[6:43 PM | Stephanie]
Today's Papers. PM. Will the Supreme Court hold that Congress lacked authority to establish copyright protections for the first time in 200 years? Read commentary on today's oral arguments in Eldred v. Ashcroft here and here. Here are examples of the creative work that would be affected if the Supreme Court found the 1998 Copyright Extension Act unconstitutional, as reported by the AP.
Miscellaneous. A Nevada woman asks the Supreme Court to find the state law on driving under the influence of prohibited substances unconstitutional and reverse her conviction for killing six individuals; read more from the AP.
[1:45 PM | Tom]
Argument Calendar. With thanks to Roy Englert for alterting us, here's the December argument calendar (in pdf). (Roy's firm has a big day on December 4, when it will argue both cases -- No. 01-1118, Scheidler v. NOW and No. 01-1444, Chavez v. Martinez.)
The big arguments for December are:
1. Scheidler (to be argued Dec. 4) -- a suit against abortion protesters under both the Hobbs Act and RICO, which is making a return appearance at the Court.
2. No. 01-1325, Washington Legal Foundation v. Legal Foundation of Washington (to be argued Dec. 9) -- a takings challenge to a statute setting up lawyers' IOLTA trust fund accounts, which isn't quite making a return appearance but is the successor to a previous case brought by WLF from Texas.
3. No. 01-1107, Virginia v. Black (to be argued Dec. 11) -- a challenge to the constitutionality of a cross-burning statute.
4. No. 01-1289, State Farm Mutual Auto. Ins. Co. v. Campbell (to be argued Dec. 11) -- a challenge to a punitive damage award. (Disclosure: we represent amici supporting the respondent in Campbell.)
December 11 is definitely the day of arguments to see!
[1:34 PM | Erik]
Eldred v. Ashcroft. In addition to a report from the A.P. and a story by Chuck Lane of the Washington Post, here's a guest post from Supreme Court litigator Erik Jaffe, who was at today's oral argument in Eldred.
No clear winner in today's oral argument, with the Supreme Court expressing skepticism of the positions of both sides.
Concerned that striking down the current copyright extension implicitly invalidates all past extensions (of which there are many), the Court wondered whether a long history of extensions strongly suggests that they are permissible. The Court also sought a textual hook for allowing only one initial limited time rather than several limited times for the terms of copyrights. The answer given was that if you let them extend an existing term at all, there is no limiting principle whatsoever, but for some reason that did not seem to be a fully satisfying answer for the Court.
On the flip side, the government conceded that an infinite copyright term or the functional equivalent of such a term would violate the copyright clause, but offered no principle for defining when a less than infinite term was functionally equivalent to an infinite term. The lack of a limiting principle for how much is too much seemed to trouble the Court, but a number of the questions seemed to imply that it was a policy balance as to how much of a limit was appropriate, with such balancing being within the purview of Congress. There was also considerable questioning as to the function of the Copyright Clause – whether it was intended to induce new authorship, or whether inducing distribution of existing materials was an independently sufficient justification for the term extension. Again, there was no satisfactory answer from either side, particularly with the preamble being treated by both sides as having no independent limiting force. (One might suggest that the "promote the progress" language indeed has independent constitutional force and that progress implies new creation, not merely distribution.)
As for the First Amendment issue, that received very limited play – mostly in critical questioning of Professor Lessig by Justices Ginsburg and Souter, and it did not look like that would be much of a factor. (That's unfortunate given that I think it is potentially the stronger argument and that the jurisprudence on interaction between the Copyright Clause and the First Amendment is sorely in need of clarification and improvement.)
Overall, without either side scoring big in the argument, it is somewhat difficult to imagine the Court reversing the decision below. There are probably a couple of votes for reversal (and maybe more), but the benefit of the doubt generally goes to Congress. I'd hate to predict an outcome – a fool's game at best – but I would not wager a lot of new money on a reversal. As for the money already wagered as between copyright holders and the public – six billion by Justice Breyer's guess – I fear that the public will be paying off on that bet for the next twenty years – and the next and the next and the next ….
[12:04 PM | Amy]
Our last Torricelli post? It may not be in quite as much demand since the U.S. Supreme Court denied the Republican Party's request for a stay on Monday, but the New Jersey Supreme Court's opinion is now available here (in PDF).
[11:49 AM | Amy]
Coming soon . . . the Court takes on secret hearings? MSNBC reports on yesterday's decision (here, in PDF) by the Third Circuit (in conflict with the Sixth Circuit) upholding closed immigration hearings for "special interest" detainees. In the article, First Amendment specialist Erik S. Jaffe describes Supreme Court review of the issue as "inevitable."
[10:03 AM | Tom]
More NextWave. Here's Dahlia Lithwick's very detailed take.
[8:50 AM | Stephanie]
Today’s Papers. AM. This morning the Supreme Court will consider whether an arbitrator or a court can decide if an investor’s claims are barred by a National Association of Securities Dealers Rule in No. 01-800 Howsam v. Dean Witter; here, you can read a summary from Law.com. Next, a copyright challenge will be heard today in No. 01-618 Eldred v. Ashcroft; read Seth Waxman’s and AU Law Professor Peter Jaszi’s comments here in Forbes. More coverage in the Financial Times and the AP. For more commentary on yesterday’s NextWave argument read here and here. For a general overview of issues on the Supreme Court’s docket, read here (with contributions from the AP).
Rejected Issues. Cert. was denied in a case addressing the judiciary’s right to punish judges for misconduct, as reported by Linda Greenhouse. An Indiana man will be scheduled for execution for his foster parents’ murder after the Supreme Court denies a stay of a ruling from the Seventh Circuit; read more from the TimesOnline.
[8:28 AM | Tom]
This Morning's Arguments. Today we have the Eldred copyright term extension case and the Dean Witter arbitration case. Both are summarized in news reports to be posted soon.
[11:23 PM | Tom]
Argument Reports. Law.com reports on both today's NextWave argument and yesterday's Ford argument.
[9:43 PM | Stephanie]
Today's Papers. PM. Chief Justice Rehnquist urges Senate leaders not to hold the federal court system hostage in a political battle over the budget in an October 3 letter released today, as reported by the AP. The Court's skepticism of the FCC's position in today's oral argument, No. 01-653 FCC v. NextWave, is documented by the Financial Times and the AP.
Should Supreme Court oral arguments be more readily available to the public? Read a few spirited letters to the editor in response to Amar and Calabresi's Op-Ed, "The Supreme Court's Unfree Speech" (posted below).
[3:04 PM | Tom]
CVSG Report. Five to ten times a year, the Supreme Court "invites" the Solicitor General to file a brief expressing the government's views on whether the Court should grant cert. (Note: This is an "invitation" in the same sense that the IRS "invites" us to pay our taxes each year; the SG doesn't really get to say "sorry, we're busy that day.") These are cases in which the federal government is not a party but federal interests are implicated. There is no deadline by which the government must respond to the invitation, but it generally attempts to time its responses in light of the Court's calendar: responses to invitations made at the end of one term will be filed in time for the case to be argued by the middle or end of the next term; responses to invitations made at the beginning of a term (i.e., around now) will be filed in time for the case to be argued by the end of that term.
Before yesterday's orders list, there were four oustanding CVSGs -- orders "Calling for the Views of the Solicitor General":
No. 01-950, Hillside Dairy v. Lyons (with No. 01-1018) -- order issued 4/15/02 -- addressing California's milk composition requirements. The questions at issue are whether Section 144 of the 1996 Farm Bill created a clear blanket exemption in effect insulating California’s milk pricing and pooling laws from a commerce clause challenge which would otherwise be limited by Baldwin v. GAF Seelig, Inc. and its progeny; and whether courts may resort to legislative history or paraphrase a statute to discern a "clear" congressional exemption?
No. 01-1179, Bank of Am. v. Abraham (with No. 01-1187) -- order issued 4/22/02 -- addressing the duties of fiduciaries to employee stock ownership plans.
No. 01-1317, Att'y Gen. of Canada v. RJ Reynolds Tobacco -- order issued 5/13/02 -- addressing the common law revenue rule, which bars courts of one sovereign from enforcing final tax judgments or unadjudicated tax claims of other sovereigns. Canada frames the question as whether the Second Circuit improperly expanded the revenue rule to bar Canada's valid civil claims under RICO arising out of smuggling and other illegal activities in the United States.
No. 01-1605, In re Taylor (and No. 01-1623) -- order issued 6/17/02 -- addressing 21 U.S.C. § 848(q), which authorizes appointment of counsel for indigent habeas corpus petitioners who have been sentenced to death. At issue is whether the statute provides federal habeas corpus petitioners sentenced to death by state courts the right to appointed counsel in clemency and competency proceedings?
Yesterday, the Court added three more CVSGs:
No. 01-1710, Empire Blue Cross & Blue Shield v. Byrnes -- addressing ERISA and the proper standard for vesting employee benefits. The questions presented are: did the court of appeals err in holding that ERISA authorizes claims that welfare plan benefits have vested prior to or upon retirement despite the absence of clear and express vesting language; and did the court of appeals err in holding that ERISA authorizes breach of fiduciary duty claims against employers for amending a welfare plan to modify benefits or for failing to disclose that benefits could be reduced or terminated under the plan?
No. 02-117, Minnesota v. Martin – addressing state lien rights for a state’s cost of care arising from injuries where medical assistance is necessary, as well as related Medicaid provisions. The questions at issue are whether state lien rights are preempted by a Medicaid provision that prohibits liens “against property of any individual prior to his death on account of medical assistance paid,” 42 U.S.C. § 1396p(a)(1); and whether the assignment provision of 42 U.S.C. § 1396k(a) prohibits states from recouping government-paid medical costs from all recoveries that a medical assistance recipient is entitled to receive from third parties before the recipient can recover any sums for him or herself?
No. 132, Orig., Alabama v. North Carolina -- addressing the Southeast Interstate Low-Level Radioactive Waste Management Compact. You can see a previous brief filed by the SG here.
[2:57 PM | Tom]
Oral Argument Report. We're back from the oral argument in FCC v. NextWave, a case involving Section 525 of the Bankruptcy Code. NextWave purchased spectrum licenses on installment contracts from the FCC, but when the telecomm market tanked, NextWave became insolvent and sought Chapter 11 protection. During the bankruptcy, NextWave missed an installment payment, which the FCC later said caused the licenses to cancel automatically and to revert to the government (which re-auctioned them for around $15 billion).
Section 525 prohibits the government from revoking a license of a debtor "solely because" of the failure to pay a dischargeable debt. The DC Circuit held that Section 525 bars the license cancellation, but the Supreme Court granted cert.
The FCC pressed two positions at oral argument today. (The case was well argued by Principal Deputy Solicitor General Paul Clement; SG Ted Olson is recused because he represented NextWave in the court of appeals.) First, licensees can seek waivers or extensions of installment payments, which the FCC may grant for non-financial reasons. (In fact, the FCC did extend the payment deadline for NextWave and others.) Second, although the licenses canceled for nonpayment, the FCC was not merely trying to collect a debt but was using nonpayment as a "proxy" (not intended as scare-quotes - proxy captures the government's position well) for other regulatory concerns.
Those in the audience, both with and without a stake in the outcome, concluded that the Supreme Court wasn't buying the FCC's arguments. The FCC said time and again in the regulatory proceedings that the licenses canceled "automatically." The Bankruptcy Code says that the government may not act "solely because" of nonpayment, and doesn't look to the government's underlying rationale. Justice Scalia had the best analogy/hypothetical: assume that a statute establishes a heightened punishment for killing someone on the basis of race -- it can't be a defense to say, "I killed him because I knew he was Jewish, but my real motivation was that I object to the policies of Israel."
We expect that NextWave will win, and by a pretty wide margin. We'll disclose again that we worked for amici supporting NextWave, but we checked with a lot of people to make sure our sense of this one was widely shared.
UPDATE: You can see the Dow Jones wire service story here (subscription required), including Justice Breyer's not-as-great analogy during the argument: "'No animals in the park doesn't apply to a pet oyster,' he said. Likewise, there would be 'no way the government can collect its money' if the bankruptcy law is interpreted so literally."
[8:45 AM | Amy]
Tuesday at the Court. First up today on the Court's argument calendar is No. 01-653, FCC v. Nextwave, and its companion case, No. 01-657, Arctic Slope Corp. v. Nextwave. The Nextwave cases will be followed by arguments in Nos. 01-705 and 01-715, Barnhart v. Peabody Coal and Holland v. Bellaire Corp. Stay tuned . . . we'll have a report on the Nextwave argument later today.
[8:34 AM | Stephanie]
Today’s Papers. AM. Tuesday’s docket from the Washington Post. More on the Justices’ refusal to hear the Torricelli matter from the Washington Post here and here. Major League Soccer players plan to form a union after their case was rejected by the Supreme Court yesterday. Read more about the appeals rejected by the Court yesterday from ABC news and Newsday.
Just for fun. Read more about the Chief Justice’s briefest retirement (again thanks to David Gossett).
[12:22 AM | Amy]
Today at the Court, Part II. Although we earlier noted Dahlia Lithwick's lament (below) that nothing interesting ever happens on First Monday, the Associated Press reports (here) that the Chief Justice began the new term yesterday by announcing his retirement. However, the Chief Justice's retirement proved even more short-lived than either of Michael Jordan's two spells in retirement, as he (the Chief Justice, not MJ) quickly explained that he actually had intended to announce the retirement of longtime Chief Deputy Clerk Frank Lorson. Thanks to David Gossett of Mayer Brown for providing us with the link to the story.
[7:08 PM | Amy]
Today at the Court. Slate's Dahlia Lithwick takes a mostly light-hearted look (here) at events (or, in her opinion, the relative lack thereof) at the Court today, complete with details regarding Justice Breyer's new glasses and a recap of former SG Seth Waxman's "devastatingly suave" argument in No. 01-896, Ford Motor Co. v. McCauley.
[2:51 PM | Stephanie]
Today's Papers. PM. For general coverage, check out the Washington Post’s Supreme Court page. Here is an overview of the issues involved in this term from the AP and the NY Times. For an analysis of the business issues on the Supreme Court’s docket, read the WSJ here (subscription required).
Miscellaneous. The steps at the Supreme Court are a “no prayer” zone as reported in the Washington Times. Linda Greenhouse writes about “Nine Justices, Nine Years” in the NY Times. An op-ed titled “Oyez! Oyez!” regarding the opening of the term in the NY Times.
Just for fun. Read about supreme litigators Ted Olson and Paul Clement in federal district court for Walker v. Cheney in the Washington Post.
[2:38 PM | Tom]
Torricelli - Stay Denied. The Court has denied the Republican's motion for a stay, according to numerous reports including this one.
[11:23 AM | Tom]
Cert. Denial Coverage. Here is an A.P. story on Oakley v. Wisconsin (a challenge to a probation condition prohibiting childbearing) and Gardiner v. Gardiner (a challenge to one state's refusal to afford full faith and credit to another's recognition of a transsexual's marriage). Here's a story about denials in business cases. Here's a story about an antitrust case. Here's one on a takings claim involving parts of golden and bald eagles. Here's one on Ken Starr's tattoo petition. Here's one on the petitions of "Oklahoma City bombing conspirator Terry Nichols, imprisoned Dr. Jack Kevorkian, former Olympic security guard Richard Jewell, and Frank Sinatra Jr." Disclosure: we represented the petitioner in the Oakley case.
[10:06 AM | Tom]
No grants. We were wrong. The Court denied basically every case on the summer list today, making the "long conference" for the Summer of 2002 easily the most difficult on which to get cert. granted in recent memory.
[9:36 AM | Stephanie]
Today's Papers. As the Supreme Court’s October term begins, the Justices will consider many First Amendment issues. No. 01-618, Eldred v. Ashcroft concerns the Copyright Term Extension Act of 1998, also known as the Mickey Mouse Extension Act due to heavy lobbying by Disney. Read more about the copyright law challenge to be heard on Wednesday, October 9 from SiliconValley.Com. Another article on the copyright issues involved in Elred v. Ashcroft by Declan McCullah in C Net.
Read a general overview of the Supreme Court’s October term by Andrew Cohen from CBS News.
Three Supreme Court Justices attend annual Red Mass the Sunday before the First Monday on October, read more here.
Read an Op-Ed piece titled “The Supreme Court’s Unfree Speech” in the NY Times co-authored by Akhil Reed Amarand, law professor at Yale and Steven G. Calabresi, law professor at Northwestern.
[8:45 AM | Tom]
10am Orders List. We'll be posting information on any granted cases as soon as the orders list is released. When the list is posted by the Court on the web -- generally between 10:30 and 11:15 -- it should be available at this link.
[12:06 AM | Tom]
Another Member Of Our Team. Our law clerk, Stephanie Wood, will be posting regular updates on press coverage of the Court.
[12:03 AM | Tom]
Good Morning. This Supreme Court opens its October Term 2002 today. To coincide with that event, we've revised our web-site to provide current information about our firm and many more sample briefs that can be downloaded.
[11:56 PM | Tom]
Not quite the weekend yet. Akhil Amar and Steven Calabresi have a New York Times editorial calling for greater public access, including television coverage, of the Supreme Court's proceedings.
[11:50 PM | Tom]
Weekend Policy. Barring unusual circumstances, we won't be posting to SCOTUSblog during the weekends, but look forward to picking up again during the week. Please have a great weekend.
[11:40 PM | Tom]
Legal Times. They've posted the next edition at law.com and Tony Mauro has been busy. He has the cases and arguing counsel for the October sitting here, the cases with the best chance of having cert. granted from the October 11 conference here, and an article about speculation regarding the Chief Justice's retirement here.
A note about the Legal Times summary of noteworthy cert. petitions, which is based on a list we prepare. Each day, we check the on-line version of U.S. Law Week (a subscription service), which constantly notes new "paid" (as opposed to pauper) petitions by summarizing the decision below and reproducing the question presented. (We'll be noting some of the cases on this blog as well.) Based on that information, we're able to eliminate around 80% of the petitions as presenting no issue the Court would seriously consider. We skim the remainder of the petitions (together with the briefs in opposition and reply briefs) at the Court, eliminating a few more. We then create a list of likely candidates for each of the Justices' conferences, which we turn over to Legal Times. (In a later post, we'll explain the formula for figuring out which cases fit on which conferences). Legal Times does all the reporting, including selecting the one case to be discussed at length in Tony's column.
[7:46 PM | Tom]
High Stakes Litigation. Highlighting the importance of the NextWave case, CBS News Marketwatch includes Tuesday's Supreme Court argument on its list of important business-related events in Washington next week. (Disclosure: we represent some of the amici in NextWave.)
[7:43 PM | Tom]
Term Opener #2. Here is USA Today's piece by Joan Biskupic.
[5:32 PM | Tom]
From Findlaw.com's Writ. Michael Dorf has part one of his preview of the upcoming Supreme Court term and Paul Horwitz reviews a memoir of a law clerk from the 1930s who had "a ringside seat at a major episode in the Supreme Court's history. Little did he know, in the fall of 1936, when the clerkship began, that it would coincide with this century's greatest battle over the composition of the Supreme Court - and the downfall of the Four Horsemen."
[5:28 PM | Tom]
Appellate Strategy. This article describes the to-be-filed cert. petition of a woman with an IQ of 62 who raises the serious issue of whether she can be deemed to have understood her manslaughter plea agreement. We only wonder about the first part of her lawyer's statement to the press that "It is a bad case. On it's facts, it stinks to high heaven. But that is not what gets you in the U.S. Supreme Court."
[5:24 PM | Tom]
Women's Hall of Fame. We learn here that Justice Ginsburg will be inducted tomorrow and that Justice O'Connor was inducted in 1995.
[5:20 PM | Tom]
Life of a Supreme Court Correspondent. Mike Kirkland of UPI has a sometimes hilarious article. But he may have given up too early on the Supreme Court granting interesting cases from the summer list. Mike's plaint that the Court granted only "cases that seemed to deliberately concentrate on the most technical of legal points" is critical to our conclusion that there are more grants, and more interesting grants, to come.
[1:36 PM | Tom]
ATF Case Follow-Up. Yesterday, we flagged a cert. petition filed by the Solicitor General involving FOIA and firearms records. With thanks to Roy Englert for the suggestion, and the City of Chicago Department of Law for their assistance, here is the respondent's brief in opposition.
[1:14 PM | Tom]
New Jersey Senate Case Cont'd. Articles on the Democrats' response are available here (Dow Jones) and here (A.P.).
UPDATE: The Democrats' opposition is now available here on Findlaw. They have the correct caption.
[11:41 AM | Tom]
Supreme Court Agenda Setting. Courtesy of the Washington Legal Foundation, an advocacy group devoted to "free-enterprise principles, responsible government, property rights, a strong national security and defense, and balanced civil and criminal justice system" that does wonderful work before the Court, Tom Goldstein has an article with ideas on how the cert. process might be improved and how circuit splits could better be resolved.
[11:18 AM | Tom]
Term Opener. Here's Reuters' take on the upcoming term. Although they don't appear to list by-lines, all their work is done by a great Supreme Court reporter, Jim Vicini.
[9:08 AM | Tom]
Torricelli Filing Update. In rushing to hand-carry the Republicans' petition for certiorari to the Supreme Court, Senator Frist forgot to stop and double check the cover, which is inadvertently captioned as the New Jersey Democratic Party v. Sampson (the caption in the New Jersey Supreme Court). (Thanks to Greg Pease, editor of U.S.L.W. for letting me know that fact.) Sampson is the New Jersey Attorney General, named as a defendant in his official capacity. Under the U.S. Supreme Court's rules, the parties need to be reorganized with the relevant Republican(s) (probably candidate Forrester) as the petitioner and any of the remaining parties (most likely the New Jersey Democratic Party) as the respondent. But unlike many other courts, the U.S. Supreme Court takes a very pragmatic view of filings and will probably make the change after a call to the Republicans' lawyers.
[8:45 AM | Tom]
Next Monday's Grants. We're ready to go still further out on a limb with our prediction that there will be more cert. grants Monday morning at 10 a.m. We've moved beyond the principal reasons we offered before: that four grants from the summer list is just way, way too few; and that there is a case on the summer list that will be acted on Monday but that cannot plausibly be denied. Our further thinking goes principally to the kind of cases that were granted this past Monday: each is pretty straightforward and can be briefed relatively quickly -- i.e., in time to be argued in January. They present circuit splits over (i) the meaning of the word "employer" (Clackamas); (ii) whether a particular claim must be brought on direct review or instead collateral attack (Massaro); (iii) the date for filing a cross-appeal (Zapata); and (iv) what event (requesting counsel or filing a petition for habeas corpus) is sufficient to bring a case within the grace period for the AEDPA (Woodford). In other words, these four grants look suspiciously like someone said, "Of all the cases we've granted, which ones could be briefed easily in time to make it into the January sitting? We'll save the rest for February." So, we think one of the cases that was granted on Monday will fill in the last January argument slot while the remaining three will be set for afternoon arguments in January. If we're right, then there likely will be a pretty high number of further grants -- between six and twelve, we'd estimate -- on Monday the 7th because otherwise it would have made sense to just grant one case this past Monday, rather than granting four and taking the somewhat unusual step (under current practice) of holding afternoon argument sessions. Remember, if we're right, you heard it here first; if we're wrong, we were just kidding.
[12:50 AM | Stephanie]
Today's Papers. Linda Greenhouse has a News Analysis of the prospect of Bush v. Gore redux in the Torricelli matter here, while the Washington Post and Washington Times cover the Republicans' filings here and here.
[9:10 PM | Amy]
FOIA Cert. Petition. Firearms records and FOIA meet in No. 02-322, Department of the Treasury v. City of Chicago, in which the SG's office seeks review of the Seventh Circuit's decision requiring the Bureau of Alcohol, Tobacco, and Firearms to provide the city with records relating to firearms sales. As set forth more specifically in the SG's cert. petition, the question presented relates to whether the records at issue are exempt from disclosure under various exceptions to FOIA.
[9:04 PM | Tom]
Update On Leading Supreme Court Advocates. It turns out that Ken Starr will be arguing in the first week of the Term as well. He represents the respondent in No. 01-800, Howsam v. Dean Witter Reynolds. It's an extraordinary line-up of advocates, but just imagine if Seth Waxman's co-counsel in the McCauley case, Walter Dellinger, had argued McCauley instead and the Court had left the Miller-El case in the first week: the Court would have heard in the first three days of argument from the Solicitor General (Ted Olson), two former Solicitors General (Starr and Waxman), a former Acting Solicitor General (Dellinger), two judicial nominees (John Roberts and Jeff Sutton), and Larry Tribe.
[8:31 PM | Tom]
A note about Supreme Court procedure. The pleading filed today by the Republicans (unfortunately, because we don't have the cover, we don't quite know how the case is captioned, although Forrester v. New Jersey Democractic Party would be our bet) is a motion to stay the effectiveness of the New Jersey Supreme Court's order allowing the Democrats to replace Sen. Torricelli with former-Sen. Lautenberg on the ballot. Under Supreme Court Rule 22.3 (see page 30 of this document), such a request for a stay is addressed to the relevant Circuit Justice, i.e., the Justice responsible for procedural matters for that particular circuit and the state courts within the circuit's jurisdiction, as required by 28 U.S.C. 42. You can see the assignment of Circuit Justices on page two of this document. Justice Souter will likely direct the respondents (both the Democrats and the defendant state officials) to respond on a particular schedule. That order will likely be issued very soon. After all the papers are in, it's very unlikely that Justice Souter will act alone. In these sorts of important cases, particularly when there is no need for an instantaneous ruling, the Circuit Justice will "refer" the application to the Court as a whole for disposition. That recently happened in this (look at the bottom of page 3) well-known case regarding public access to immigration proceedings after September 11. In fact, we weren't able to find an instance in which Justice Souter had granted a stay on his own. In his role as Circuit Justice, Justice Souter's only substantial opinion (known as an "in chambers" opinion) on stays is Planned Parenthood v. Casey, 510 U.S. 1309 (1994), in which he denied a stay of the Third Circuit's decision on remand from the Supreme Court's decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[6:20 PM | Tom]
New Site. Courtesy of Jurist, here is a link to the ACLU's new web-site about the Supreme Court.
[6:09 PM | Tom]
Torricelli Follow-Up #4. With thanks to super-star Stanford law professor Pam Karlan (currently visiting at U. Va.), here is the link to the Republicans' U.S. Supreme Court filing.
[6:03 PM | Amy]
More Cert. Petitions. Two recently filed cert. petitions -- No. 02-306, Beneficial National Bank v. Anderson, and No. 02-312, H&R; Block Inc. v. Anderson -- arising out of the same case ask the Court to review the Eleventh Circuit's holding that state law usury claims against a national bank are not completely preempted by the National Bank Act (and thereby removable to federal court). As framed by the petitioner in No. 02-306, the question presented is whether a usury claim against a national bank, even if ostensibly brought under state law, necessarily arises under Section 30 of the National Bank Act so as to permit federal court to exercise removal jurisdiction under the doctrine of complete preemption. The question presented in No. 02-312 is similar but also alleges a conflict with the Eighth Circuit: Did the Eleventh Circuit err when it failed to hold, in direct conflict with the Eighth Circuit and in contravention of U.S. Supreme Court authority, that usury claims against a national bank necessarily arise under Section 30 of the National Bank Act, providing district court with removal jurisdiction under the doctrine of complete preemption?
[4:49 PM | Tom]
Torricelli Follow-Up #3. Here are the stories by the New York Times , Washington Post, and CNN.com on today's U.S. Supreme Court filing by the Republicans.
[9:52 AM | Tom]
Torricelli Follow-Up #2. This A.P. report says that Republicans will ask Justice Souter, as the Circuit Justice for the Third Circuit (and thus for cases coming from the New Jersey state courts) for a stay of the New Jersey Supreme Court's ruling. Here is the Republican candidate's statement.
[8:16 AM | Tom]
Torricelli Follow-Up. Here is the latest word from the A.P. on the Republicans' plan to seek U.S. Supreme Court review this morning, and also to file suit in federal district court. Here is the Republican candidate's statement.
[8:15 AM | Amy]
Interesting Cert. Petition. In No. 02-403, Federal Election Commission v. Beaumont, the Solicitor General has asked the Court to review the Fourth Circuit's decision that the Federal Election Campaign Act's ban on corporate contributions violates the First Amendment as applied to a nonprofit advocacy corporation that accepts minor corporate donations. The question presented is: Does the Federal Election Campaign Act's ban on direct campaign contributions and independent expenditures in connection with federal elections by corporations and unions violate the First Amendment if it is applied to a nonprofit corporation whose primary purpose is to engage in political advocacy? (Note: The petition has not yet been posted on the SG's website; we will provide a link as soon as one becomes available.)
[8:04 AM | Tom]
Affirmative Action - Follow Up. Here is the Petition for a Writ of Certiorari before judgment in the University of Michigan affirmative case (Gratz v. Bollinger) and here is the Press Release of the Center for Individual Rights, counsel to the petitioners.
[11:39 PM | Tom]
Affirmative Action. Here is the Associated Press's report on the Petition for a Writ of Certiorari Before Judgment filed in the University of Michigan affirmative action case. The en banc Sixth Circuit, of course, narrowly upheld the University of Michigan Law School's affirmative program, and that ruling is pending before the U.S. Supreme Court in No. 02-241, Grutter v. Bollinger. The undergraduate case (known as Gratz) isn't yet on the Court's electronic docket. Our bet is that this filing will prod the Sixth Circuit into releasing its ruling in the undergraduate case. They have around six weeks to do so before the Supreme Court confronts the issue by acting on the law school case.
[11:27 PM | Tom]
License plate dispute. Here is a report that the Supreme Court yesterday refused to stay the Fifth Circuit's ruling permitting Louisiana to issue "Choose Life" license plates.
[11:17 PM | Tom]
Torricelli. It's being widely reported, including here at CNN.com and here at the New York Times, that Republicans plan to seek review in the U.S. Supreme Court of the New Jersey Supreme Court's ruling that another Democratic nominee can replace Sen. Torricelli on the November ballot. The word is that the Republicans will likely try to act tomorrow, framing the case as a reprise of Bush v. Gore. We'll keep you updated.
[10:07 PM | Amy]
Interesting Cert. Petitions. We will summarize interesting cert. petitions as they come to our attention. First up is No. 02-961, United States v. American Library Ass'n (actually a jurisdictional statement), in which a federal district court invalidated the Children's Internet Protection Act, which requires public libraries seeking federal funding of their Internet operations to install software filters to block materials that are "obscene," "child pornography," or "harmful to minors." The question presented -- as framed by the Solicitor General -- is whether the Act exceeds Congress's power under the Spending Clause by inducing public libraries to violate the First Amendment.
UPDATE. appellateblog has the link to the district court's opinion on findlaw.
[8:35 PM | Tom]
United States v. Bean. On October 16, Tom Goldstein will argue No. 01-704, United States v. Bean, on behalf of the respondent, Tommy Bean. The case presents an interesting question regarding the circumstances in which one federal statute will be said to repeal another. The case has received much more attention than it otherwise might because it arises in the context of the right to bear arms. Here are the links to the opening and reply briefs filed by the United States. You can see our brief here.
[7:22 PM | Tom]
The first argument week. Over the first three days of the October sitting, the Justices will hear arguments in important cases from several leading oral advocates.
Update. Roy Englert, who knows more about the Supreme Court than just about anybody, has been good enough to forward the official hearing list for October with the list of oral advocates.
On Monday, former Solicitor General Seth Waxman -- widely regarded as one of the top five advocates (and three of the other four will appear in the same week) -- will argue No. 01-896, Ford Motor Co. v. McCauley, which is a case about diversity jurisdiction. The specific question presented is whether the cost of complying with the injunction sought by a class should count towards the $75,000 amount in controversy requirement of the diversity statute. The Court on September 13, 2002, ordered the parties to brief whether the defendants can appeal the dismissal of the complaint for lack of diversity jurisdiction even though they nominally won in the district court. The Court back in June denied the Solicitor General's motion to participate in oral argument on the defendants-petitioners' side. The Solicitor General had earlier filed in support of their position. Seth Waxman originally was scheduled to argue two cases in the same week, but the Clerk's office rescheduled the second one (No. 01-7662, Miller-El v. Cockrell) to avoid the time crunch.
On Tuesday, Principal Deputy Solicitor General Paul Clement, Don Verrilli, and Larry Tribe (a second of the leading advocates) will argue No. 01-653, FCC v. NextWave Communications, Inc. (consolidated with No. 01-657), which is a bankruptcy case. The specific question presented is whether Section 525 of the Bankruptcy Code prevents the FCC from revoking a spectrum license of a debtor in bankrtupcy who fails to make a payment on the license. (Disclosure: we represent amici supporting the respondent.)
That same day, John Roberts (the third of the leading advocates) and Jeff Sutton will argue No. 01-705, Barnhart v. Peabody Coal Co. (consolidated with No. 01-715), which is a case under the Coal Act. The specific question presented is whether the Commissioner of Social Security may, after Oct. 1, 1993, assign financial responsibilities for beneficiaries of the Combined Benefit Fund for coal wokers to coal operators. Messrs. Roberts and Sutton, of course, are both pending nominees to judgeships on the U.S. courts of appeals.
On Wednesday, Solicitor General Ted Olson (the fourth leading advocate) will argue No. 01-618, Eldred v. Ashcroft, which is a copyright case. The specific question presented is whether Congress may constitutionally extend the term of existing and future copyrights by 20 years.
[7:05 PM | Tom]
Death Penalty Order. After the Court's normal order list, the Justices denied a stay of execution in No. 02-5735, Powell v. Cockrell, which sought review of an unpublished summary affirmance of the Fifth Circuit. Justices Stevens and Ginsburg dissented, as they do more often than their colleagues (see here and here) but hardly invariably (see here, here, and here). We'll make it a point to regularly check the Court's web-site to let you know about these orders as they are released.
[11:49 AM | Tom]
A note to our first readers who visited the blog early this morning. We made our first two posts last night expecting to come back to them, figuring that we wouldn't get any visitors so soon, but Howard Bashman managed to find us before we expected anyone would. Our thinking about the Court's first order list continued to develop overnight, so we've revised our initial post on that subject.
[10:01 AM | Tom]
A little more information about your devoted bloggers, Goldstein & Howe, P.C. We are a three-lawyer firm largely devoted to Supreme Court litigation. Tom Goldstein started the firm three years ago almost to the day. Amy Howe (Tom's wife) joined a little over two years ago. John Bronsteen just joined after finishing his clerkship (although he isn't listed on the firm's web-site because his admission to the bar isn't done yet). Our biggest upcoming filings at the Court over the next couple of weeks will be the cert. petition in Nike v. Kasky (a First Amendment case in which we are co-counsel with Larry Tribe, Walter Dellinger, and the Brobeck firm) and a merits amicus brief in the State Farm punitive damages case. Our next argument is United States v. Bean on October 16.
[9:44 AM | Tom]
Coverage of the Court. As a testament to the fact that the Court's orders yesterday were less than earth-shattering, only the Washington Post provides coverage, and it does so through a wire story rather than a piece by its Court reporter, Chuck Lane.
[9:29 AM | Tom]
Apologies for the fact that yesterday's installments didn't provide any detail on the granted cases. We're still getting the hang of this blogging thing.
1. Clackamas is an important case for small businesses. Several federal statutes, including particularly civil rights statutes such as the Americans With Disabilities Act, the Fair Labor Standards Act, and the Age Discrimination in Employment Act apply to companies with at least 15 employees. The Ninth Circuit held that shareholder-operators count towards the 15, acknowledging a circuit split.
2. Massaro is a habeas procedure case. The question is whether ineffective assistance of counsel claims should be raised on direct review or instead collateral attack. From the S. Ct. practitioner's perspective, the case is particularly interesting because the petitioner's counsel include Eugene Gressman, one of the original authors of the legendary Stern & Gressman treatise on Supreme Court practice.
3. Zapata is an appellate procedure case. FRAP 4(a)(3) provides that cross-appeals may be filed "within 14 days after the date when the first notice [of appeal] was filed." The question is whether this provision is jurisdictional or can be ignored by the court of appeals based on the circumstances. The Federal Circuit held that a cross-appellant who receives the notice of appeal late still must file a motion for an extension of time to avoid the effect of Rule 4(a)(3).
4. Woodford is another habeas procedure case. The question is whether a case is covered by the AEDPA because, although the petitioner sought appointment of counsel before AEDPA's effective date, he didn't file his habeas petition until afterwards. The grant is a little surprising because the "date" in question is in 1996 and the Supreme Court's ruling won't have much prospective significance. They likely agreed to resolve the circuit split over the question presented because there are still so many habeas petitions kicking around the federal courts that date back to the AEDPA transition.
[9:13 AM | Tom]
Day two. Our precise plans for SCOTUSblog are still in flux, but here's a sense of the direction were headed. We intend to cover the Supreme Court comprehensively -- all of its opinions and orders -- but we want to focus our attention on the most important cases. So, we'll likely include quick summaries of the cases involving minor circuit splits while providing a fair amount of detail -- including, for example, reports on oral arguments -- for the major cases. We hope to make copies of the most interesting and promising cert. petitions available. Guest commentators will be making surprise appearances to give their take on decisions, and sometimes even the cases they argued.
[9:53 PM | Tom]
First up, the first orders list from the Supreme Court's "post-summer conference" -- i.e., the meeting of the Justices at which they consider the thousands of petitions that have become ripe for action during the summer recess. In later posts, we'll include much more information (than you could ever want to know) regarding the cert. process, including the Court's inner workings. Today, the Court granted cert. in four cases. Orders denying cert. will come out on Monday, October 7.
Over the past few hours, there has been a reasonable amount of debate over whether there will be additional grants on the 7th as well. The answer is almost certainly yes. (If we turn out to get this point wrong in only our second blog entry, we may call the whole endeavor off.) It's implausible to believe that only four cases would be granted from the summer list. And the precise disposition of a couple of cases makes it pretty clear that the Justices aren't done. But why release only four if there are more? That likely has to do with the Court's argument calendar. The Justices have already selected 41 cases -- 10 for October and 10 for November, all of which are set for argument -- as well as 21 others, which will be allocated as 12 for December and 9 for January based on the Court's calendar. (See summaries of all the granted cases here.)
If the Court had taken only 1 case today, we would know the Justices were just releasing enough grants to fill in the remainder of January calendar because there are a total of 10 slots available for than month. But they took 4. There isn't any ready answer. Arguably they need 2 cases to fill January because they may have two cases argued together -- probably these two (here and here) relating to Indian law. Even that seems doubtful, however, because the Court's order that the cases be argued "in tandem" likely means "back to back," not "together." Nonetheless, our conclusion remains that the Court will take more cases, which will be argued in February, on the 7th. (You can see our list of the petitions we think have the best chance here.)
Here are the four in docket-number order:
1. No. 01-1435, Clackamas Gastroenterology Assocs., P.C. v. Wells, from a decision of the Ninth Circuit.
2. No. 01-1559, Massaro v. United States, from an unpublished order of the Second Circuit. (Unfortunately, you have to search the Second Circuit's site by the case's docket number in that court -- 00-2720 -- because the site doesn't provide separate url's for individual opinions.)
3. No. 01-1766, Zapata Indus. v. W.R. Grace & Co.-Conn., from an unpublished order of the Federal Circuit. This one doesn't seem to be available on the web at all.
4. No. 01-1862, Warden v. Garceau, from a decision and order on rehearing of the Ninth Circuit.
[9:40 PM | Tom]
This is the birth of SCOTUSblog, the blog of Goldstein & Howe, P.C. devoted to the Supreme Court of the United States. We'll write more about our firm in the coming days and weeks, but you can visit our web-site in the meantime if you're interested.
From the outset, we want to acknowledge the work of Howard Bashman at appellateblog, which inspired us to jump into blogging. Knowing full well that we couldn't hope to match Howard's efforts, which cover the breadth of appellate law and occassionally range broadly across legal matters, we decided to stick strictly to our turf, which is Supreme Court litigation.
First and foremost, this blog will bring you timely updates on orders and opinions of the Court, as well as petitions for certiorari that have been filed and that will be acted upon. But we plan to include a variety of other features in the hope of making this a clearinghouse for information about the Court and its work. We encourage you to e-mail us at scotusblog@goldsteinhowe.com with your comments and suggestions.
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