commonsense Ten.

The Commission acted in the wake of the Supreme Court’s ruling in Citizens United v. FEC — a 5-4 decision that cleared the way for corporations and labor unions to spend unlimited amounts of money to try to support or defeat specific candidates for federal office, so long as they operate independently of those candidates. their organizations, or the political parties.  The FEC also was responding to a sequel to Citizens United — the en banc D.C. Circuit Court’s unanimous March ruling in SpeechNow v. FEC.  The SpeechNow decision broadly expanded the scope of the Citizens United ruling, by lifting all curbs not only on independent groups’ spending, but also on the amount of donations they may accept.  (The Obama Administration chose not to challenge the SpeechNow ruling in an appeal to the Supreme Court.)

The impact of those two rulings, and the FEC’s response,  is expected to be felt strongly in the current congressional election cycle, and in the presidential election campaign that looks toward the election in 2012.   While independent groups will be operating free from any ceilings on raising and spending money, the candidates’ organizations and the two national political parties must continue to operate within strict limits set by federal law.  The Supreme Court at the end of last Term summarily upheld, over three dissents,  a lower court ruling that the national political parties have no constitutional right to raise money outside those legal limits (Republican National Committee v. FEC, 09-1287).

The Club for Growth, in asking the FEC to approve its new independent campaign committee, said that it would only raise money from individuals, not from corporations, labor unions or other organizations.   It was given permission to do that, including permission to take in money that the donors want spent on specific candidate races.  Club for Growth already has a Political Action Committee, but it is subject to some limitations under federal law.

The Commonsense Ten organization told the FEC that it would seek to raise unlimited amounts from individuals, other political committees, corporations, and labor unions.  It said, however, that it would not accept any donations from foreign nationals, federal contractors, national banks, or corporations organized under an act of Congress.

While being free of contribution and spending restrictions, both organizations will file reports describing both to the FEC.  The Supreme Court, while striking down limits on independent spending, upheld the constitutionality of disclosure requirements for such organizations.

Voting Thursday to approve both groups’ creation were Chairman Matthew S. Petersen, Vice Chair Cynthia L. Bauerly, and Commissioners Caroline C. Hunter, Donald F. McGahn II and Ellen L. Weintraub.  Dissenting alone was Commissioner Steven T. Walther.  In his dissenting opinion (the other Commissioners did not write separately from the staff-drafted opinions they approved), Walther contended that the approvals would go beyond what the Supreme Court had allowed in Citizens United, and that any such expansion should await the scheduled rule-drafting process.

UPDATE Friday p.m.  A federal judge on July 22 ordered Jason Pepper’s release from prison while the Supreme Court considers his appeal.  (Thanks to Doug Berman of Sentencing Law and Policy blog for the alert and the link to the release order.)

——————–

The Supreme Court on Thursday named a New York City lawyer and former Supreme Court clerk to argue the side of a criminal sentencing case that the federal government normally would defend.   The government, however, has sided with the prison inmate challenging his sentence in Pepper v. U.S. (09-6822) — a case granted review near the end of last Term and not yet scheduled for oral argument.

At issue in the case is whether, under federal law, a judge imposing a new sentence after an earlier one was set aside  is barred from reducing the sentence as a way to give the individual credit for having made efforts to rehabilitate himself after the initial sentence was imposed.  The Justice Department now takes the position that the judge may do so.  The Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.

In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority.  Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr. 

Pepper pleaded guilty to a charge of conspiring to distribute an illegal drug, methamphetamine, after being arrested during a federal probe of a “meth” trafficking ring in Iowa.  Under federal guidelines, his sentence could have been set between 97 and 127 months, but the judge imposed a sentence of only 24 months – a figure the judge chose to make Pepper eligible for drug rehabilitation at a federal prison.

That reason was rejected by the Eighth Circuit, but, at a new sentencing proceeding, the judge again gave Pepper 24 months, in part because of Pepper’s efforts at rehabilitation since the original sentencing.  After federal prosecutors appealed, that sentence, too, was set aside.  Ultimately, after further proceedings, a new judge gave Pepper 65 months in prison.  He had already served the original 24-month sentence, so was ordered back to prison to serve the additional 41 months.

After finishing his initial sentence, Pepper had enrolled in college, had married and become a stepfather, and was working as a supervisor of the night crew at a Sam’s Club retail store.   After the new, longer sentence was imposed, Pepper appealed the case to the Supreme Court, gaining review.

Once Pepper’s lawyers and Ciongoli file briefs on the merits, the case will be scheduled for oral argument.  If Justice-designate Elena Kagan is on the Court when the case is considered, she presumably will not take part, since she was counsel of record for the government in the case in her post as U.S. Solicitor General.

Yesterday, Senator Richard Lugar of Indiana became the second Republican to announce that he will vote in favor of Elena Kagan’s confirmation.  In so doing, he joins Senator Lindsey Graham, who voted for Kagan when the Senate Judiciary Committee endorsed her nomination on Tuesday.  Roll Call, Warren Richey of the Christian Science Monitor, and Julie Hirschfeld Davis of the Associated Press (via the Washington Post) all report on his announcement.

In his column for the Washington Post, David Broder predicts that, if Kagan is confirmed, a third woman on the Supreme Court may substantially change the way in which the Court operates.  Broder draws an analogy to changes brought to the journalism profession by increasing numbers of female reporters in the 1970s and ‘80s.

With a final vote on Kagan still days away, much of the Supreme Court news today focuses on repercussions of this Term’s decisions.

In response to the Court’s decision in United States v. Stevens, striking down a federal statute criminalizing the sale of videos depicting animal cruelty, the House of Representatives yesterday nearly unanimously passed a second version of the bill that is drafted more narrowly to prohibit the sale of videos that show animals being burned, impaled, suffocated, or drowned, while allowing films that depict hunting, trapping, and fishing.  The Los Angeles Times and Associated Press have coverage.   In the Huffington Post, Wayne Pacelle – the president of the Humane Society – applauds the bill, noting that it passed by a higher margin than the original version.

Conrad Black, the former chairman of Hollinger International, was released from prison yesterday.  A federal judge had granted his request for bail earlier this week in light of the Court’s ruling in his case, Black v. United States, which narrowed the scope of the law originally used to convict him of fraud.  SCOTUSblog, Bloomberg (update to an earlier story), the Los Angeles Times, the Associated Press, and the WSJ Law Blog all have coverage of his release.  Martha Neil at the ABA Journal reports on Black’s hefty legal fees to date.

Yesterday on SCOTUSblog, Lyle Denniston posted the oral argument calendar for the Court’s October 2010 sitting.  Kevin Cole at Crim Prof Blog picks out the arguments most likely to interest criminal law and procedure enthusiasts.

Briefly:

• Earlier this month we linked to an American Constitution Society panel on the future of Miranda rights after the consequential Miranda rulings this Term.  As a follow-up on ACSblog, ACS interviews Michael German, a counsel for the American Civil Liberties Union, about Miranda.
• The Appellate Daily blog posts the letter that Kagan wrote – in response to a request from Senator Graham – praising Miguel Estrada’s judicial qualifications.  Graham read excerpts from the letter during the Committee vote on Kagan’s nomination on Tuesday.
• Justice Scalia is scheduled to make a speaking stop at Montana State University on July 28, according to an announcement on the college’s website.

Former Canadian and U.S. media magnate Conrad M. Black, who won at least a partial victory in the Supreme Court in his criminal case in June, was ordered released “forthwith” from a federal prison in Florida on Wednesday, with bail set at $2 million.  His 78-month prison sentence — he has so far served more than 28  months — will be interrupted while a federal appeals court reviews his case.  The case will be one of the first to test what authority remains for federal prosecutors when they press charges for “honest services” fraud.

In a ruling on June 24 (explained in this post), the Supreme Court sent the Black case back to the Seventh Circuit Court, without itself overturning his convictions for fraud and obstruction of justice for an alleged corporate compensation scheme.  On Monday, the Circuit Court ordered his release while the appeal goes forward.   The Circuit Court acted based upon filings by Black’s attorneys seeking bail, and by federal prosecutors, resisting bail; the bail papers are here, here and here.

U.S. District Judge Amy J. St. Eve of Chicago, who was the trial judge in the case, followed up the Circuit Court’s release order by setting conditions on Black’s freedom and then ordering his release.   He is to appear in her Court on Friday for a status hearing.  (The order specifying conditions  is not yet available.)  UPDATE: While Black is free, he must stay in the U.S. (although the judge held off ruling on whether he could travel to Canada), he cannot apply for a new passport (his has expired), he cannot have a gun, and he had to post the $2 million bond.  The bond was posted immediately.

Black’s case was one of three decided by the Justices on the same day, resulting in significant limitations on federal prosecutors’ power to charge mail or wire fraud, when the claim is that an individual deprived some entity or some person of a duty to provide “honest services.”   The Court made clear that, hereafter, the law can only be used to attack bribery or kickbacks.

In Black’s case, the Court noted that the charges against him did not involve bribes or kickbacks, so it ruled that a jury instruction by Judge St. Eve had been undercut; the judge had told jurors that they could convict Black and other executives of Hollinger International, a newspaper chain, if the executives were found to have misused their positions for private gain or had violated their duty of loyalty to Hollinger.

Still, the Court said that lower courts were free to consider whether the flawed instruction was a “harmless” error.  It also said that Black could raise in lower courts his argument that the evidence to support “honest services” fraud had spilled over to taint his conviction for obstruction of justice.

In seeking bail while the Seventh Circuit considers those issues, Black’s lawyers said that “the issue that now remains for this [Circuit] Court is not whether the government inroduced legally sufficient evidence to secure a conviction absent the error [in the jury instructions] — that is, whether ‘the case could have been won without the error.”  The issue, rather, is wheher the guilty verdict could be traced to that error, they argued.

“In this trial,” the bail memorandum argued, “the jury resoundingly rejected the great bulk of the government’s charges, so it is not remotely probable that the few counts that survived the jury’s deep skepticism of the government’s case to produce this verdict were untainted by the fact that the jury was told that it could convict defendants for conduct that isn’t a crime.”

Prosecutors countered that “there is no substantial question” that the erroneous jury instruction on “honest services” was harmless.  The evidence that supported conviction for “honest services” fraud, the prosecutors contended, “was co-extensive” with charges that Black also committed money fraud.  In fact, they argued, the Circuit Court in previously upholding Black’s conviction against a challenge “has already explained” that the erroneous instruction was harmless.  “Nothing in the Supreme Cout opinion affects that reading of the record,” the government memorandum summed up.

The Circuit Court had sent the case back to Judge St. Eve solely to set conditions on Black’s release.  She held a prompt hearing, and then acted to carry out his release from the federal prison near the small Florida town of Coleman.

The Circuit Court has indicated that it intends to move with dispatch to consider the remaining issues.  In its release order, the Circuit panel said lawyers would be granted no extra time — beyond the 21 days specified by a court rule — to file statements on what issues they want the panel to explore now.

Yesterday the Senate Judiciary Committee voted to endorse Elena Kagan’s nomination to the Supreme Court. The final tally was thirteen “aye”s to six “nay”s, with Senator Lindsey Graham (R-SC) joining the committee’s twelve Democrats to vote in Kagan’s favor. Today’s editions of USA Today, the Los Angeles Times, the Wall Street Journal, the Christian Science Monitor, the New York Times, the Boston Globe, and the Washington Post all have coverage of this step toward confirmation, as do NPR, Slate, CNN, and Politico. C-SPAN has video coverage of the nearly three-hour committee meeting.

In his Washington Post column, Dana Milbank praises Senator Graham’s explanation of his vote as a “penetrating indictment of the tribal logic that has overtaken his colleagues.” Even so, the vote “ensures [Graham] will face a serious primary challenge in 2014,” writes Chris Cillizza on the Washington Post’s The Fix blog. Meanwhile, the Wall Street Journal’s Washington Wire blog reports on a letter of support for Miguel Estrada that Kagan wrote in response to Senator Graham’s questions about Estrada during her hearings.

Revisiting questions about whether, if confirmed, Kagan should recuse herself from hearing challenges to health-care reform legislation, the editorial board of the Wall Street Journal opines on “how extraordinary it is that she would have played no role at [the Department of] Justice even in discussing the cases.” And at Balkinization, Jack Balkin characterizes the Kagan confirmation battle as reflecting a shift in conservatives’ rhetoric:  although they have previously insisted that judges should exercise “judicial restraint,” he asserts, they now focus on “fidelity to the law” as a result of “the changing mix of constitutional issues before the federal courts.”  (ACSblog also has a post discussing how “Republicans are looking for the Supreme Court to substantially limit the sweep of the Constitution’s commerce clause.”)

In another opinion piece in the Wall Street Journal, Pete Hegseth – an Iraq war veteran who testified against Kagan’s confirmation – argues that Kagan “does not belong on the Supreme Court” because she “used her position of authority as dean of Harvard Law School to impede, rather than empower, the warriors who fight, and have fallen, for our freedoms.” An opinion piece in the Christian Science Monitor criticizes Kagan for a different reason: Thomas Bowden of the Ayn Rand Center for Individual Rights contends that Kagan “rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights” and instead “adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.”

Briefly:

• In his Sidebar column for the New York Times, Adam Liptak focuses on a single sentence in Justice Ginsburg’s opinion in Christian Legal Society v. Martinez, in which she wrote – discussing laws affecting gays and lesbians – that “[o]ur decisions have declined to distinguish between status and conduct in this context.”  That sentence, Liptak suggests,  could be “both a time bomb and a tea leaf that [may] figure in litigations concerning same-sex marriage on two coasts.”
• The New York Times reports that immigrants whose deportations would now be invalid under the Court’s decision in Carachuri-Rosendo v. Holder have “no way to turn that legal vindication into a chance to come home.”
• NPR’s Ari Shapiro has a story about the President’s judicial nominations “languish[ing]” in the Senate. He reports that “the Senate has confirmed only 37 of Obama’s judicial nominees, a little more than half as many as during the same period of time under President Bush.”
• The Hartford Courant has a report on a Connecticut eminent domain dispute between a developer and the city of Branford. The developer will soon ask the Supreme Court to review the case.
• Constitutional Law Prof Blog has a post on a new biography of Justice Sonia Sotomayor.
• And finally, at the Huffington Post, humorist Tim Siedell asks whether we can “really afford to hire another Supreme Court Justice in this economy.”

By a vote of thirteen to six, the Senate Judiciary Committee today approved Elena Kagan’s nomination to the Supreme Court. With the exception of Republican Senator Lindsey Graham, who voted for Kagan, the vote hewed closely to party lines. Coverage is available at SCOTUSblog, the Los Angeles Times, CBS News, NBC News, AFP, The Caucus Blog of the New York Times, and the WSJ Law Blog.

The vote by the committee, which is made up of twelve Democrats and seven Republicans, came as no surprise.  As MSNBC’s Carrie Dann and Jason Strachman Miller note, committee members generally appeared ready to divide along party lines. Prior to the vote, as CNN reported earlier today, Graham had indicated that he would support Kagan’s nomination, while at Bench Memos, Republican Senator Tom Coburn explained his opposition. Pre-vote coverage is available from the Hill, the BBC, CNN, NPR, and the AP.

Remarking on the Senate as a whole, USA Today’s editorial board laments the lack of bipartisan support for Kagan, deeming the arguments made by her detractors “unimpressive.” Jess Bravin discusses one such argument – Kagan’s role in a policy statement issued by the American College of Obstetricians and Gynecologists regarding partial-birth abortion –at the WSJ’s Washington Wire Blog. At the San Francisco Chronicle Politics Blog, Bob Egellko discusses Republicans’ claim that Kagan’s interpretation of the Commerce Clause permits unduly far-reaching exercises of government power. The editorial board of the New York Times sharply criticizes that claim, arguing that “[a] vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century.”

If Kagan is confirmed, she may need to decide whether to recuse herself from hearing challenges to health-care reform legislation. The Christian Science Monitor’s Warren Richey summarizes Kagan’s responses to questions from Republican Senators on her role in defending the legislation:  in written submissions made yesterday, she told them that as Solicitor General, she “attended at least one meeting where the existence of [litigation challenging the legislation] was briefly mentioned, but none where any substantive discussion of the litigation occurred.” As Bloomberg and the AP also both report, Kagan told Senators that she would decide on a “case-by-case” basis whether to recuse herself from controversies in which the law was at issue.   At Bench Memos, Carrie Severino writes that the “utter implausibility of the idea that she never discussed of any issues surrounding health care is mitigated only by the calculated way she has approached her career thus far.”

At Concurring Opinions, Gerard Magliocca posts an abstract of his upcoming paper, which “looks at whether the Court will invalidate the individual mandate by examining how other transformative laws were treated under similar political circumstances.” In an opinion piece for Bloomberg, Amity Shlaes argues that “[i]nstead of a congressional hearing about Kagan, Congress should hold a hearing about past Supreme Court rulings that will shape many of [the Court’s] future opinions.”

At least one other case that may soon reach the Court on the merits is also attracting attention. SCOTUSblog’s Lyle Denniston discusses a cert. petition recently filed by the U.S. government in which the “Obama Administration has asked the Court to give officials wide-ranging legal immunity for enforcing . . . a law that permits the arrest and detention of an individual sought as a ‘material witness.’”

Coverage of the Court’s recently decided cases continues as well.  In Black v. United States, the Court cast doubt on the “honest services” conviction of Conrad Black; Bloomberg and the AP report that Black was recently granted bail. At the Opinionator Blog of the New York Times, Stanley Fish discusses the Court’s opinion in Christian Legal Society v. Martinez. He argues that “[u]nder cover of ‘neutrality,’ Hastings, with the [Court’s] approval, is imposing the goals and ideology of liberal multiculturalism on the very diverse members of the law school’s community.” At the Huffington Post, Lisa Schirch highlights what she describes as four “false assumptions” undergirding the Court’s decision in Holder v. Humanitarian Law Project, which upheld a statute prohibiting the provision of “material support” to terrorist organizations. Finally, Sentencing Law and Policy’s Doug Berman writes that the Court’s decision in Dillon v. United States, a sentencing guidelines case, may prompt the U.S. Sentencing Commission to make retroactive its “new defendant-friendly amendment to the criminal history sentencing guidelines.”

Briefly:

• First One @ One First’s Mike Sacks reprints excerpts from an article discussing Justice Potter Stewart’s recently released papers, pointing out a possible tension between the papers and The Brethren.
• The WSJ Law Blog’s Jess Bravin discusses statistics that “[identify] which [J]ustices speak first, longest and most often” at oral argument.
• Ashby Jones, also at the WSJ Law Blog, highlights portions of Justice Thomas’s recent speech at the Utah State Bar’s 2010 summer convention.
• The AP (at WNCT) reports that “Supreme Court officials say they’re looking into a complaint by a teacher who says she and her students were prevented from praying outside the court building in Washington.”