In the last round of orders issuing during the Supreme Court’s summer recess, the Justices on Friday refused to give British American Tobacco Co. another chance to challenge the scope of the RICO anti-racketeering law.  Without comment (and with Justice Elena Kagan not taking part), the Court denied a reheating petition to BATCo, thus leaving undisturbed its June 28 order refusing to hear the company’s legal claims.  (The case is British American Tobacco v. U.S., 09-980).

In its rehearing petition, BATCo had argued that the D.C. Circuit Court’s ruling applying RICO to conduct of the company that occurred largely abroad had been undercut by the Supreme Court’s ruling June 24 in Morrison v. National Australia Bank (08-1191).  The Morrison decision barred overseas application of U.S. securities law. BATCo argued that the same rationale should free it from RICO liability.

It does not appear that the Court considered asking for a response to the rehearing petition. Without such a request, there was no chance for rehearing to be granted.

The Justices’ speeches and appearances this summer continue to garner news coverage.  At the Blog of LegalTimes, Tony Mauro reports on a discussion of cameras in the courtroom last week at the Tenth Circuit Bench and Bar Conference.  While Justice Ruth Bader Ginsburg concluded that the Court should refrain from allowing cameras if any Justice has a strong objection to them, Beverley McLachlin – the Chief Justice of the Canadian Supreme Court — described the Canadian Supreme Court’s generally unremarkable experience with cameras in its courtroom.  Meanwhile, Constitutional Law Prof Blog highlights Justice Sotomayor’s response to a question at the University of Denver last week, in which she said that, despite the Court’s recent ruling in Berghuis v. Thompkins, the Court is not “eroding Miranda.” On her Court Beat blog, Joan Biskupic discusses Justice Sotomayor’s response to a different student question, about the “biggest sacrifice” Sotomayor made in pursuing her career.  That sacrifice, Sotomayor said, was “taking this job when I know that I am on the tail end of my mother’s life.”

Briefly:

• The L.A. Times editorial board weighs in on Weise v. Casper (No. 10-67), in which a cert. petition was filed by two Denver residents who were ordered to leave a 2005 town hall meeting in which then-President Bush was scheduled to discuss Social Security because one petitioner’s car had an anti-Bush bumper sticker.   The board urges the Court to grant review and recognize the “crucial distinction” between open events like town hall meetings and closed events like political rallies.

• Yesterday the full D.C. Circuit denied rehearing en banc in a Guantanamo case about the government’s power to detain noncitizens suspected of terrorism; but as they did so, as Lyle reports for SCOTUSblog, the judges also “narrow[ed] the scope” of the prior panel decision.  At Balkinization, Steve Vladeck writes that the panel decision’s “significance in other cases has been unquestionably lessened (along with any chance that the Supreme Court would feel the need to step in).”

• The Huffington Post’s Sam Stein discusses Senator Patrick Leahy’s suggestion (reported in Vermont’s Times Argus) that President Obama could make three to four Supreme Court nominations in the next six years.  Stein contends that Senator Leahy’s prediction seems to be “unguardedly wishful.”

(2:30 p.m. Expanded and updated.)

After pondering the issue for more than three months, the full D.C. Circuit Court unanimously refused on Tuesday to reconsider the most sweeping opinion that Court has yet issued against the legal claims of detainees at Guantanamo Bay.  But, in doing so, seven of the nine active judges on the Court made an effort to narrow the scope of that ruling, saying its broadest statements were unnecessary to the outcome.  That effort was joined by a senior judge who had been on the original panel, who wrote separately. The denial of en banc review produced 113 pages of opinions.  Separately, the three-judge panel also denied rehearing without an opinion.

The panel’s decision last Jan. 5 in the case of Al-Bihani v. Obama (Circuit docket 09-5051) upheld a wide-ranging view of the government’s authority to detain non-citizens suspected of terrorism, ruling that the power is not limited in any way by international law — a view that even the Obama Administration indicated it did not share.  A blog post discussing the original decision can be found here; the Administration’s view was discussed in this post.

The seven active judges said they had voted to deny en banc review “to determine the role of international law-of-war principles in interpreting” Congress’s 2001 anti-terrorism resolution “because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits.”  It also noted the Obama Administration’s views on that point.

Justice Janice Rogers Brown, who wrote the panel’s broad opinion, wrote separately on Tuesday, commenting that her seven colleagues had voted against reconsideration with “a cryptic statement that exhibits no apparent function other than to mystify.”  She said that, plus the Administration’s “ambivalent” position — rejecting the panel view on law-of-war impact yet supporting a denial of rehearing — and the writing of other members of the Court had had the “cumulative effect” of “muddy[ing] the clear holding of Al-Bihani that international law as a whole does not limit the AUMF’s grant of war powers.” (AUMF refers to Congress’s 2001 Authorization for Use of Military Force, passed shortly after the terrorist attacks of 9/11. That resolution is the only authority that the Obama Administration cites for presidential detention power.)

Judge Brown’s separate opinion was somewhat defensive, suggesting that the outcome of Tuesday’s action was “the costly expedient of making a rather common-place judicial proposition impenetrably obscure.”  She said that her colleague Judge Brett M. Kavanaugh’s 87-page separate opinion amounted to a claim that international law could not be enforced at all as a limit on the President’s war-making powers under the AUMF, and that a separate opinion by Senior Judge Stephen F. Williams (who as a member of the panel did not support the breadth of that ruling) was proposing “a brave new role for judges in wartime: that of supervisors of the battlefield.”

She launched into her own exploration of the issue, a 15-page opinion which, she indicated, was offered to “provide as much clarity as possible,” in order to avoid leaving “all parties in doubt about international law’s relation to the AUMF.”

Although federal District judges in Washington have been applying the Al-Bihani decision to detainee cases that have arisen since that ruling came down some eight months ago, the international law issue has not been treated as it curbed their judicial power significantly.  How they will react to Tuesday’s writings is unclear at this point.  The reality for those judges is now that there is no controlling precedent in the Circuit on the role that international law plays in defining the president’s powers of detention.  Judge Brown’s panel opinion and its discussion on that point now appears to have been undermined by the views of the seven other judges, essentially treating that discussion as mere dicta. And the opinions of Judges Kavanaugh and Williams speak only for themselves.

One thing the Tuesday actions did settle, though, was that the Al-Bihani decision is not going to be reconsidered.  Much of it stands as the Circuit Court’s first attempt to clarify the scope of detainee rights and detention authority in the wake of the Supreme Court’s 2008 decision in Boumediene v. Bush. That ruling left to lower courts how to implement the detainees’ right to challenge their captivity.  Aside from the panel discussion of the international law issue, that opinion also held — and, on this, it is a binding precedent — that detention power is not limited to those who are part of an official state military or to a civilian who has committed a direct hostile act, such as firing a gun in combat.  Also binding precedent is the panel’s rejection of every one of the claims by the detainee in this case that the procedures used in his habeas case were inadequate.

The lawyers for that detainee, Ghaleb Nassar Al-Bihani, a Yemeni national at Guantanamo Bay since 2002, had asked both the panel and the en banc Court to reconsider the panel decision.  Since the briefing on that question was completed on May 13, nothing had been heard from the Circuit Court.  The length of Tuesday’s writings probably accounted for most of the intervening three-plus months.

Judge Kavanaugh’s long opinion joining in the denial of rehearing sought to shore up presidential detention power by rejecting any limits on that power by international law.  “International-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the AUMF,” he wrote.  International law does not automatically become a part of domestic U.S. law, and Congress did not incorporate it into the 2001 resolution, according to Kavanaugh.

At the WSJ Law Blog, Ashby Jones recaps Dahlia Lithwick’s recent article (which Amanda covered in yesterday’s round-up) on the possible effects of having three women on the Court.  Meanwhile, in a second post at Slate, Lithwick discusses Justice Ginsburg’s recent appearance at the Tenth Circuit Judicial Conference in Colorado Springs, during which the Justice read a speech prepared by her late husband for the event.  Noting that Justice Ginsburg has “almost single-handedly convinced the courts and legislatures to do away with gender classifications,” Lithwick concludes that the Justice “is still the mother of all grizzlies to me.”

Briefly:

• The editorial board of the New York Times discusses the cert. petition filed by Wal-Mart last week, and it urges the Court to categorize the roughly one million women who have worked for the corporation as a class, which would give them the opportunity to make a case against Wal-Mart’s employment practices.
• JURIST reports on a cert. petition filed Friday by Microsoft Corporation appealing a lower court ruling finding the company guilty of patent infringement.  Patently-O also has coverage of the Microsoft appeal.
• At USA Today, Joan Biskupic previews Snyder v. Phelps, in which the Court is scheduled to hear oral arguments in October.
• ACSblog reports that during the recent Ninth Circuit Judicial Conference, Justice Kennedy lamented the slow pace of judicial confirmations, urging the public to “understand that the excellence of the federal judiciary is at risk.”
• ACSblog also covers a speech by Senator Sherrod Brown at Ohio State University’s Moritz College of Law in which the Senator criticized the Court’s January decision in Citizens United.
• At Concurring Opinions, Daniel Solove interviews Ronald Collins about his new book on the late Justice Oliver Wendell Holmes, Jr.  In the interview, Collins highlights Holmes’s five most significant writings and addresses the late Justice’s changing approach to the First Amendment.
• Finally, Eugene Volokh contrasts two recent Supreme Court decisions – McDonald v. Chicago and Cooper Industries v. Leatherman Group - at the Volokh Conspiracy, highlighting their differing approaches to the Excessive Fines Clause.

Last week, the Acting Solicitor General filed invitation briefs in two cases, recommending that cert. be denied in both Placer Dome, Inc. v. Provincial Government of Marinduque (09-944) and Hogan v. Kaltag Tribal Council (09-960).  At issue in Placer Dome is the power of federal courts to rule on a case that involves potential foreign policy issues because a foreign government is involved; the invitation brief is available here.  At issue in Hogan is whether Indian tribes in the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the State to give full faith and credit to the decrees entered in those proceedings; the invitation brief in that case is available here.

On Friday Justice Ruth Bader Ginsburg spoke at the 2010 Tenth Circuit Bench and Bar Conference in Colorado Springs. After delivering a speech written by her late husband, Justice Ginsburg joined Beverley McLachlin, Chief Justice of Canada, in a question-and-answer session moderated by NPR’s Nina Totenberg. Justice Ginsburg declined to weigh in on the question of televising oral arguments at the Court, but she did speculate that televising confirmation hearings has extended the confirmation process. The Colorado Springs Gazette, The Hill, and the Associated Press have coverage. Video of Justice Ginsburg’s remarks and the question-and-answer session is available at C-SPAN’s Video Library. Justice Sonia Sotomayor also spoke at the conference in a closed-door session with the judges on Saturday.

Briefly:

• At Slate, Dahlia Lithwick considers whether and how the presence of three women on the Court might “change the court in any real way.”
• At the Volokh Conspiracy, Jonathan Adler reports on a petition for a writ of mandamus recently filed by the plaintiffs in Comer v. Murphy Oil, a public nuisance suit against several energy companies in the Fifth Circuit.
• Adler also discusses the Solicitor General’s brief in American Electric Power Co. v. Connecticut, which Anna discussed in more detail in Friday’s round-up.  He concludes that the SG’s legal arguments are “rather modest and quite sensible.”

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

The schedule of merits briefs due this week follows the jump.

Tuesday, August 31:

• Petitioner’s brief in Milner v. Department of the Navy (09-1163)
• Petitioner’s brief in Pepper v. United States (09-6822)
• Respondent’s brief in Costco v. Omega (09-1423)

Wednesday, September 1:

• Petitioners’ brief in Chamber of Commerce v. Candelaria (09-115)
• Respondent’s brief in Staub v. Proctor Hospital (09-400)
• Petitioners’ reply in NASA v. Nelson (09-530)

Friday, September 3:

• Petitioners’ brief in Janus Capital Group v. First Derivative Traders (09-525)