Evergreene Digest A Journal of Progress for the Rest of Us

Three recently filed cert. petitions defend a tax credit for donations to school tuition programs, ruled unconstitutional by the Ninth Circuit, that has disparately benefited donors to religious programs.  One is Garriott v. Winn; the second and third are both captioned Arizona Christian School Tuition Organization v. Winn.

Another recently filed but unrelated petition, Moore v. Hosemann, arises out of the unsuccessful attempt by Brian Moore, the Socialist Party presidential candidate in 2008, to register his name for the Mississippi ballot that year.

The petitions and questions presented in all four cases follow the jump.  The briefs in opposition have not yet been filed.

Title: Moore v. Hosemann
Docket: 09-982
Issues: (1) Whether Federal Rule of Civil Procedure 4(e)’s provision for service of process on individuals applies to official-capacity actions filed against state officers; and (2) whether the court of appeals erred in abstaining from deciding the merits of petitioner’s constitutional claim rather than seeking certification by the highest state court.

• Opinion below (5th Circuit)
• Petition for certiorari

Title: Arizona Christian School Tuition Organization v. Winn; Garriott v. Winn
Docket: 09-987; 09-988; 09-991
Issues: (1) Whether respondents have taxpayer standing when they cannot allege that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds; and (2) whether a tax credit that advances the legislature’s legitimate secular purpose of expanding educational options for families unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organizations than nonreligious ones.

• Opinion below (9th Circuit)
• Petition for certiorari (09-987)
• Petition for certiorari (09-988)
• Petition for certiorari (09-991)

Two noteworthy petitions were recently filed: Microsoft v. Lucent Technologies, which challenges the evidentiary standards in patent infringement trials; and Stolaj v. Holder, which disputes removal proceedings initiated against two noncitizens.

Briefs in opposition have not yet been filed, but the petitions and their questions presented follow the jump.

Title: Microsoft v. Lucent Technologies
Docket: 09-1006
Issues: (1) Whether a jury verdict of patent infringement can stand when it is supported only by speculative evidence and lawyer argument, or whether the standards for entry of judgment as a matter of law that apply in all other federal cases should apply equally in patent cases; and (2) whether a new trial is required in a patent infringement case, as in all other cases, when the verdict is found to be contrary to the weight of the evidence.

• Opinion below (Federal Circuit)
• Petition for certiorari

Title: Stolaj v. Holder
Docket: 09-1014
Issues: (1) Whether the government may initiate removal proceedings against a noncitizen after the expiration of the five-year limitations period in 8 U.S.C. § 1256(a) based on a noncitizen’s ineligibility for permanent resident status at the time it was granted; and (2) whether the due process rights of noncitizens are violated in removal proceedings when the government relies on hearsay evidence without making an effort to call the declarant as a witness or allowing the noncitizen to subpoena and cross-examine that declarant.

• Opinion below (6th Circuit)
• Petition for certiorari

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference on Friday, March 19.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

Title: Moran v. United States
Docket: 09-392
Issues: (1) Whether Federal Rule of Criminal Procedure 32(i)(1)(C)–permitting a defendant to comment on “matters relating to an appropriate sentence”–entitles a defendant to be notified prior to the pronouncement of sentence that sex offender special conditions of supervised release are contemplated; (2) whether 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3’s requirement of a reasonable relationship between special conditions of supervised release and a defendant’s offense of conviction, history, and characteristics and the purposes of sentencing is satisfied when sex offender special conditions are imposed based on a single sex offense in the remote past; and (3) whether a special condition of supervised release prohibiting internet access without permission is an undue deprivation of liberty under the previous two rules when there is no connection between the internet and the offense of conviction or any prior alleged wrongdoing.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition

Title: Kentucky v. Cardine and Curry
Docket: 09-419
Issue: Whether the Double Jeopardy Clause bars the retrial of a defendant after the trial court sua sponte declares a mistrial absent manifest necessity and the defendant does not object prior to the actual discharge of the jury.

• Opinion below (Supreme Court of Kentucky)
• Petition for certiorari
• Brief in opposition

Title: Beard v. Thomas
Docket: 09-527
Issue: (1) Whether the respondent was prejudiced in his criminal trial by the absence of supposedly mitigating evidence, when the mitigating nature of that evidence is disputed, when he refused to allow any mitigation evidence, and when none of this supposedly favorable evidence has even been subject to a hearing or cross-examination; and (2) whether the Third Circuit unlawfully failed to apply the deference standard, when both the courts below rejected the respondent’s ineffectiveness claim on the merits.

• Opinion below (3d Circuit)
• Petition for certiorari
• Brief in opposition

Title: Kiyemba v. Obama
Docket: 09-581
Issues: (1) Whether a federal court exercising its habeas jurisdiction may require the executive to provide thirty days of advance notice of a proposed transfer of petitioners–all of whom are conceded not enemy combatants–from Guantanamo to another location in order to allow the court to adjudicate any claims petitioners may have opposing the transfer; and (2) whether a federal court may issue an All Writs Act injunction to protect its jurisdiction only when the separate standards for an injunction under Federal Rule of Civil Procedure 65 have also been met.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners’ reply
• Amicus brief of Legal Historians and Habeas Corpus Experts

Title: Townes v. Jarvis
Docket: 09-729
Issue: Whether the holding of Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002)–which implicitly recognized that those subject to discrimination will rarely, if ever, be able to allege in the complaint specific facts that would, if proven, establish the intent of others who have discriminated–is still good law after the Supreme Court decision in Ashcroft v. Iqbal.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Kasten v. Saint-Gobain Performance Plastics Corp.
Docket: 09-834
Issue: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?

• Opinion below, opinion below denying rehearing (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

The Court has re-listed the following cases from previous editions of Petitions to Watch for the conference of March 19, 2010.  If any other petitions are redistributed between now and the conference, we will add them below as soon as their redistribution is noted on the docket.

• Connick v. Thompson (09-571): Originally conference of 2.19.10

CORRECTION: The watch list above originally included the petition Ryan v. Nash (09-686), which was mooted due to the respondent’s death.

Below, Keisha Stanford, a law student at Stanford, discusses Monday’s opinion in Milavetz, Gallop, & Milavetz v. United States (08-1119).  For background on the briefs and oral argument in the case, see the Milavetz SCOTUSwiki page.

On March 8, 2010, in an opinion by Justice Sotomayor, the Court held that attorneys who provide bankruptcy assistance to “assisted persons” are “debt relief agencies” (DRAs) for purposes of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).  Moreover, the Court held, the two other provisions of the BAPCPA at issue in the case – Section 526, which prohibits bankruptcy professionals from advising clients to incur more debt in contemplation of bankruptcy, and Section 528, which creates advertising disclosure requirements – do not violate the First Amendment as applied to attorneys.

Noting that some forms of bankruptcy assistance may only be provided by attorneys, the Court reasoned that, under a plain reading of the statute, attorneys are DRAs whenever they provide the services outlined in the Act.  And in enumerating specific exceptions to the definition of DRA, the Court explained, Congress provided no indication that it intended to exclude attorneys.  Similarly, the Court rejected the attorneys’ argument that including them within the definition of DRAs would impose upon the authority of the states, holding instead that Congress and bankruptcy courts have authority to oversee attorney conduct in an area of substantial federal concern.

In concluding that Section 526 is constitutionally valid as applied to attorneys, the Court rejected the interpretations proffered by both sides.  Instead, it held, Section 526 only prohibits DRAs from affirmatively advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose.  Regarding the provision as an additional safeguard against the practice of loading up on debt prior to filing for bankruptcy, the Court emphasized that Section 526 is not triggered whenever an attorney is merely aware of the possibility of bankruptcy.  Thus, attorneys remain free to “tal[k] fully and candidly about the incurrence of debt in contemplation of filing a bankruptcy case.”  The Court’s construction also foreclosed the attorneys’ challenge to Section 526 as impermissibly vague, because it did not link the test to any notion of abuse.  However, the Court did note that the concept of “abuse” could be adequately defined by making reference to its use in other provisions of the Bankruptcy Code.

Finally, the Court rejected the attorneys’ as-applied challenge to Section 528’s advertising disclosure requirements.  The Court held that because the challenged provisions imposed a disclosure requirement (as opposed to an affirmative limitation on speech), the “reasonably related” test established in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) was the appropriate standard of review.  Under that test, the requirements were permissible for three reasons: 1) they are intended to prevent the deception of consumer debtors; 2) they entail only an accurate statement identifying the advertiser’s legal status and the character of the assistance provided; and 3) they do not prevent DRAs from conveying additional information.  Justice Thomas concurred in the judgment but declined to join this portion of the opinion.  In a separate opinion, he questioned the lower standard of scrutiny applied by the Court to cases involving disclosures of commercial speech and noted his willingness to revisit the Zauderer holding should an appropriate case arise.  Justice Scalia joined all of the Court’s opinion except for a footnote discussing BAPCPA’s legislative history, and he filed a separate opinion regarding the use of legislative history.

The Chief Justice’s public criticism of the State of the Union address reached television news yesterday.  In a panel on FOX News, Rick Klein of ABC suggests that the President “knew exactly what he was doing when he decided to take on the” Citizens United decision, while syndicated columnist Charles Krauthammer calls the President’s remarks at the State of the Union “a breach of protocol and decorum” and “an insult.” Taking questions on C-SPAN, David Savage of the Los Angeles Times suggests that Justice Alito was reacting to the president’s assertion that the ruling overturned “a century of law”—contrary to the view Alito took in the Citizens oral argument that the laws to be overturned were more recent.

George Will, in his column in the Washington Post, makes the case that no one should attend the State of the Union, given that the Constitution does not require a public address and that, in Will’s view, the event “gives presidents delusions of omnipotence” that damage the balance of power between the three branches.  On the other side of the debate, Frank James at NPR’s The Two-Way blog argues that the justices – who, in his view, “are generally treated like the immortals on Mt. Olympus” – should attend the State of the Union to “face the music” before the public for the Court’s decisions.

Right after the Chief Justice’s remarks, Nina Totenberg of NPR described the history of Justices attending (or failing to attend) the State of the Union and of past addresses criticizing the Court.

Nathan Koppel at the WSJ Law Blog announces “Citizens United, Round Three” after Democratic Senate Majority Leader Harry Reid pointedly criticized the Chief Justice: “’Do you think John Roberts knows or cares how people get elected?’ Reid said, adding that the justices on the court lack understanding of the practical impact of their decisions.

Commentary on the impact of the Citizens ruling continues.  Doug Kendall of the Constitutional Accountability Center writes at the Huffington Post that the Citizens United decision has “really changed everything, at least in terms of the debate over the future of the courts”; among other things, he notes, President Obama has picked up the pace of judicial nominations.  In light of the Citizens ruling, John C. Bogle at BusinessWeek urges corporations to adopt a formal requirement that seventy-five percent of their shareholders approve their political expenditures.

In her online column for the New York Times, Linda Greenhouse discusses what she characterizes as the “impressive consistency” displayed by Justice Thomas with regard to his view the Eighth Amendment applies to the cruel and unusual nature of sentences alone, and does not extend to conditions within the prison.

Robert Barnes puts Justice Ruth Bader Ginsburg on the record at the Washington Post as one more judge calling for the end of state judicial elections. Ginsburg made those remarks on a panel at the recent meeting of the National Association of Women Judges.  Also on the panel was Justice Sonia Sotomayor, who told audience members that since her arrival on the Court she had been most surprised by the collegiality that she found.

The Massachusetts Supreme Court on Wednesday upheld state gun trigger-lock laws.  The Court’s opinion deemed the 1876 Cruikshank case, in which the U.S. Supreme Court declined to apply the Second Amendment to restrict state gun control laws, “the law of the land until the Supreme Court decides otherwise, and we are therefore bound by them.’’ The Boston Globe reports on the ruling, while the New York Times editorial board endorses it.

ACSblog provides an overview of an issue brief released on Tuesday regarding life without parole for juveniles – an issue before the Court this Term in Graham v. Florida and Sullivan v. Florida.  The brief’s authors conclude that life imprisonment without the possibility of parole “has little support in behavioral scientific research, does not strengthen public safety, and runs counter to international norms.”

Briefly:

• Gerald Magliocca at Concurring Opinions reflects on what standards should be used to establish whether the judging philosophy of a judicial nominee is “outside the mainstream.”
• On this blog, Kevin Russell writes about the Court’s call for the views of the Solicitor General in two ERISA petitions arising from the case Amara v. CIGNA Corp.
• At the Legal Theory Blog, Lawrence Solum flags a recent paper by Professors David Stras and James Spriggs on when the Court issues plurality opinions (the paper is available online here).
• At the WSJ Law Blog, Jess Bravin has a post on the McDonald’s menu preferences of several current and past Justices, elicited in response to a query by a prankster posing as a ten-year-old child.  Responses ranged from those of Justices Ginsburg and Souter, who described themselves as (at best) infrequent visitors of the fast food chain, to that of retired Justice Blackmun, who responded that “almost anything they put out is acceptable.”

On Monday the Court called for the views of the Solicitor General on two petitions arising from the same ERISA case, Amara v. CIGNA Corp.  Both petitions raise questions regarding the proper remedy for misleading or inadequate disclosures relating to changes in a pension plan.

Background

In 1998, CIGNA changed its pension plan from a “defined benefit” plan (called “Plan A”) to a “cash balance” plan (called “Plan B”).  As required by ERISA, CIGNA gave notice to its employees.  A trial court subsequently found that the disclosures were inadequate and, in some respects, misleading, in violation of the statute.  In particular, the court found that although the change could have the effect of lowering the level of benefits for some employees, CIGNA represented that the changes would maintain or improve benefit levels.

In a remedial order, the district court ordered CIGNA to recalculate all of the workers’ benefits using a so-called “A+B” approach, under which the workers would receive all of their Part A benefits previously accrued plus additional benefits under Part B as they accrued.  The court declined to order CIGNA to reinstate Part A in full, and it declined the plaintiffs’ request for additional restitution for past due payments.

The Second Circuit summarily affirmed.

The Petitions

Both parties petitioned for certiorari.  In No. 09-804, CIGNA has asked the Court to decide whether the district court was allowed to order class-wide relief without requiring any individualized showing that particular plaintiffs relied upon or were prejudiced by the disclosure violations.  CIGNA argues that the courts of appeals are divided three ways over the question.  Six circuits, it says, require a showing of reliance or prejudice; three hold that no such showing is required; and the Second Circuit requires the district court to find that there was “likely harm” caused by the violation.  CIGNA further argues that the decision below was wrong, allowing windfalls to employees who were not in fact harmed by disclosure violations and thereby discouraging employers from offering benefit plans in the first place.

In No. 09-784, the employees have petitioned to challenge the district court’s refusal to expand relief further to require CIGNA to revert to its original Plan A and to order restitution.  The question of the scope of the district court’s remedial authority in ERISA cases, they argue, is already before the Court in Conkright v. Frommert, No. 08-810, which was argued in January.  As a result, the employees ask the Court to hold their petition until Conkright is decided, for a possible remand in light of that decision.

The CVSG

On Monday the Court asked the Solicitor General to weigh in on both petitions.  The Court’s decision to ask for the SG’s views on the employees’ petition – which simply asks for a hold – is a little unusual.  It may indicate that some on the Court wonder whether the petition warrants plenary review.  But it may just as well be that because the Court decided to ask for the SG’s view on CIGNA’s petition (which is not particularly surprising) it concluded that it was worth including both petitions in the invitation (particularly since CIGNA has argued that the issues in this case and Conkright are sufficiently distinct that a hold is unwarranted).  (Justice Sotomayor took no part in the consideration of either petition.)

There is no due date for a response, but the SG likely will attempt to file her brief in time for the Court to rule on the petitions before the end of the term.

Seven different cert. petitions by or against tobacco companies, growing out of a single D.C. Circuit opinion last spring, were filed at the Court last month.  All concern penalties imposed on the companies under the Racketeer Influenced and Corrupt Organizations Act (RICO).  Lyle posted earlier on these cases here.

The briefs in all of the petitions follow the jump.

Questions presented among the seven petitions:

1. Whether a group of corporations can constitute an association-in-fact enterprise under RICO.

2. Whether a corporation can be found to have the necessary specific intent to defraud in a RICO case without evidence that any particular individual in the corporation had such specific intent.

3. Whether the fraud statutes, the First Amendment, and due process permit speech to be deemed fraudulent when (a) the speech addressed important public controversies and potential regulation, rather than being designed to deprive consumers of money or property, (b) there was no evidence or finding that the speech was material to a reasonable consumer, (c) the speech constituted opinions regarding ongoing scientific disputes or statements that were undisputedly true under at least one reasonable interpretation, (d) there was no allegation or finding that any individual associated with the defendants said anything he believed to be false or intended to defraud, and (e) much of the speech is subject to immunity under antitrust laws.

4. Whether 18 U.S.C. § 1964(a) of RICO categorically bars a district court from ordering disgorgement of ill-gotten gains as well as other equitable relief, such as smoking cessation and public-education remedies, designed to redress the continuing consequences of RICO violations.

5. Whether federal courts may exercise injunctive jurisdiction under RICO and Article III of the Constitution when there is no statutory “enterprise” and any reasonable likelihood of future violations has been extinguished by, among other things, extensive federal tobacco legislation.

6. Whether a court of appeals is required under the First Amendment to undertake independent appellate review when a district court has found that speech is not constitutionally protected because it is fraudulent.

Title: Philip Morris USA, Inc. v. United States
Docket: 09-976

• Petition for certiorari

Title: R.J. Reynolds Tobacco Co. v. United States
Docket: 09-977

• Petition for certiorari

Title: United States v. Philip Morris USA, Inc.
Docket: 09-978

• Petition for certiorari

Title: Altria Group, Inc. v. United States
Docket: 09-979

• Petition for certiorari

Title: British American Tobacco (Investments) Ltd v. United States
Docket: 09-980

• Petition for certiorari

Title: Tobacco-Free Kids Action Fund v. Philip Morris USA, Inc.
Docket: 09-994

• Petition for certiorari

Title: Lorillard Tobacco Co. v. United States
Docket: 09-1012

• Petition for certiorari

Today, the debate continues over remarks made Tuesday at the University of Alabama by Chief Justice John Roberts, who responded to a question regarding President Obama’s criticism of the Court’s Citizens United ruling by noting that although anyone is free to criticize the Court, the atmosphere at January’s State of the Union Address was “very troubling.”  Ashby Jones at the WSJ Law Blog reports on the Chief Justice’s comments, while at the Huffington Post, James Sample examines both the Court’s ruling in Citizens and the Chief Justice’s decision to express his displeasure with President Obama’s assessment.  Paul Horwitz, writing for PrawfsBlawg, also recaps the University of Alabama speech and suggests that the tradition of the justices attending the State of the Union address be replaced by “an annual private dinner for the Court at the White House.”  At the Washington Post, Robert Barnes and Anne Kornblut observe that the President and the Court have “waded again into unfamiliar and strikingly personal territory,” while at the Post’s Post-Partisan Blog, Eva Rodriguez jokes that perhaps Chief Justice Roberts should sell his State of the Union ticket next year.

Characterizing the dispute as “ridiculous” and arguing that the administration seems to “think it should always have the last word,” Jan Crawford opines at CBS that the president might be working against his own interests by challenging the Court.  At the Wall Street Journal, Jess Bravin reports on the reaction of Senate Majority Leader Harry Reid to the Chief Justice’s remarks, while Fox News reports that the Chief Justice’s remarks garnered support from Republican Senators Orrin Hatch and Jeff Sessions.  Dahlia Lithwick, writing for Slate, chides Chief Justice Roberts for “lobbing long-distance partisan attacks,” a sentiment seconded by Post-Partisan’s Jo-Ann Armao.  ACSblog and Above the Law also have coverage of the Chief Justice’s remarks, and a podcast of his speech is available via How Appealing.

JURIST reports on a hearing held Wednesday by the Senate Judiciary Committee to address new legislative efforts directed at limiting the effects of the Citizens United ruling. Following the hearing, the Constitutional Accountability Center released a report (available at ACSblog) on corporate personhood and the Constitution.  At its own blog, the Center for Competitive Politics also recaps some highlights from the hearing.

Continuing the post-game analysis of McDonald v. Chicago, Tony Mauro reports for Law.com on the coalition of academics and advocacy groups – both liberal and conservative – which agreed that the petitioners should pursue the Privileges or Immunities Clause strategy; describing the Court’s reaction to the strategy at oral argument, Mauro observes that “[i]n the space of a dramatic few minutes, an entire movement in the law seemingly crashed and burned.”

At Vanity Fair, Andrew Cohen has a piece on Kansas-based preacher Fred Phelps, one of the respondents in Snyder v. Phelps, in which the Court granted cert. on Monday.  Characterizing Phelps’s speech as “cruel,” Cohen predicts that the Court will reinstate a monetary award granted to the serviceman’s family after they convinced a trial court that they were unable to avoid Phelps’s message while attending the funeral.

Effective February 16, 2010, the Court adopted revised Rules of the Supreme Court.  A complete copy of the updated rules can be found here.   The revisions, which are summarized in this memorandum from the Court,  include:

- A reduction in the number of words allowed for a merits reply brief — from 7500 to 6000.

- Changes to Rules 26 and 34.1 clarify what is to be included on the cover of the Joint Appendix and require the counsel of record to include an e-mail address on the cover of every document filed.

- An addition to Rule 34 requires a descriptive index of the appendices and citations to the United States Code whenever available.

- Revisions to Rule 37 clarify that only an attorney admitted to practice before the Court is permitted to file an amicus curiae brief and that extensions of time for amicus curiae briefs at the merits stage will not be entertained. The revised rule also clarifies that the ten-day notice requirement for amicus curiae briefs at the certiorari stage does not apply at the merits stage.

- Other minor changes addressed in the Court’s memorandum.

Even though we’re only halfway through the week, it has already been an interesting week at the Court.

On Monday, the Court handed down two opinions in cases involving the Speedy Trial Act and attorney advice in bankruptcy proceedings.

Let’s start with Bloate v. U.S. You probably know that a criminal defendant has a right to a speedy trial, both under the Sixth Amendment (a provision of the United States Constitution) and under the Speedy Trial Act (a federal law enacted by Congress).  In Bloate, the Court had to decide just how “speedy” was speedy enough under federal law.  As Scott Street explained in his post on Tuesday, the Court invoked its justice sword in holding that time spent preparing pretrial motions can only be excluded from the 70 days allowed to bring a criminal defendant to trial if excluding the days from the day count serves the ends of justice.

Here’s what’s ordinary about Bloate:  The Court is called upon almost daily to interpret an act of Congress, or a federal law.  Many statutes contain ambiguous terms (What is a “father,” for example?  Or a “motor vehicle”? Or, as we will see below in my discussion of Milavetz, a “debt relief agency”?), and one of the functions of the court system is to interpret just what those terms mean.  When a federal statute is really ambiguous, the federal courts of appeals may disagree about what the statute means.  That’s generally when the Supreme Court will step in, because it wants to ensure that a federal statute is interpreted and applied the same way in every part of the United States.

Unusual in Bloate?  Well, eight circuit courts agreed on just how the Speedy Trial Act prohibited a criminal defendant from creating a delay to try to stop the speedy trial clock from ticking (two circuit courts disagreed). The Court rejected the interpretation of the majority of circuit courts, however, invoking what we call the “canons of construction” – or procedures for interpreting statutes.  The Court decided that, to give effect to a provision referring to excluding delays in order to serve the ends of justice, it had to read other provisions of the statute narrowly.  Why?  Because the canons of construction tell us that every word in a statute is supposed to mean something, so a court needs to construe a statute in a way that gives meaning to every word.

What will happen now?  Well, the statute is still pretty confusing, even for lawyers and courts who deal with it all the time.  In cases like this, where statutory language is quite unclear, one choice Congress has it to rewrite (“amend”) the statute.  It would almost certainly do so were it to disagree with the Court’s interpretation of the statute (remember Lilly Ledbetter and the fair-pay act subsequently named after her?), but it might even do so – in an effort to clarify for future litigants -  if it agreed with the Court’s interpretation.

In an interesting bankruptcy decision, Milavetz, Gallop & Milavetz v. United States, the Court held on Monday that lawyers could not advise their clients to incur more debt in bad faith, but they could do so in good faith.  For the Court, Justice Sotomayor explained that a lawyer could legitimately advise clients to go further into debt in anticipation of a bankruptcy if there was a valid reason to do so.  However, attorneys could not advise clients that they could incur unreasonable debt only to discharge it in bankruptcy; such a restriction on legal advice did not violate the First Amendment.  And, of course, attorneys could always discuss with clients the legal ramifications of any course of action – such a conversation would only run afoul of the law were the attorney affirmatively to advise the client to engage in bankruptcy abuse.

An interesting aspect of this case is how it ties into a concept I discussed yesterday , the Roberts Court’s tendency to decide issues narrowly.  The Court avoided finding a free speech violation – a holding which may have started a Constitutional snowball effect – and essentially based its decision on the rules that govern attorney ethics instead.  Because even the First Amendment has exceptions under which the government can limit speech when it has a substantial interest in doing so.  Avoiding bankruptcy fraud would seem to be such a substantial interest.

If you watched the morning news programs on Tuesday morning, you could not have missed mention of Snyder v. Phelps, a case which pits the rights of mourners at a fallen soldier’s funeral against picketers who seek to speak out against homosexuality at the graveside.  More broadly, the case asks whether private persons may be liable for emotional injuries to other private parties when exercising their First Amendment rights to free speech.  The Court granted cert. on the question on Monday; the case will be heard early in the 2010 Term (sometime next fall).

Also on Monday, the Court granted cert. on the issue of whether background checks of federal contractors at a NASA lab violate privacy rights or serve an important governmental interest. Finally, the Court agreed to hear a case involving the legal right to sue by parents whose children have been injured by vaccines.

In a ruling focusing on court power to decide copyright cases, the Supreme Court has provided a second chance — but no final assurance of the outcome — for an $18 million deal designed to settle a massive case over rights to re-publish electronically a vast array of creative works.  The decision last Tuesday in Reed Elsevier, Inc., et al., v. Muchnick, et al. (08-103) returns the settlement dispute to the Second Circuit Court for a new review, presumably on the merits of the settlement itself.  At least one part of the settlement has been vigorously challenged by some authors in lower courts.  (The vote on the case was 8-0; Justice Sonia Sotomayor took no part.)

The ruling, written by Justice Clarence Thomas, resolved only a question of court jurisdiction under the Copyright Act.  The Court expressly declined to offer any views on the merits of the settlement.

The Court concluded that U.S. District Judge George B. Daniels did have the authority to do so when he upheld the settlement more than four years ago.  The settlement had appeared to be scuttled after the Second Circuit ruled in 2007 that the judge lacked jurisdiction to approve the deal, because some of those making claims for payments under the deal had not registered their works before taking part in the case.

On the jurisdictional point, the ruling means that if some owners of copyrights are legally in court because they had registered their works with the Copyright Office before suing, the District Court may go ahead and act on a class-action settlement even though some copyright owners who did not register their creations are also before the court. The register-before-suit provision, Thomas wrote, is not a jurisdictional pre-condition for a judge to approve a class and the terms of a class settlement of a copyright dispute.

Besides overturning the Second Circuit on that point, the Court on Tuesday refused to embrace a second argument for scuttling the settlement — that is, that the database publishers who supported the settlement had changed their legal positions on the jurisdictional question.

The settlement thus now stands where it did in September 2005 with Judge Daniels’ ruling: it has the judge’s approval, but it remains open to renewed challenge before the Second Circuit when the case returns there.  The deal was challenged in that appeal by ten authors who contended that, under a specific provision in the settlement, they might receive lower payments than some other copyright owners and, in fact, might receive no payments at all under the formula they were challenging.

The dissenting judge on the Second Circuit, while arguing that Judge Daniels did have authority to approve, noted with some concern the possibility that class members in that category “are paid little or perhaps nothing.”  The dissenter also said it was “a serious problem” that the settlement did not provide for some protection against favoritism of some authors.  Both of those issues are likely to arise anew when the case goes back to the Circuit Court.

Although the case in the Supreme Court had implications for the scope of copyright protection in the Digital Age, since it involved republishing of the created works on electronic databases, the Justices did not resolve the case in a way peculiar to that context.  The ruling on District Court power under the Copyright Act would have been the same whether or not digital publishing was at stake.

At the same time, however, the decision does reaffirm the power of a federal District Court to approve a “global settlement” of a major copyright dispute — one that seeks to end all future claims for infringement, in return for creation of a fund to pay off the copyright owners in order to compensate them while providing security for those who have re-published the works without permission.  In this case, the publishers had embraced the settlement because they were concerned about major omissions from their databases of the creative works.

The $18 million deal was put together, in difficult negotiations stretching over more than three years, in order to achieve legal peace in the publishing industry.  Nearly forty publishers, which had obtained the authors’ works for initial publication, had entered them in their electronic archives without the consent of the authors.  The deal allowed for restoration of articles previously taken out of those databases, and retention of those still there.

One estimate of the size of the electronic archive at risk in the case was that it included “every published English language work, regardless of where published, that has been on a database since 1997 without the copyright owner’s permissions.”  Some 26,000 publications were said to be covered by the settlement, including nearly three dozen encyclopedias.

With the case now returned to the Second Circuit, payment of the authors from the settlement fund will be delayed at least for months.  It will now be up to the Circuit Court to decide whether to call for new written arguments, or to proceed on its own with judging the ten objecting authors’ complaints about the deal.

Monday the Court called for the views of the Solicitor General in Carmichael v. Kellogg, Brown & Root Services, No. 09-683, a case arising from an auto accident in Iraq.  The petition raises an interesting question regarding application of the political question doctrine to tort suits against military contractors in a combat zone.

Background

The plaintiff, Sergeant Keith Carmichael, was assigned to ride in a fuel truck in a convoy between bases outside of Baghdad.  The convoy was operated by a military contractor, which employed the drivers.  In addition to placing soldiers in the trucks, the military provided escort vehicles to protect the convoy and extensively regulated the details of the trip, including when the convoy would move, its route, how many vehicles would participate, their speed, and the distance between the trucks.  During the convoy, Carmichael’s driver lost control of the truck on an S-curve.  The vehicle went off the road and flipped over.  Carmichael was thrown from the vehicle and eventually pinned under it.  The accident left him in a persistent vegetative state.  The contractor’s subsequent inquiry found that the accident was caused by the driver’s carelessness and excessive speed.

Carmichael’s wife subsequently sued the driver and the contractor in Georgia state court, alleging negligent operation of the vehicle by the driver and negligent hiring, supervising, and training by his employer.  The defendants removed the case to federal court, where the district court dismissed it for lack of jurisdiction under the political question doctrine.

The Eleventh Circuit’s Decision

The Eleventh Circuit affirmed.  It explained that under the political question doctrine, courts lack jurisdiction over cases “which revolve around policy choices and value determinations constitutionally committed” to Congress or the Executive Branch, as well as those in which there is a “lack of judicially discoverable and manageable standards for resolving it.”  It found that both were true in this case.

First, the court of appeals held that the case would require “reexamination of many sensitive judgments and decisions entrusted to the military in a time of war,” ranging from the “decision to utilize civilian contractors in conduct the war in Iraq” to the details of the convoy’s planning and execution.  “The rollover in which Sergeant Carmichael was injured never would have taken place if these basic decisions had not been made.”

Second, the court held that there are no judicially manageable standards for applying traditional tort principles in this context.  A negligence claim requires the jury to decide whether the defendant complied with a standard of care, but – the court concluded – there are no manageable standards for determining a standard of care of military contractors in combat zone.  While judges and juries can rely on “common sense and everyday experience” to decide whether a driver acted reasonably in normal circumstances, they are ill-equipped, the court believed, to decide what constitutes reasonable care in the context of an armed conflict.

Petition and Opposition

Carmichael petitioned for cert., arguing that the Eleventh Circuit’s decision effectively immunizes all private military contractors from liability for injuring American soldiers in combat zones, regardless of how negligent their conduct was.  The petition asserts that no other court has ever dismissed a case against a private entity on political question grounds and that the question is of great importance given the military’s increasing reliance on private contractors.

The petition further insists that the court of appeals was wrong in concluding that a jury would be required to second-guess military judgments to resolve the suit.  Instead, petitioner asserts that the facts would show that the sole cause of the plaintiff’s injuries was the driver’s simple negligence in driving too quickly through the curve; nothing in the rules governing the convoy, petitioner argues, prohibited the driver from slowing down and paying more careful attention to the road.

In their brief in opposition, the defendants argue that the petition alleges no circuit split and that the Eleventh Circuit’s meticulous opinion was consistent with the Supreme Court’s political question precedents.  Only two circuits (the Fifth and, in this case, the Eleventh) have considered the political question doctrine’s application to suits against military contractors in a combat zone, respondents argue, and both found the suits barred.  Moreover, the Eleventh Circuit and district court found, after an exhaustive examination of the facts of this case, that the negligence claim unavoidably required second-guessing military judgments.  If the case were to go to trial, respondents argue, they would defend the suit by showing that the accident was not caused solely by the driver’s lack of diligence and care, but also by decisions – controlled by the military – about the route the convoy took, its speed, and the guidance given to the driver about the upcoming S-curve from the convoy’s military commander.

The CVSG

Monday’s call for the views of the Solicitor General is notable, given the lack of an asserted circuit split.  It likely reflects that at least several members of the Court are concerned about the broad ramifications of the ruling below, whose rationale (particularly on “judicially manageable standards”) would seemingly extend to a broad range of lawsuits against military contractors in Iraq and elsewhere.  Because the plaintiff did not sue the military, the Government has not participated in the case thus far.  The invitation brief will therefore provide the United States an opportunity to weigh in on the basic questions raised, including perhaps the extent to which the Government believes that tort suits against contractors affects the military’s ability to perform its mission in Iraq and elsewhere.

There is no due date for responses to invitation briefs, but it is likely that the Solicitor General will attempt to file a response in time for the Court to rule on the petition before it breaks for the summer recess.

Speaking at the University of Alabama yesterday, Chief Justice Roberts revisited the “exchange” between President Obama and Justice Alito during the State of the Union address in January.  In response to a law student’s question, Roberts described the scene at the State of the Union as “very troubling” and, to some extent, “a political pep rally.”  The Chief Justice’s comments drew a quick response from White House press secretary Robert Gibbs (“What is troubling is that [Citizens United] opened the floodgates for corporations and special interests to pour money into elections—drowning out the voices of average Americans.”) and were declared the “Quote of the Day” by Above the Law.  According to Sam Stein of the Huffington Post, “[t]he push back … from the White House seems almost unprecedented in its directness … Undoubtedly, it’s bound to spur another round of debates over what constitutes proper decorum between the two branches.”  Joan Biskupic at USA Today, David Savage at the L.A. Times, and Jake Tapper at ABC News have the story in full, and Eugene Volokh examines whether the Constitution’s State of the Union Clause might offer the Justices an “adequate excuse” for not attending future addresses.

Newspapers and blogs remain interested in Monday’s trio of cert. grants: NASA v. Nelson, a case about information privacy and government background checks; Snyder v. Phelps, a case about anti-gay funeral protesting; and Bruesewitz v. Wyeth, a case about federal preemption and vaccines.  At Concurring Opinions, Daniel Solove has a detailed two-part analysis of the issues at stake in NASA.  He raises the possibility that the Court will eliminate a right to information privacy that is “recognized by the vast majority of federal circuit courts” and argues that it should not do so.  Wired and the Pasadena Star-News also take note of NASA.

The Kansas City Star and the Wichita Eagle offer local background on the protesters whose demonstrations are at issue in Snyder.  At the WSJ Law Blog, Ashby Jones labels the case as “a contender as one of the more interesting cases of the Supreme Court’s 2010-11 term.”  For Bruesewitz, the Pittsburgh Post-Gazette and the Pittsburgh Tribune-Review each offer a local account of the fifteen-year legal battle over a children’s vaccine that may have given the petitioners’ daughter a chronic seizure disorder.  Meanwhile, TV Week’s TVBizwire blog notes that on Monday the Court denied a challenge by a federal death row inmate to a federal prison policy—adopted after Timothy McVeigh appeared on “60 Minutes” in 2000—that bars death row inmates from being interviewed in person.  The petition had been supported by many news organizations.

There are two new articles about Justice Scalia’s comments during last week’s argument in the Second Amendment case McDonald v. City of Chicago. Saul Cornell, Justin Florence, and Matthew Shors have a piece in Slate explaining that localities have exercised a long-standing authority to regulate guns.  They argue that such history should give originalists pause before incorporating the Second Amendment against the states: “there is ample historical evidence showing that at the time the 14th Amendment was ratified, states had broad authority to enact nondiscriminatory gun-safety regulations.”  In the Washington Examiner, Josh Blackman and Ilya Shapiro have an op-ed questioning whether Justice Scalia is “abandoning originalism” by appearing to ignore the Privileges or Immunities argument in favor of incorporation through substantive due process.  They observe that “when the justice was faced with a golden opportunity to advance originalism, he blinked.”

The L.A. Times reports that the Court’s campaign finance rulings have contributed to the ever-expanding fundraising success of the U.S. Chamber of Commerce.  In an opinion piece in U.S. News & World Report, the Brennan Center’s Ciara Torres-Spelliscy urges the U.S. to adopt a law like one the U.K. “passed in 2000 that requires British companies to seek authorization from their shareholders for corporate political spending.” Elsewhere, ACSblog has an interview with Joseph Sandler, an election law expert, in which he discusses the impact of Citizens United.

On her blog, Joan Biskupic reflects on lessons we can draw from past administrations’ Supreme Court nominations processes.  She observes that, especially in Republican administrations, the president’s nominations team starts in-depth research, vetting, and even interviews well before a vacancy presents itself.   Biskupic also notices a pattern: finalists who were passed over for a nomination to the Court often snag the next vacancy during that president’s term.

Briefly:

• The L.A. Times profiles Goodwin Liu, President Obama’s recent nominee to the Ninth Circuit.  Liu is a Berkeley professor and former clerk to Justice Ginsburg who testified against Justice Alito at his confirmation hearings.
• At Concurring Opinions, Tuan Samahon discusses “a whopper of an assumption” in Free Enterprise Fund v. PCAOB, a separation-of-powers case argued in December.

• Retired Justice Sandra Day O’Connor carried her campaign to end judicial elections to Elon University School of Law in Greensboro, North Carolina, reports the Burlington Times-News.

Below, Scott Street of Akin Gump recaps the opinion handed down yesterday in Bloate v. United States.  (In October, we posted Scott’s preview and recap of oral arguments in the case on this blog).  Check the Bloate v. United States (08-728) SCOTUSwiki page for additional information.

If Congress could shift its attention away from health care reform for a few minutes, it would learn a valuable lesson from yesterday’s seven-to-two decision in Bloate v. United States: write more clearly when writing federal law!

In Bloate, the Court held only that a delay which results from time spent preparing pretrial motions cannot be automatically excluded under the Speedy Trial Act, which requires that a criminal defendant be brought to trial within seventy days of being arraigned or indicted, whichever occurs later.  Rejecting the interpretations of eight federal courts of appeals, the Court held that such time can instead only be excluded from the speedy trial clock if the district court finds, on the record, that granting the extra time serves the ends of justice.

It would be easy to think of Bloate as a simple case of statutory interpretation.  But several aspects of the decision should send a message to Congress when it writes these federal laws.

Everybody involved in Bloate agrees that criminal defendants should not be allowed to delay their proceedings by requesting an extension of time—here, an extension of time to prepare and file pretrial motions–and then take advantage of that delay by arguing that the delay prejudiced their right to a speedy trial.  Unfortunately, Congress did such a poor job of drafting the Speedy Trial Act that it took six months for the Court to decide what section of the Act excludes that delay from the speedy trial clock.  And even then, the Court’s decision prompted a strong dissent from the fairly unusual alliance of Justices Alito and Breyer.

Indeed, both the majority and the dissenting opinions in Bloate are reasonable and persuasive.  As Justice Thomas notes for the majority, although the Act automatically excludes delay resulting from “other proceedings concerning the defendant,” it excludes delay resulting from other “continuances” only if the district court finds, on the record, that the delay serves the ends of justice.  The majority refused to read the automatic exclusions broadly–notwithstanding that Congress, in providing examples of such proceedings, said that the list was illustrative and non-exhaustive–because it felt that doing so would render the “ends of justice” provision meaningless, contrary to canons of statutory interpretation.

The dissent disputes some aspects of the majority’s statutory interpretation, such as the assertion that delay in preparing a pretrial motion constitutes delay “resulting from any pretrial motion”–a meaningful distinction in a case like this one, in which the district court granted extensions of time to file a pretrial motion but no motions were ever filed. More importantly, the dissent deems it pointless to require district judges to make an “ends of justice” finding on the record, because they will always exclude delay resulting from a defendant’s request from the speedy trial clock.

That ends-oriented analysis did not sit well with the majority, even though the justices have been conscious of the swelling federal docket and have demonstrated, in cases like Pearson v. Callahan, a desire to ease that burden. The statute simply proved too vague for the majority to justify that result.

So, in the end, even if the Court could not agree on how Congress expressed its intent, Congress always has the power to rewrite the Speedy Trial Act, and there is no doubt that busy federal judges would like Congress to clarify what seems clear: that delay resulting from a defendant’s request for an extension of time to file a pretrial motion should be automatically excludable from the speedy trial clock to prevent creating a legal loophole for dilatory defendants.

Below, Shira Liu, a student at Stanford Law School, recaps last week’s opinion in Mac’s Shell Service, Inc. v. Shell Oil Products Co. and Shell Oil Products Co. v. Mac’s Shell Service. Check the Mac’s Shell (08-240 and 08-372) SCOTUSwiki page for additional commentary.

Last week the Court issued its opinion in Nos. 08-240 and 08-372, Mac’s Shell Service, Inc. v. Shell Oil Products Company and Shell Oil Products Company v. Mac’s Shell Service.  The Court held that under the Petroleum Marketing Practices Act (“PMPA”), retail gasoline franchisees cannot bring a claim for constructive termination of the franchise if they have not abandoned the franchise, nor can they bring a claim for non-renewal of a franchise agreement if they have signed a new agreement.

In a unanimous opinion by Justice Alito, the Court held that under the PMPA, a franchisee cannot sue for termination of its contract unless it severs the legal relationship.  The PMPA provides that “no franchisor . . . may . . . terminate any franchise,” and defines “termination” to include “cancellation.”  The Court considered both the ordinary and the Uniform Commercial Code meanings of termination and cancellation.  It noted that claims for constructive discharge and constructive eviction generally fail without an end to the legal relationship.  And although the First Circuit had distinguished these doctrines from the constructive termination of a retail gasoline franchise relationship by emphasizing the franchisees’ substantial sunk costs, the Court “s[aw] no reason for a different rule” in the franchise context.

The Court noted two additional considerations.  Because the PMPA overlaps with state contract law, the Court stated that it would need a “clearer indication that Congress intended to federalize such a broad swath of the law” before reading the PMPA to govern more actions that are currently handled under state law.  In addition, as Justices Breyer and Alito hinted during oral argument, the Court noted that any standard defining which franchisees can bring PMPA termination claims notwithstanding the lack of actual termination “would be indeterminate and unworkable.”

Although a substantial part of the briefs and oral argument was devoted to defining a standard for constructive termination, the Court explicitly declined to decide whether constructive termination claims can ever be brought under the PMPA, or whether the PMPA covers only terminations initiated, explicitly or implicitly, by the franchisor.

The second question presented, whether a franchisor that signs a new contract could sue for constructive non-renewal, was barely discussed at oral argument. The Court rejected the franchisees’ claim that they could bring the claim if they signed “under protest,” explaining that “[s]igning a renewal agreement does not constitute a waiver of a franchisee’s legal rights—something that signing ‘under protest’ can sometimes help avoid.”  Rather, the Court held, relying on the text, structure and purpose of the statute, that a new agreement “negates the very possibility of a violation of the PMPA.”  Here too, the Court did not determine whether a franchisee can claim constructive non-renewal if it refuses to sign a new franchise agreement, or whether such claims are available only to franchisees who are not presented with new contracts.

Bill Mears at CNN reports on yesterday’s cert. grant in Bruesewitz v. Wyeth, in which the Court will consider whether and when vaccine manufacturers can be sued outside of the special “vaccine court” established by Congress to address vaccine-related injuries.  At the BLT, Tony Mauro notes that Chief Justice Roberts – who owns Pfizer/Wyeth stock – recused himself from the decision to grant cert. in the case.

At the L.A. Times and in its blog, David Savage covers the cert. grant in Snyder v. Phelps, describing the case as one in which the Court will “decide the outer-limits of free speech protection for public protests”; Bill Mears at CNN also previews the case.  At PrawfsBlawg, Howard Wasserman expresses concern that the Court will use the case to “further limit the scope of public-space expression.” The ACSblog, the Huffington Post, and Tony Mauro at the BLT also report on the story.

Elsewhere in the blogosphere, Eugene Volokh at the Volokh Conspiracy has a series of posts in which he argues that the Court should uphold the Fourth Circuit’s decision, “notwithstanding the speech involved,” because the relevant tort is “facially overbroad and thus unconstitutional as applied to speech.”  Volokh also applies the standard outlined in the lower court judgment to hypothetical situations and concludes that upholding the decision would “lead to the restriction of much more valuable speech.”

Ashby Jones at the WSJ Law Blog recaps last week’s “Privileges or Immunities” debate in the McDonald v. City of Chicago oral argument.  Although most of the justices seemed unreceptive to the argument, Jones speculates that Justice Thomas may be “the lone Court member who is willing to incorporate the Second Amendment to the states through the Privileges or Immunities Clause.”  At the Volokh Conspiracy, Orin Kerr also discusses the Court’s apparent unwillingness to expand the Privileges or Immunities Clause and opines that the Constitution is at least partly responsible for that hesitation, as it requires that justices be nominated and confirmed by politicians, who are simply “not likely to favor someone who they think will exercise the power of the office in unexpected ways.”

Robert Barnes at the Washington Post recaps yesterday’s decision in Milavetz, Gallop & Milavetz v. United States, explaining that the Court’s narrow interpretation of the statute at issue “only reinforces rules prohibiting lawyers from giving unethical advice.”  At the Bankruptcy Litigation Blog, Steve Jakubowski applauds the Court for reading the statute in a way that does not restrict “full and frank” discussions between lawyers and their clients. Ashby Jones at the WSJ Law Blog and Tony Mauro at the BLT also have coverage.

Bob Egelko at the San Francisco Chronicle reports on yesterday’s cert. grant in NASA v. Nelson.  At the Volokh Conspiracy, Eugene Volokh compares background checks to a police officer conducting a criminal investigation and predicts that the Court will reverse because there is no “constitutional right not to have the government ask other questions about you.”

In his Sidebar column at The New York Times, Adam Liptak discusses the strategy behind reading an oral dissent from the bench, noting the public relations and ideological factors that may go into a justice’s decision. The number of oral dissents has increased significantly on the Roberts Court, a trend that Liptak writes is “suggestive of an increasingly polarized court.”

Also at the Washington Post, op-ed columnist E.J. Dionne, Jr. urges both parties to enact the Schumer-Van Hollen campaign finance bill to “put boundaries” on the Court’s controversial Citizens United opinion and “make executives think twice before unleashing their companies’ treasuries.”

Briefly:

• At the Volokh Conspiracy, John Elwood speculates on who may be writing the four opinions remaining from the October sitting; among his predictions is that either Justice Kennedy or Justice Stevens will write the majority opinion in United States v. Stevens.
• Adam Liptak at The New York Times covers the cert. grants in Snyder v. Phelps and NASA v. Nelson and the decision in Milavetz.  Robert Barnes at the Washington Post also has a general overview of Monday’s proceedings.
• The Seattle Times has an editorial that characterizes Washington State’s constitutional right to own a gun as a model for “reasonable regulations” and encourages the justices to clarify federal gun laws in its McDonald opinion in a way that still allows the states “a strong power to protect public safety.”
• Tony Mauro at the NLJ reports on a recent poll regarding, among other things, cameras in the courtroom and life tenure for judges. More than sixty percent of those polled agreed that cameras in the courtroom would be “good for democracy.”

I’ve been away for two weeks; hence, no Plain English posts.  But what an exciting time to catch up!  For SCOTUS watchers like us, this was not the week to miss, especially because of the oral argument in the long-anticipated gun rights case, McDonald v. City of Chicago.  Other interesting developments?  An examination of Jeffrey Skilling’s trial (especially the jury selection) and the wrap-up of our Black History Month coverage.  Add in a same-sex marriage ruling and a huge Miranda case, and you’ve got a week that could keep even the most reluctant SCOTUS fan entertained.

Let’s start with the crown jewel of the week, at least in terms of visibility (yes, some people camped outside the Court for more than twenty-four hours so that they could see the argument):  McDonald v. City of Chicago, the follow-up to the Court’s 2008 decision in Heller v. District of Columbia that the Second Amendment ensures an individual right to bear arms. 

To understand McDonald, you’ll first have to understand the concept of incorporation.  In a very early case, the Court held that the Bill of Rights applied only to the federal government.  Over many years of jurisprudence, however, the Supreme Court has ruled that most of the rights protected in the Bill of Rights also apply to the states.   The Court has found that the rights are “incorporated” through the Fourteenth Amendment.  In other words, neither the federal government nor the states can make laws that, for example, limit free speech, deny the right to counsel, or allow unreasonable searches.

The key question in McDonald is whether the Second Amendment is incorporated.  In Heller, the Court made clear that the federal government cannot place unreasonable limits on an individual’s right to bear arms.  McDonald asks the Court to extend that rule to municipalities and states. 

The big issue in McDonald, however, is not whether the Court will extend the rule to states and municipalities – because everyone seems to agree that it will – but instead what provision of the Constitution it will rely to do so.  Is the Second Amendment incorporated through the Fourteenth Amendment’s Privileges or Immunities Clause, or through the Due Process Clause?  Well, since a major case in the late nineteenth century, most believe that the Privileges or Immunities Clause in the Fourteenth Amendment doesn’t actually do very much, and incorporation of the other rights has occurred mostly through the Due Process Clause.  However, the plaintiffs in McDonald asked the Court to incorporate through the Privileges or Immunities Clause, a request that – as evidenced by Justice Scalia’s sarcastic comment during the oral argument that only law professors even care about the clause anymore – seems to have gained little traction,. 

In the end, Court observers were left with the impression that the Court would extend the Second Amendment by incorporating the right to bear arms through the Due Process Clause, and would probably allow some reasonable restrictions on gun ownership – leaving the details regarding those restrictions, Nina Totenberg speculated, to be litigated for years to come.

As for same-sex marriage, the District of Columbia, through a vote by its city council, has joined the five states that allow gays and lesbians to marry.  This week however, gay marriage opponents filed with Chief Justice John Roberts an emergency stay petition designed to stop the ordinance from going into effect until a measure against it could be introduced onto a voter ballot.  When government bodies in the District refused to allow the measure on the ballot, citing human rights concerns, the opponents petitioned Chief Justice Roberts not in his role as Chief Justice, but in his role as Circuit Justice for the District of Columbia.

Sound confusing?  Isn’t John G. Roberts, Jr., the Chief Justice of the United States?  And so doesn’t he run the Supreme Court?  Well, yes (and the entire federal judiciary actually), but each Supreme Court Justice is also responsible for handling certain legal matters, like emergency stay petitions, from designated areas of the country (called judicial “circuits”).  In the olden days, the Justices actually “rode circuit,” riding horses far and wide to decide cases out in the wilds of the then mostly undeveloped United States.  (Some, like SCOTUSblog’s David Stras, posit that perhaps they still should).  Now, they decide mostly emergency or time-sensitive issues that may also go through the regular cert. process, such as requests to stay executions or – as in this case – to stay a lower court’s order. 

Although  Chief Justice Roberts apparently thought that the opponents’ arguments were not totally off-base (writing that they had “some force”) he deferred to the lower court (a concept I’ll discuss more below when explaining the Skilling case).  He also noted that the D.C. Court of Appeals was still acting on the case.  However, he stated that he thought the full Supreme Court unlikely to grant cert. on the issue, at least as currently formulated, and he denied the stay.

Does this mean that the Chief supports gay marriage?  Well, whether he does or does not is beside the point.  He is using time-honored rules, traditions, and procedures to make a legal ruling.  It’s a great example of how a Justice must put aside personal beliefs and ideas to make a legal decision.

We’ve been watching Kiyemba v. Obama for a while, and this week marked the end of the case’s SCOTUS life, at least for the near future. Why?  Because each of the seven petitioners in the case has been offered resettlement by another country, a “new development” that the Court has deemed enough to send the case back to the court of appeals.  Originally, the Justices had agreed to hear and decide the case.  Now, however, only the President (through executive agencies) and Congress will be dealing with policy and law pertaining to war detainees.  In dismissing the case, the Court leaves open a key question:  what authority do federal judges have to order release of detainees when the federal government is holding them for no reason?

Also in the news for some time now has been Jeffrey Skilling, the CEO of Enron who was convicted of corporate fraud.  This week, Skilling had the chance to argue his case to the Supremes.  His contentions?  That the statute under which he was convicted, an “honest services” statute, was unconstitutionally vague – in other words, that a reasonable person wouldn’t have been able to ascertain what conduct was prohibited.  If a statute is overly vague, then a person can’t properly be convicted under it.  Unfortunately for Skilling, that argument did not appear from the oral arguments to gain much traction with the Justices.  On the other hand, as Lyle reported on Monday, his jury selection claim – or his argument that the case should not have been tried in Houston because of the outrage against Enron there – may have garnered more attention from the Court. 

As Lyle noted, the Justices seemed concerned that the trial judge, Judge Lake, had not recognized just how high-profile the Enron case and just how potentially prejudiced the jury pool might be.  The problem?  Well, it’s unclear what the Court can do about that.  As some Court watchers observed, it did not appear that the Court was willing to grant Skilling a new trial or tell trial court judges how to screen juries.

The issue of the Court interfering with the roles of trial court judges is an important one.  While the Court is most certainly the highest court in the land (and, no, I’m not talking about the basketball court on the top floor of the Court building), it respects and recognizes the autonomy of trial court judges, in part because they do an extremely competent job, and in part because the Court may want to signal that respect to the public.  And given the fact that Justice Sotomayor was herself a trial court judge for many years, we can expect that deference to continue even in the wake of the Enron case.  While the Court would call out judicial misconduct, it will probably be hesitant to interfere absent a real abuse of discretion. 

And in Shatzer, the Court declined to issue one of its usual narrow rulings when it established a new rule concerning Miranda rights.  If you’ve watched a TV police or crime show anytime in the last twenty-five years, you almost certainly know that police are required to tell those in custody that they have a right to remain silent, that their statements (written or oral) can be used as evidence against them in court, and that they have a right to an attorney.  Once a defendant requests an attorney, under Miranda, the police cannot ask any more questions without an attorney present.  But under Shatzer, in which the police questioned the defendant without his attorney present two-and-a-half years after his initial Miranda warnings, the defendant challenged the admission of his statements into evidence. 

Writing for the Court, Justice Scalia explained that Miranda requests for counsel aren’t eternal – they don’t go on forever.  Fourteen days after a defendant is released from custody, the police get a fresh bite at the apple, and they may resume questioning again. 

Two notable things about this decision?  Well, first, it should come as no surprise.  The Roberts Court is fairly tough on criminal defendants, and, indeed, many have speculated for some time that it might do away with Miranda altogether.  That the Court limited Miranda is fairly predictable; here’s what isn’t.

Under the Constitution, federal courts can only decide issues that are squarely before them.  In other words, if a case involves a resumption of questioning after two-and-a-half years, the court will decide the case on those facts only.  This is especially true of the Roberts Court, which tends to shy away from making sweeping rules and usually limits itself to the narrow question before the Court.  It would have been easy for the Court simply to say, then, that two-and-a-half years is way too long for Miranda rights to endure.  But the Court went one step further:  It said that the limit on Miranda is fourteen days.  Even Justice Scalia called the Court’s establishment of a deadline “certainly unusual.” 

Tomorrow, I’ll write about the other opinions and arguments from last week.

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade.  This was one of three newly granted cases.  The others test the constitutionality of background checks for workers who work for the government under contract, rather than as regular employees, and a case testing the right to sue in state court when a child is injured or dies after receiving a vaccine.  All of the cases will come up for review in the Court’s next Term, opening Oct. 4.

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to remarks that a private person made about another private person, occurring outside the site of a privae event..  The family of the dead soldier had won a verdict before a jury, but that was overturned by the Fourth Circuit Court, finding that the signs displayed at the funeral in western Maryland and later comments on an anti-gay website were protected speech.   The petition for review seeks the Court’s protection for families attending a funeral from “unwanted” remarks or displays by protesters.

In March four years ago, Marine Lance Corporal Matthew A. Snyder was killed while serving in Iraq.  His family arranged for a private funeral, with Christian burial, at St. John’s Catholic Chruch in Westminster, Md.  When word of the planned funeral appeared in the newspapers, the Rev. Fred W. Phelps, Sr., pastor of Westboro Baptist Church in Topeka, Kan., who has gained notoriety in recent years by staging protests at military funerals, decided to stage a demonstration at the Maryland funeral.  In response to such protests, some 40 states have passed laws to regulate funeral demonstrations.

The Rev. Phelps’ church preaches a strongly anti-gay message, contending that God hates America because it tolerates homosexuality, particularly in the military services.  The church also spreads its views through an online site, www.godhatesfags.com.   When the Snyder funeral occurred, the Rev. Phelps, two of his daughters and four grandchildren staged a protest nearby.  They carried signs with such messages as “God Hates the USA,” “America is doomed,” “Pope in hell,” “Semper fi fags,” and “Thank God for dead soldiers.”  The demonstration violated no local laws, and was kept at police orders a distance from the church.   After the funeral, the Rev. Phelps continued his protest over the Snyder funeral on his church’s website, accusing the Snyder family of having taught their son irreligious beliefs.

The soldier’s father, Albert Snyder, sued the Rev. Phelps, his daughters and the Westboro Church under Maryland state law, and won a $5 million verdict based on three claims: intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy.  (The verdict included $2.9 million for compensatory damages and $2.1 million for punitive damages; the punitive award had been reduced from $8 million by the trial judge.) The Fourth Circuit Court overturned the verdict, concluding that the protesters’ speech was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about the soldier or his family.  While finding that the Phelps’ remarks were “utterly distasteful,” the Circuit Court said they involved matters of public concern, including the issue of homosexuality in the military and the political and moral conduct of the United States and its citizens.

In Albert Snyder’s appeal, his lawyers argued that the Supreme Court’s protection of speech about public issues, especially the Justices’ 1988 decision in Hustler Magazine v. Falwell, does not apply “to private individuals versus private individuals.”  If it does apply, the petition said, “the victimized private individual is left without recourse.”  The Circuit Court decision, it added, encourages private individuals to use hyperbolic language to gain constitutional protection “even if that language is targeted at another private individual at a private, religious funeral.”

Even if the Hustler decision does apply to the kind of remarks at issue, the petition asserted, the case also raises the issue of whether those who attend a funeral are like a “captive audience” and thus need protection against intruders who were not invited.

In another case bearing on claims of privacy, the Court Monday added to its decision docket a case involving the broad issue of whether the Constitution protects a “right of informational privacy” — that is, a form of Fifth Amendment protection against government demands for personal information.  The Supreme Court mentioned such a right in a 1977 decision, and has seldom mentioned it since.  A group of workers employed by California Institute of Technology, and working under contract at Caltech’s Jet Propulsion Laboratory outside of Pasadena, won a court order against some of the government demands for information about their private lives — part of background checks similar to the security reviews that regular federal employees often undergo.

The National Aeronautics and Space Administration took the issue to the Supreme Court in NASA v. Nelson, et al. (09-530).  The petition argued that the lower court ruling not only jeopardizes the government’s authority to get information about contract employees, but also about its capacity even to demand information from its own agencies’ employees.  “The ramifications of the decision below are potentially dramatic,” the petition contended.

In the third newly granted case, Bruesewitz, et al., v. Wyeth, Inc., et al. (09-152), the Court will be reviewing the scope of a 1986 federal law that sought to bar all state-court damages lawsuits claiming that vaccines given to children caused injury or death because of a design defect, and that a safer alternative was available but was not used.  The appeal by a Philadelphia family for themselves and their disabled daughter contended that the Third Circuit Court ruled that the 1986 law only bars state court claims where the harmful side-effects were unavoidable. They argued that all such claims are barred, whether the side-effects were avoidable or not.

The Court agreed to hear the Bruesewitz case after asking for the U.S. Solicitor General’s views on the underlying legal issue.  The SG urged that the Court grant review of this case, rather than another pending on the same issue (08-1120).

UPDATE, 10:20 a.m.: Both briefs in the cases acted on and full texts of the opinions now follow the jump.

The Court has granted cert. in three cases,  NASA v. Nelson (09-320), Snyder v. Phelps (09-751), and Bruesewitz v. Wyeth (09-152).  The Chief Justice took no part in consideration of the last petition.

The Court has requested the views of the Solicitor General in the following cases: Carmichael v. Kellogg, Brown & Root Service, Inc. (09-683) and Amara v. CIGNA/CIGNA v. Amara (09-784/09-804).  Justice Sotomayor took no part in considering the last two petitions.

We have just two opinions today:

The first opinion is  Milavetz, Gallop & Milavetz, P.A. v. United States (08-1119).  Justice Sotomayor writes for the Court, joined in full by six Justices and in part by Justices Scalia and Thomas.  Justice Scalia concurs in part and concurs in the judgment, joined by Thomas.  The Court holds that attorneys who provide bankruptcy assistance are debt-relief agencies under the bankruptcy abuse law.  The opinion is here.

The second opinion is in Bloate v. United States (08-728), reversing and remanding the lower court decision on a 7-2 vote.  Justice Thomas writes for the Court.  Justice Ginsburg joins the opinion but files a separate concurrence.  Justice Alito dissents, joined by Justice Breyer.  The time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974.  The opinion is here.

The full order list is here.

Title: Bruesewitz v. Wyeth
Docket: 09-152
Issue: Whether Section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 — which expressly preempts certain design defect claims against vaccine manufacturers “if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warning” — preempts all vaccine design defect claims, regardless whether the vaccine’s side effects were unavoidable.

• Opinion below (3d Circuit)
• Petition for certiorari
• Brief in opposition
• Supplemental brief addressed to the amicus brief of the United States in American Home Products Corp. v. Ferrari
• Amicus brief of the National Vaccine Information Center

Title: Snyder v. Phelps
Docket: 09-751
Issue: (1) Whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter; (2) whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly; and (3) whether an individual attending a family member’s funeral constitutes a “captive audience” who is entitled to state protection from unwanted communication.

• Opinion below (4th Circuit)
• Petition for certiorari
• Brief in opposition

Title: National Aeronautics and Space Administration v. Nelson
Docket: 09-530
Issues: Whether the government violates a federal contract employee’s constitutional right to informational privacy by (1) asking in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year and/or (2) asking the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility — when the employee’s and reference’s responses are used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. § 552a.

• Opinion below (9th Circuit, denial of rehearing en banc)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Carmichael v. Kellogg, Brown & Root Service, Inc.
Docket: 09-683
Issue: Whether a private military contractor in Iraq should be afforded de facto immunity under the political question doctrine for severely injuring
a United States soldier in an automobile wreck during a routine convoy.

• Petition for certiorari
• Brief in opposition

Title: Amara v. CIGNA; CIGNA v. Amara
Docket: 09-784; 09-804
Issue: (1) Whether a district court, after finding violations of the advance notice of reduction requirement in the Employee Retirement Income Security Act §204(h), lacks the authority to require the prior benefit provisions to be reinstated; and (2) whether a district court, after finding that participants were promised “comparable” or “larger” future retirement benefits in a summary of material modification errs in concluding that it lacks the authority to require at least “comparable” future benefits to be provided.

• Petition for certiorari (09-784)
• Petition for certiorari (09-804)
• Brief in opposition (09-784)
• Brief in opposition (09-804)
• Petitioner’s reply (09-784)
• Petitioner’s reply (09-804)

No. 08-1119, Milavetz, Gallop, & Milavetz

No. 08-728, Bloate v. United States

Not surprisingly, coverage of last week’s oral argument in McDonald v. City of Chicago, the challenge to Chicago’s handgun ban, continues.  At ACSblog, David H. Gans opines that Alan Gura, who represented McDonald, made the “right decision” when he urged the Court to rely on the Privileges or Immunities Clause, notwithstanding that the argument received a “chilly reception” from the Court.  George Will of the Washington Post also supports a restoration of the Privileges or Immunities clause, which in his view would provide “useful protection against the statism of the states.”

Writing at Law.com, Calvin Johnson urges the Court to eschew secondary histories in favor of digital searches of the “surviving documents from the adoption of the Constitution.”  In the McDonald case, Johnson contends, the digital archives support Chicago’s arguments in favor of the handgun ban. And the Columbus Dispatch has this editorial supporting local and state gun regulations.

The Court also heard argument last week in Samantar v. Yousuf.  Chimene Keitner at Opinio Juris predicts that the outcome of the case will likely hinge on whether the Court concludes that Congress was “addressing a significant but narrow problem” when it enacted the Foreign Sovereign Immunities Act in 1976 and simply did not address the immunity of current or former officials, or whether the Court instead “feels compelled” to rule on the individual immunity issue “without any statutory guidance.”   [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]

Briefly:

• John Yoo, the Justice Department lawyer who authored memos authorizing simulated drowning, was a clerk for Justice Thomas; David Savage of the Los Angeles Times observes that their similar stances on cruel and unusual punishment “represent[ ] a strain of conservative thinking that looks back in history to define cruelty and torture.”

• Michael Doyle of McClatchy Newspapers reports that the Court’s opinion in Maryland v. Shatzer will likely make it easier to prosecute Ingmar Guandique, who is accused of killing congressional intern Chandra Levy.

• In the Washington Post, Robert Barnes explores the possibility that President Obama would feel compelled to nominate a Protestant to the Court if Justice John Paul Stevens were to retire, leaving the Court with six Catholic and two Jewish Justices.

• Last week, the Australian Federal Court released a decision in Habib v. Commonwealth of Australia which quoted extensively from three United States Supreme Court cases that examined similar issues, reports Evan Criddle of PrawfsBlawg.

• The Center for Competitive Politics recently released a poll on Citizens United, and The Foundry reports.