At its May 9, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of legislative prayer practices, successive habeas motions under the Antiterrorism and Effective Death Penalty Act, review of withdrawal from a remedy imposed by the Federal Energy Regulatory Commission, and a suspect’s requests to contact an attorney.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Berghuis v. Moore12-1074

Issue: Whether a suspect unequivocally invokes his right to counsel under Edwards v. Arizona, when he makes a simple request to contact an attorney but does not express an unwillingness to speak with police without the attorney present.

 

Suggs v. United States12-978

Issue: Whether, when a prisoner’s first federal habeas motion results in the entry of a new sentencing judgment, a subsequent habeas motion is “second or successive,” within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§2244 and 2255(h), when it challenges the underlying conviction rather than the terms of the new sentence.

 

 

 

Louisiana Public Service Commission v. Federal Energy Regulatory Commission12-852

Issue: Whether the Federal Energy Regulatory Commission (FERC) may refuse to examine the unduly discriminatory consequences of a wholly owned company’s withdrawal from a FERC imposed remedy adopted to eliminate undue discrimination on the facilities owned by six of Entergy’s subsidiary operating companies that serve customers in four states, but which are operated as a single integrated system, based solely on a provision of the Entergy affiliate tariff that permits withdrawal.

 

Grounds v. Sessoms12-804

Issue: (1) Whether, when the suspect in custody makes an ambiguous or equivocal reference to counsel before receiving Miranda warnings, “clearly established Federal law” as determined by this Court forbids the police from advising the suspect of his Miranda rights and then conducting an interrogation after he waives them; and (2) whether, under the “highly deferential” standard of review set out in 28 U.S.C. § 2254(d), it was objectively unreasonable for the state court to conclude that respondent did not unambiguously and unequivocally invoke his right to counsel before receiving Miranda warnings.

 

Valenzuela v. Cliett12-773

Issue: Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.

 

Elmbrook School District v. Doe12-755

Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

 

Town of Greece v. Galloway12-696

Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

 

Nevada v. Jackson12-694

Issue: Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

 

Lawson v. FMR LLC12-3

Issue: Whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

 

Allshouse v. Pennsylvania11-1407Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, are among the counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.

Issue: Whether a child’s statements in an interview with a child protection agency worker investigating suspicions of past abuse are “testimonial” evidence subject to the demands of the Confrontation Clause under Crawford v. Washington.

In association with Bloomberg Law

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it. 

Briefly:

• At The Volokh Conspiracy, Jonathan Adler weighs in on Adam Liptak’s article in The New York Times (which Marissa covered in yesterday’s round-up), reporting on a study which characterized the Roberts Court as particularly friendly to business interests. He analyzes the study cited in the article and argues that, “[u]ltimately, if one wants to know whether the Court is more or less friendly to business (or any other interest) one should look at the doctrinal result of the Court’s decisions.”
• At Dorf on Law, Mike Dorf uses the Court’s recent order dismissing as improvidently granted Boyer v. Louisiana, a speedy trial challenge against the state, as an opportunity to reconsider the “rule of four” – the Court’s longstanding practice of requiring the affirmative vote of at least four of the nine Justices to grant review.
• Jess Bravin of The Wall Street Journal reports on recently discovered documents showing that the Court in 1956 agreed to relocate to Asheville, North Carolina, in the event of a nuclear attack on Washington, D.C.

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The petition of the day is:

Behenna v. United States12-802

Issue: Whether a servicemember in a combat zone categorically forfeits the right to self-­defense as a matter of law by pointing a firearm without authorization at a suspected enemy.

In association with Bloomberg Law

Analysis

The Obama administration is making a sustained effort to keep the youngest girls who are sexually active from having easy access to the pregnancy-preventing drug known as “Plan B.”    Taking another step toward what may be an ultimate test in the Supreme Court, the administration will ask a federal judge in New York at a hearing Tuesday to put on hold his decision to make Plan B available over the counter — without a prescription –to women of all ages.

Such access, the federal lawyers will argue, should be open only to those who are fifteen years old or older — if they can prove their age.  That will run counter to the ruling earlier this month by Senior U.S. District Judge Edward K. Korman of Brooklyn, that the government by Wednesday must lift all restrictions on retail sales of at least one of two current versions of Plan B.

In advance of Tuesday’s hearing, however, the judge has said that he will give the administration time to ask the Second Circuit Court to delay his ruling, if he does not do so, while the government challenges it in a planned appeal.

President Obama and health officials in his government have taken up not far from where the Bush administration left off in seeking to restrict drugstore sales of Plan B — a medication that has proven to be quite effective in preventing pregnancy if taken within three days after unprotected sexual intercourse.   The main ingredient in both current versions of Plan B is a synthetic hormone, levonogesterol.  In the first version, known simply as Plan B, the drug is taken in two doses.  More recently, it has become available in a one-dose version, called Plan B One-Step.

Plan B is considered to be an “emergency” contraceptive because it is available to reduce the risk of pregnancy even after sexual activity without having taken any preventive action.

From its introduction in 1999, Plan B has been at the center of a cultural controversy over its perceived implications for teenagers beginning to engage in sexual activity.  Those who support access to it argue that teens are having sex at younger ages anyway, and need protection against pregnancy.  Critics of Plan B argue that it encourages teens to start having sex earlier, because they think they now can do so without risk.

Initially, the drug was available only with a doctor’s prescription, for any woman seeking it.  The government in 2006 began allowing women who were eighteen or older to obtain it without a prescription.  Younger women still needed a doctor’s authorization.   In 2009, in an earlier phase of the court case over Plan B that began in 2005, Judge Korman ordered the Food and Drug Administration to lower the no-prescription access age to seventeen, but eligible women still had to prove their age and could buy the product only from a pharmacy.   FDA agreed with that decision.

When Plan B One-Step — the single-pill version — gained FDA approval in 2009, the same age and other limitations still applied.

Those restrictions have been under continuous legal challenge by women’s rights advocates, who want Plan B to be made available over the counter with no age or other restrictions.  Judge Korman has been largely sympathetic to their pleas for wider access.

His 2009 decision, ordering FDA to reconsider its refusal to lift those age and sales limitations, accused the agency of acting under political pressure “emanating from the White House”– meaning, at that time, the George W. Bush White House.  The agency must consider the issue anew without yielding to such pressure, the judge declared then.

FDA did not act on the judge’s order for nearly three years, after President Obama took office.  In December 2011, the FDA decided that the one-pill version was “safe and effective and should be approved for non-prescription use for all females of child-bearing potential.”   That decision, however, was vetoed by Health and Human Services Secretary Kathleen Sebelius, who ordered the agency not to allow unrestricted marketing of Plan B One-Step to all ages. “If the application is approved,” Sebelius said at the time, “the product would be available, without a prescription or other point-of-sale restrictions, even to the youngest girls of reproductive age,” which she said might be as early as age eleven.  President Obama backed that conclusion.

That is where matters stood when Judge Korman returned to the issue in a ruling on April 5.   “This case,” he wrote, “is not about the potential misuse of Plan B by 11-year-olds.”  He added that Plan B was “among the safest drugs sold over the counter” and that, in any event, “the number of 11-year-olds using these drugs is likely to be miniscule….The invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.”

While the judge said that the case was controversial because it involved access to a preventive medication “for adolescents who should not be engaging in conduct that necessitates the use of such drugs,” he said the legal issue was a straightforward one about whether the government should switch a prescription drug to over-the-counter availability, and whether consumers could understand how to use such a drug safely and effectively.  “The standards,” he added, “are the same for aspirins and for contraceptives.”

Secretary Sebelius’s veto of the FDA recommendation on Plan B One-Step, the judge wrote, “forced the agency to ride roughshod over the policies and practices that it has consistently applied in considering applications for switches in drug status to over-the-counter availability.”  He said that the decision by Sebelius was based on authority that she did not have, because Congress had given the FDA, not the HHS Secretary, the authority to judge when to allow over-the-counter sales of a drug.  And, he concluded, Sebelius’s order “was politically motivated, scientifically unjustified, and contrary to agency precedent.”

Judge Korman ordered the FDA to make a version of Plan B available without a prescription and with no age or retail sale restrictions within 30 days, but he said FDA could consider adding new labeling instructions on its use, and it could choose to limit over-the-counter access solely to the one-pill version — Plan B One-Step.

Technically, Judge Korman was not acting on Sebelius’s December 7, 2011, veto of the FDA approval of Plan B One-Step, but rather on the FDA’s denial five days later of a public petition to provide unrestricted retail access to Plan B — the original, two-pill version.   But, the judge said, once Sebelius had taken the position that the drug should not be available to younger girls, that dictated what FDA could do on the retail access issue for any version, and what FDA was then compelled to do in denying access was illegal and unjustified.

However, the distinction of what was technically in front of the judge last month forms part of the legal basis of the challenge that the Obama administration will be pressing at the scheduled hearing before the judge Tuesday.

It is important to note first, however, that the FDA itself took a new position on April 30, and that decision lowered the age of access to Plan B One-Step to girls who are fifteen years old — thus making it available without a prescription for all women fifteen years old and older.  The FDA said that it was now satisfied by the drug’s manufacturer — Teva Women’s Health, Inc. — that the one-pill version could safely be sold over the counter to girls as young as fifteen.  They will have to be able to prove their age, however, and the drug will be sold only with a label requiring the cashier to check the buyer’s age.    A study by Teva, the FDA said, showed that “women age 15 and older understood that the product was not for routine use and would not protect them against sexually-transmitted diseases.”

The FDA announcement took note of the order earlier in the month by Judge Korman to lift all retail restrictions for all ages, and insisted that its move to allow access to fifteen- and sixteen-year-olds for the first time was independent of the judge’s latest decision.  It was up to the Justice Department, FDA said, to decide what it would do about the judge’s April 5 ruling.

The following day, the Justice Department notified Judge Korman that it was going to appeal his decision.  The Department argued that the judge was wrong “for at least two reasons.”   First, it said that the judge only had before him a public petition related to Plan B access, so he had no authority to order access to Plan B One-Step.  Second, it said, the judge had no authority to issue a direct marketing order, but should have sent the case back to the FDA to either reconsider its denial or to provide a fuller explanation.

Because of those asserted errors, the Department said, it stands a good chance of persuading the Second Circuit Court to overrule Judge Korman.  In the meantime, it asked the judge to put his ruling on hold while the appeal proceeds and, if he were unwilling to do even that, it asked that he grant a temporary delay so that the government can ask the Second Circuit for a postponement.  The next steps will be the subject of Tuesday’s hearing.

In association with Bloomberg Law

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

Briefly:

• Adam Liptak of The New York Times reports on a new study which concludes that, although the Roberts Court as a whole is only “slightly more conservative” than the Burger or Rehnquist Courts, the Court’s decisions in business cases have been “far friendlier to business than those of any court since at least World War II.”
• At Buzzfeed, Chris Geidner explains how the Court’s ruling in United States v. Windsor, the challenge to the constitutionality of the federal Defense of Marriage Act, might affect the debate over the Uniting American Families Act, a new proposal that would make same-sex couples eligible for green cards.
• In this video at the Huffington Post, Mike Sacks interviews Jess Bravin of The Wall Street Journal about his new book, The Terror Courts: Rough Justice At Guantanamo Bay.
• UPI’s Michael Kirkland discusses the “Supreme Court spring – the time between the end of the term’s arguments in late April to the rising of the court for the summer recess in late June [that] traditionally sees many of the high-court’s heavyweight decisions,” highlighting four of the Term’s most controversial cases and noting that Justice Anthony Kennedy may have the deciding vote in each.
• At Jost on Justice, Kenneth Jost examines retired Justice Sandra Day O’Connor’s recent comments expressing doubt about the Court’s cert. grant in Bush v. Gore. [Disclosure:  The law firm of Thomas C. Goldstein, P.C., now known as Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to respondent Al Gore in that case.]

In association with Bloomberg Law

This morning at 10:30 Eastern, we’re doing a Q&A session on Twitter. The idea is similar to how we answer questions during live blogs here on the site, except that the answers will be 140 characters or less. Twitter users can follow @SBQandA and flag their questions by using #scotus.

In association with Bloomberg Law

On Thursday the Justices are scheduled to meet for their May 9 Conference. Our list of “Petitions to watch” for that Conference will be available soon.

We expect orders from that Conference on Monday, May 13.  The Court may issue opinions in argued cases that day as well; if so, we will update the blog as soon as we have additional information.

In association with Bloomberg Law

This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

We are happy to present the third interim Stat Pack for October Term 2012. This edition features updates for each of our charts, including the popular “Opinions by Sitting” table and Justice Agreement tables. You can download the full Stat Pack here.

This edition of the Stat Pack features the following charts:

• Opinions by Sitting
• Circuit Scorecard
• Cases by Vote Split
• Make-Up of the Merits Docket
• Opinion Authorship
• Majority Opinions
• Frequency in the Majority
• Justice Agreement
• Pace of Grants
• Pace of Opinions
• Oral Argument – Advocates

The Stat Pack reveals several interesting trends, some of which are discussed below.

Majority Opinion Authorship: Chief Justice Roberts and Justice Ginsburg have dashed ahead of their peers in the race to release opinions before the end of June. Both Justices have five majority opinions, compared to four opinions for Justices Scalia, Thomas, Breyer, Sotomayor, and Kagan. Justices Kennedy and Alito trail slightly with three majority opinions each. The Chief Justice and Justice Ginsburg, who have ten majority opinions between them, have written opinions in nine unanimous decisions and only one divided cases. Justice Kennedy is the only Justice who has not yet written an opinion in a case that was decided with a unanimous judgment.

December produced an unusual distribution of majority opinions. The Court heard nine oral arguments that sitting, which ordinarily would mean that each Justice would be assigned to a single majority opinion. But Justice Ginsburg has already authored two majority opinions for that month – L.A. County Flood Control and Auburn Regional – while both Justices Scalia and Alito have yet to author any. The only remaining outstanding case from that month, Vance v. Ball State University, was likely assigned to one of the two Justices who have yet to write a majority opinion for the month, but the question remains: Why did Justice Ginsburg author two opinions for December? The most common explanation for a skewed distribution is the loss of a majority opinion, but both of Justice Ginsburg’s cases had unanimous judgments, making it unlikely that she took over the majority lost by another Justice.

Pace of Grants: The Court is following a strong pace of grants with 17 cases granted through April. In recent years, that pace is matched only by the rate at which cases were granted during OT10.

Pace of Opinions: In contrast to the strong pace of grants, the Court is following a more sluggish pace of opinions. It has released 39 merits opinions through April, including 36 opinions after argument and three summary reversals. Ironically, the slow pace of opinions for OT12 is matched only by the similarly slow pace paved during OT10.

The fastest opinion so far this Term from argument to opinion has been Gunn v. Minton, which was decided in only 35 days. The slowest opinion has been Kiobel v. Royal Dutch Petroleum Co., which was decided in 198 days. Fisher v. University of Texas, the affirmative action case, is the oldest outstanding case; even if it is decided at the next opinion day, May 13, it will have taken 215 days between oral argument and opinion.

Advocates: The list of top advocates is filled with many of the usual suspects and features a few new faces. Solicitor General Donald Verrilli has argued more cases than any one else: 8. He is followed by Bancroft PLLC partner Paul Clement with 7 arguments and Principal Deputy Solicitor General Sri Srinivasan. Three advocates from private practice had 4 arguments: David Frederick, Gregory Garre, and Seth Waxman. Two advocates from private practice had 3 arguments: Lisa Blatt and SCOTUSblog’s own Tom Goldstein.

New faces on the repeat-player list include Michigan’s Solicitor General, John J. Bursch, who argued two cases this Term to bring his total to five arguments (all coming in the last three Terms). Bert Rein, a seasoned litigator and co-founder of the law firm Wiley Rein LLP, argued his first two cases before the Supreme Court during OT12 and also argued two of the biggest cases of the Term, Fisher v. University of Texas and Shelby County v. Holder.

In association with Bloomberg Law

In Constitutional Interpretation and Congressional Overrides: Emerging Trends in Court-Congress Relations, a paper that I presented at the 2013 Western Political Science Association’s Annual Meeting, I identified and examined the forty-one acts of Congress nullified during the Rehnquist Court. These forty-one laws represent both the greatest number of federal statutes overturned in any nineteen-year period and the highest rate of judicial activity striking down federal law.  Especially noteworthy, the Rehnquist Court saw 29.3% of its decisions nullifying federal law overridden by Congress. This is a rate of successful overrides that is significantly higher than those cited in studies that focus solely on statutory-interpretation overrides and a rate nearly fifty percent higher than seen in a previous study examining constitutional-interpretation overrides.  Thus, the Rehnquist Court displays an increase in both judicial review and congressional overrides to constitutional-interpretation decisions. These high rates of both nullifications and overrides are indicative of a changing Court-Congress relationship and have important implications for testing and developing theories of judicial-congressional relations.

There are three major trends that emerge from my research: (1) Supreme Court Justices are sitting for increasingly longer terms, providing the president and the Senate fewer opportunities to control the Court through the appointment process; (2) the Court has been significantly more active in nullifying federal law in the last fifty years, with each of the last three Courts more active than the previous; and (3) Congress has modified the impact of these nullifications by overriding these constitutional-interpretation decisions at a rate that is substantially higher than previous studies have identified.

Figure 1 

Figure 2

Figure 3

As shown in the graphs above, when compared with the two preceding it, the Rehnquist Court nullified significantly more federal laws and did so with greater frequency. From 1986 to 2005, the Rehnquist Court struck down an average of 2.16 federal laws per year (see figure 1).  The Court’s overall average of nullifying federal laws since Marbury v. Madison is less than one per year. Prior to the four most recent Courts, the average number of acts of Congress nullified per year was only .44 (see figure 3). This indicates that the Warren Court struck down federal laws at three times the Court’s pre-1953 rate, the Burger Court at four times that rate, and the Rehnquist Court at five times that rate.

Figure 4

The period from 1990-1999 had the most federal laws struck down in a single decade with twenty-three (see figure 4). Zeroing in on the eight-year period from 1995-2002, there were thirty-one federal laws invalidated by the Court—by far the most of any eight-year period. During these eight years the Court struck down a record of 3.9 federal laws per year. This is a significantly higher rate compared to historic periods of turmoil between the Court and Congress. For example, from 1930 to 1939, only thirteen federal laws were nullified. The period from 1918 to 1936 – often seen as a time of the greatest conflict between the Court and Congress – saw twenty-nine federal laws overturned. This equates to 1.5 federal laws struck down per year, a rate that is lower than what occurred during either the Burger or Rehnquist Courts.

 

In 1957, Robert Dahl observed that on average a new Justice was appointed every twenty-two months. Based on this turnover rate, Dahl viewed President Roosevelt’s four-year wait to nominate his first Justice as unusually bad luck.  For Dahl, this extended and unlikely interval helped explain the 1930s rift between the elected and appointed branches of the federal government.  President Roosevelt’s “bad luck” is now the norm. The average term for all Justices appointed since 1940 is 16.6 years (see table 1). The average term for Justices appointed after 1950 jumps to 20.3 years. This trend is even more pronounced when looking at Justices appointed since 1970, an unprecedented 25.17 years.

Since 1970, a new Supreme Court Justice has been appointed, on average, every thirty-three-and-a-half months. This is a fifty percent increase over the first 167 years of the Court. The “lag time,” the interval of time Dahl described before current majorities could reshape the Court, is now significantly longer.  Based on Dahl’s theory, the Court will more often be out of touch with current electoral majorities.

The “continuing dialogues” model asserts that the Supreme Court does not have the final word in interpreting the Constitution; under this model, the Court engages in “dialogues” with other political actors to shape constitutional interpretation.  If the Court is being more assertive in striking down acts of Congress based on the Justices’ interpretation of the Constitution, then a logical conclusion under the “continuing dialogues” model is that Congress will respond to these decisions and try to modify them. This in fact seems to be the case. Of the forty-one federal laws overruled during the Rehnquist Court, twelve were overridden by Congress. This represents 29.3% of all constitutional cases eligible for an override. This is an almost ten percent higher rate (or a fifty-percent increase in the percentage of overrides) than found in Joseph Ignagni’s and James Meernik’s study of constitutional-interpretation overrides from 1954-1990 (which includes the first five years of the Rehnquist Court). This seems to indicate that, as the Court became more active, so did Congress. In nearly one out of three cases, when the Rehnquist Court struck down a federal law, Congress did not accept this as the final word and the constitutional dialogue continued.

The number of successful overrides during the Rehnquist Court highlights only part of the post-judicial review interaction between the Court and Congress. In fact, of the forty-one federal laws nullified by the Rehnquist Court, only fourteen failed to generate an override bill. Thus, even in cases where override legislation failed to become law, Congress was expending effort on overriding Court decisions that nullified federal law.

Some of the congressional overrides to the Rehnquist Court could best be described as being “invited.” For example, in Thomson v. Western States Medical Center, the Court struck down commercial speech restrictions as “more extensive than necessary to serve” the government’s interest. The decision did not foreclose all future commercial speech restrictions; rather, it offered boundaries for new restrictions. Judicial invitations indicate that not all legislative overrides modifying the results of a Court decision indicate hostility between the two branches.

In other instances, the Court has been overridden without inviting a congressional response. In Dickerson v. United States, the Chief Justice’s opinion for the Court stated that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  Despite that admonishment, this is precisely what Congress had done, and for thirty-two years Congress’s interpretation of the Constitution stood as the final one. The Court-Congress dialogue started in 1966, when the Supreme Court ruled in Miranda v. Arizona that the accused had a right to be informed of their constitutional rights. Two years after that decision, Congress passed the Omnibus Crime Control and Safe Streets Act (OCCSSA) of 1968, which included an override of the Miranda decision. In this instance Congress’s interpretation of the Constitution, one that directly overrode the Court’s interpretation, was final for thirty-two years. If Congress truly cannot legislatively supersede Court decisions, it is a wonder it took the Court thirty-two years to assert its authority.

If Congress is increasing its rate of constitutional-interpretation overrides in reaction to increased Court activity, then this is a sign of Congress shifting its constraints on the Court from before-the-fact appointment controls to after-the-fact overrides of Court decisions.

The current Chief Justice, John Roberts, is the youngest appointee to the Court in two hundred years.  As of the end of President Obama’s first term, the Justices on the Court who were appointed before 2005 are serving for an average of 25.6 years, and this average seems likely to increase in the future. The Roberts Court has already stuck down nine acts of Congress in its first six years, an average of 1.5 per year, placing it at nearly twice the rate of the Court’s average for all of its history. Congress for its part nearly passed an override to the Court’s decision in Citizens United v. Federal Elections Commission and has entertained bills for others. The three trends identified in this study seem likely to continue and should feature prominently in future theories on Court-Congress relations.

 

In association with Bloomberg Law

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

Thursday’s coverage of the Court continued to focus on retired Justice Sandra Day O’Connor’s recent comments to The Chicago Tribune, in which she expressed doubt about the Court’s grant of certiorari in Bush v. Gore.  At Constitution Daily, Lyle suggests that in a “constitutional crisis” like the one faced in 2000, it is “impossible to imagine that America would have been content to let a lower court resolve” the issue.  Doug Mataconis at Outside the Beltway agrees, suggesting that “an argument can be made that the Court did the right thing” in granting certiorari, as the Court’s involvement “brought some degree of certainty into the process and lent an air of legal legitimacy to the outcome of the election that was sorely lacking during the long period after Election Day.”  At the Daily Beast, Megan McArdle argues that the Court “probably came up with the least problematic response,” and that it is difficult to comprehend a way in which the Court “could have stayed out of it” – a sentiment with which Andrew Sullivan, at The Dish, agrees.  [Disclosure:  The law firm of Thomas C. Goldstein, P.C., now known as Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to respondent Al Gore in that case.]

Briefly:

• For this blog, Ronald Collins interviews Alex Wohl on the occasion of the publication of his new book, a dual biography about Justice Tom Clark and his son, Attorney General Ramsey Clark.
• At Lawfare, Steve Vladeck argues that the Court should grant certiorari in Ali v. United States, a case in which the U.S. Court of Appeals for the Armed Forces upheld the constitutionality of court-martial jurisdiction over a civilian contractor, when it meets to discuss the issue at its Conference next week.  Vladeck summarizes the case and contends that “Ali is the most important military jurisdiction case to come to the Supreme Court in the last quarter century.”
• In the ABA Journal, Dean Erwin Chemerinsky analyzes the oral arguments in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to Proposition 8) and United States v. Windsor (the challenge to the federal Defense of Marriage Act) and suggests that “it may be harder for the justices to rule narrowly than it appeared at oral argument,” given the shaky constitutional basis for some possible holdings. [Disclosure: Tejinder Singh of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by international human rights advocates in support of the respondents in Perry.  And Kevin Russell of the law firm Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel on an amicus brief filed by former senators in support of Edith Windsor.]
• Zachary Roth at MSNBC and Jeremy Leaming of ACSblog both analyze the new report by the Constitutional Accountability Center about the U.S. Chamber of Commerce’s success before the Court his Term.  Cormac also covered the report in yesterday’s round-up.
• The Associated Press and the Denver Post both have coverage of Justice Sotomayor’s visit yesterday to Denver for the opening of a state court building.

In association with Bloomberg Law

The petition of the day is:

Grounds v. Sessoms12-804

Issue: (1) Whether, when the suspect in custody makes an ambiguous or equivocal reference to counsel before receiving Miranda warnings, “clearly established Federal law” as determined by this Court forbids the police from advising the suspect of his Miranda rights and then conducting an interrogation after he waives them; and (2) whether, under the “highly deferential” standard of review set out in 28 U.S.C. § 2254(d), it was objectively unreasonable for the state court to conclude that respondent did not unambiguously and unequivocally invoke his right to counsel before receiving Miranda warnings.

In association with Bloomberg Law

The following is a series of questions posed by Ronald Collins on the occasion of the publication of Alexander Wohl’s Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (University Press of Kansas, April 2013).

Welcome, Alex.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your first book. 

Question:

Why a dual biography? Let’s start with Tom Clark. 

Answer:

Tom Clark has always intrigued me because he is one of the least studied of the modern Justices, especially when it comes to the members of the Warren Court.  Moreover, I was taken by the fact that he cannot easily be typecast, either as a judicial activist or someone who strictly embraces judicial restraint. To quote Justice Douglas, in some respects Tom Clark truly “evolved” during his tenure on the Court.  He wrote some of the most liberal opinions as well as some of the most conservative decisions and dissents during the seventeen years he sat on the bench.  At times he seemed to transcend the divide that often exemplified the Court during the era in which he served.

As I expanded my study of his career beyond his years as a sitting Justice – to his prior work as Harry Truman’s attorney general and even earlier as a Justice Department attorney – the contradictions grew more pronounced, particularly as they related to questions involving the balancing of individual rights and government power. This included his work as a young DOJ attorney helping to enforce the relocation of Japanese Americans to internment camps and then, as attorney general, in enforcing many of the anti-communist policies of the early Cold War, and on the other side of the equation, in his work promoting government action on civil rights.

Question:

So how did you move from there to Ramsey Clark?

Answer:

What captured me and helped turn a more conventional biography of one prominent legal figure into a dual biography of two important public figures, as well as a compelling father-son story, was Tom Clark’s somewhat remarkable decision in 1967 to step down (at a relatively young age) from the Supreme Court.  Why did he do it?  He wanted his son Ramsey, then LBJ’s acting attorney general, to be appointed attorney general without having to face any potential conflicts of interest.  It was remarkable not only because there was no guarantee at that point that Johnson would run again, or if he did that he would win.

As I began to study both men’s lives, it turned out to be an even more fascinating story because their lives and work ran along an ideological continuum, from Tom Clark’s early career in which he worked on and initiated a number of conservative policies, to his evolution as Supreme Court Justice who more frequently embraced many of the underlying egalitarian principles of the Warren Court, to Ramsey’s full-throated idealism and liberalism as a an assistant attorney general and then attorney general working on civil rights and other issues, and finally as a private attorney moving even further to the farthest reaches on the spectrum of legal activism. But even though the two were in some ways ideological bookends, with contrasting approaches and personalities, they also shared many underlying views about justice and the rule of law.

Question:

So what we have is a somewhat constitutionally restrained father and a son who was far more ideologically animated?

Answer:

Well yes, but they were both principled in their own ways, and sometimes in the same way.  I also think the range of constitutional interpretation they demonstrated, particularly on issues involving the balance of individual rights and government power, reveals how much individual personality can affect the actions of public officials. Tom Clark was a gregarious extrovert who easily mixed policy with politics. Ramsey was both more introspective and generally rejected politics as part of his job. Combined with his idealism, this may have made him a less effective government attorney in some ways, but a more consistent and more zealous advocate.

I wanted to show where these views came from and how they evolved through each man’s public service.  I also wanted to demonstrate how the values and understandings that led to this were transferred or shared between the two.  I thought that would be a more interesting way to tell a story than a traditional biography.

Question:

What are the most important parts or themes of the book?

Answer:

One theme at the center of this book and both men’s lives and work is the continuing challenge of balancing government power and individual rights. Both Tom and Ramsey Clark played an important role in this area in each of their government positions. Later, as a private attorney, Ramsey continued to do so, albeit from a different perspective.

Tom Clark first faced this balancing as a Justice Department lawyer chosen to help lead the enforcement of the president’s World War II order to relocate Japanese Americans from the West Coast (eventually into internment camps). Later, as attorney general, he initiated and enforced some of the most repressive policies relating to individual rights of association as part of Truman’s anti-communist policies affecting government employees. But AG Tom Clark also developed numerous policies to promote civil rights, helping to lay the groundwork for the civil rights revolution of the 1960s.

As a Supreme Court Justice, Clark continued to balance these competing interests, maintaining a strong pro-government position on national security issues even as he sometimes advanced constitutional protections of individual rights in certain areas, including criminal procedure. For instance, his opinion in Mapp v. Ohio (1961) was based in part on his view that for police to enforce the law properly they must follow the law and respect the constitutional protections.  And though he dissented in Miranda v. Arizona (1966), he later clarified that he agreed with the underlying principle involved.

Question:

How did Ramsey Clark strike the legal balance?   

Answer:

Ramsey faced the balancing issue from the opposite end of the spectrum. His basic default was in favor of protection of individual rights; he strenuously opposed actions and policies that impinged on personal justices or fairness, ranging from the death penalty to wiretapping.  And yet, as a government official he, too, faced criticism, both for what he did do and what he did not do. He was condemned by conservatives in Congress (as well as some Democrats) for his failure to prosecute the black activist Stokely Carmichael for anti-war and other protests. But Ramsey was also criticized by liberals for his prosecution of anti-war activist Dr. Benjamin Spock and other members of the “Boston Five” for their anti-Vietnam activities. In Ramsey’s view these actions were consistent; he enforced the law where there was evidence it had been broken and did not where there was none.

Question:

In his later years Ramsey moved even more to the left.  True?

Answer:

Yes.  Once he shed the constraints of government work, as a private attorney Ramsey became more publicly outspoken on issues ranging from crime and punishment to opposition to the Vietnam War. He increasingly took on left-leaning clients prosecuted by the U.S. government – from the Indian activist Leonard Peltier to police reformist Frank Serpico to the controversial political activist Lyndon LaRouche.  But he drew more criticism as he increasingly took on causes and clients who not only challenged U.S. law and prosecutions, but actively opposed U.S. foreign policy – for example, his defense of Saddam Hussein.  How these different approaches by each man evolved and how each influenced the other is an important theme running through the book.

Question:

What are some other themes of the book?

Answer:

A second important theme is the combined role the two men played in the advancement of civil rights. Remarkably, both Tom and Ramsey Clark grew up in a world of racial intolerance. Tom Clark’s grandfather was a Confederate Army officer, his father was an outspoken racist, and he was raised in a segregated environment, as was his son. And yet, the two men became strong advocates for civil rights, both within the government and outside of it.

As Harry Truman’s attorney general, Tom Clark helped devise and enforce what was to that point an unprecedented strategy of federal involvement in civil rights enforcement – replete with the use of amicus briefs, federal officials to investigate and support state police, and the creation of the first federal commission on civil rights. As a Supreme Court Justice Tom Clark played a vital role on issues of racial justice, not only by voting with the majority in cases like Sweatt v. Painter (1950) and Brown v. Board of Education (1954), but also by voting with liberals in a number of criminal justices cases involving race, and he played an influential role in part because of his Texas background.

Question:

What about Ramsey?

Answer:

Ramsey, who joined the Kennedy Justice Department as assistant attorney general for the Lands Division, quickly became a key player in the department’s civil rights activities, intimately involved with desegregation efforts at the Universities of Mississippi and Alabama, with the federal government’s involvement in the freedom rides, the lunch counter sit-ins, and the March to Selma and, later in the Johnson administration, working with Martin Luther King, Jr. and other civil rights leaders.  Ramsey’s later work as a defense attorney took this kind of advocacy even further, as he defended clients on the basis of both claimed persecution for their ideas as well as their race and association.

Question:

In your book you also talk about how the two Clarks sometimes worked in unison.  Can you say a few words about that?

Answer:

Perhaps most fascinating in this regard was how they occasionally, albeit informally, “tag-teamed” in their work. When, for instance, Ramsey was working as a DOJ official to enforce civil rights or the rights of protesters for civil rights in the south, Tom Clark was writing decisions on the Supreme Court enforcing those rights, in cases ranging from Burton v. Wilmington Parking Authority (1961), the state action case, to the sit-in cases.  Similarly, when as attorney general Ramsey argued a case involving housing discrimination, with the Justice Department acting as amicus in Jones v. Alfred Mayer (1968), he was emulating his father’s filing of an amicus brief twenty years earlier in the groundbreaking case of Shelley v. Kraemer (1948).  Another overlapping issue was wiretapping. I should point out, however, that while they were very close personally during these years, they almost never talked about work.

Question:

What more can you tell us about this dual biography?

Answer:

A lot of the Clarks’ work and a focus of the book is how each man dealt with questions of crime and law enforcement, particularly issues like wiretapping and bugging as well as the role of J. Edgar Hoover and the FBI.  As a former local prosecutor and then attorney general, Tom Clark was generally deferential to police power.  As attorney general he was befriended by Hoover and, like most other AGs, was steamrolled by him.  In his early years as a Supreme Court Justice, he maintained this approach on law enforcement, especially when it came to the government’s power to investigate so-called Communist activities.

Over time, however, Tom Clark’s views evolved. For example, he grew to accept and embrace certain limits on the police and became more sensitive to police and FBI abuses of power. His last decision as a Justice was his majority opinion in Berger v. New York (1967), an important case overturning a conviction based on an unlawful wiretapping.

Question:

Can you say something about how Ramsey Clark viewed the enterprise of government wire-tapping?

Answer:

Ramsey Clark hated government wiretapping. He felt it was “a destroyer of integrity.” In one of his first acts as attorney general, Ramsey enacted a policy of no government wiretapping, which was embraced by LBJ in the face of Republican congressional criticism.  Also, unlike any attorney general before him, Ramsey Clark sharply limited Hoover’s powers, forcing him to document and clarify various requests for wiretapping.  Predictably, Hoover fought back.

After he became a private citizen, Ramsey wrote a best-selling book titled Crime in America: Observations on its Nature, Causes, Prevention and Control (1970).  Among other ideas, it laid out the case for increased financial support and better training for law enforcement officials. It was an idea his father increasingly advocated after he retired from the Supreme Court.

Question:

Who was the more important of the two Clarks, Tom or Ramsey?

Answer:

I think you would have to say Tom Clark if for no other reason than the sheer breadth of his government activity and involvement with key policies – as an assistant district attorney, as a trial attorney at the DOJ, as head of the antitrust and criminal law divisions, as attorney general, as Supreme Court Justice for more than seventeen years, and finally as a senior judge and a leader on judicial administration issues, including the famous Clark Commission on judicial ethics.

But Ramsey Clark played a significant role on many key national policies as well, from his early involvement with environmental and Indian rights issues, to his contributions to civil rights enforcement.  Concerning the latter, Ramsey played key roles related to the 1964 Civil Rights act, the 1965 Voting Rights Act, and the 1968 Civil Rights and Fair Housing Acts, as well as the passage of gun control laws.  He was almost as influential as a former government official, drawing attention to various issues including discrimination, war and peace, the death penalty, and government overreaching and abuses of power.

 

Alexander Wohl, a former Supreme Court Judicial Fellow and Supreme Court correspondent for the San Francisco Chronicle, is an adjunct professor at American University’s Washington College of Law.

In association with Bloomberg Law

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

Retired Justice Sandra Day O’Connor’s recent remarks to the editorial board of The Chicago Tribune, in which she suggested that the Court should have denied review in Bush v. Gore, drew further coverage yesterday.  In her Opinionator column for The New York Times, Linda Greenhouse argues that “it’s her legacy that Justice O’Connor cares about and that she sees imperiled by a Supreme Court that the Bush administration pushed rightward by naming Samuel A. Alito Jr. to succeed her,” while Emily Bazelon of Slate argues that “[i]f anything, O’Connor’s late expression of doubts makes her vote in Bush v. Gore seem all the more partisan.” And at The New Republic, Linda Hirshman discusses a 1988 letter from Justice O’Connor to Senator Barry Goldwater in which she expressed support for presidential candidate George H.W. Bush, describing it as “It is vital for the Court and the nation that he” win; Hirshman cites the letter as evidence that “at least at one point, she too saw the Court as a political body.” [Disclosure:  The law firm of Thomas C. Goldstein, P.C., now known as Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to respondent Al Gore in that case.]

Other coverage focused on cases currently before the Court. In a guest column for Jurist, Bruce Abramson argues that the Court should allow the patenting of human genes in Association for Molecular Pathology v. Myriad Genetics, Inc. And at Patently-O, Myriad’s Benjamin Jackson lists nine reasons why the Court should uphold the company’s patent. The Associated Press (via The Birmingham News) reports on a bus tour of Alabama and Mississippi by activists urging the Court to uphold Section 5 of the Voting Rights Act in Shelby County v. Holder. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case.] And MSNBC‘s Dominic Perella reports on the government’s cert. petition in National Labor Relations Board v. Noel Canning, which asks the Justices to overturn a D.C. Circuit decision that limited the President’s power to make recess appointments.

Briefly:

• Stephen Wermiel has a new post in this blog’s SCOTUS for law students series, contrasting Fisher v. University of Texas at Austin with Schuette v Coalition to Defend Affirmative Action, two cases involving different aspects of race-based affirmative action. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, also represented the American Association of Law Schools as amicus curiae in this case.]
• The Constitutional Accountability Center has released a report on the U.S. Chamber of Commerce’s success at the Court in recent Terms.
• Zoe Tillman of the Blog of Legal Times reports that Antoine Jones, the defendant in last Term’s GPS tracking case, United States v. Jones, has pled guilty in his fourth trial for a drug conspiracy charge.
• Damon W. Root of Reason discusses Monday’s decision in McBurney v. Young, in which the Court unanimously held that Virginia’s Freedom of Information Act, granting Virginia residents access to all public records but withholding such rights from non-Virginians, does not violate the Privileges and Immunities Clause or the dormant Commerce Clause.
• Luke Rioux discusses the decision in Moncrieffe v. Holder, in which the Court held that when a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the Immigration and Nationality Act, at his blog, Harmless Error. [Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents the petitioner in this case.]

In association with Bloomberg Law

The petition of the day is:

Behenna v. United States12-802

Issue: Whether a servicemember in a combat zone categorically forfeits the right to self-­defense as a matter of law by pointing a firearm without authorization at a suspected enemy.

In association with Bloomberg Law

When the Supreme Court agreed in February 2012 to hear the University of Texas undergraduate admissions case, there was no question that the appeal set up a major test of affirmative action. But why, with that case still lingering on the docket as the only undecided case from the Court’s October sitting, would the Justices agree to hear a second affirmative action case, this one from Michigan, to be argued next fall?

The short answer is that the two cases are totally different.

Oral argument in University of Texas undergraduate admissions case (Art Lien)

Just how they differ and what the Court may consider in each of the cases is worth exploring. The answer may be of interest to students of the Supreme Court and to those interested in civil rights law and affirmative action.

The Texas case, Fisher v. University of Texas, is at this point the better known of the two.  The case is a challenge to an affirmative action plan in which race is taken into account as a factor for admission to the University of Texas. Most of the undergraduate places in the entering class are filled through a plan which guarantees a spot to any student who graduates in the top ten percent of a Texas high school. But the remaining slots – about nineteen percent of the total spaces – are filled by a second program that considers race among other factors to promote diversity in the make-up of smaller classes and academic departments.

Abigail Fisher, who is Caucasian, applied for admission to the university.  But she was not in the top ten percent of her class, and she did not receive one of the remaining slots.  She then challenged her denial of admission, arguing that she was a victim of discrimination based on her race in violation of the Fourteenth Amendment’s Equal Protection Clause. Both the federal district court and U.S. Court of Appeals for the Fifth Circuit upheld the Texas plan.

In the Supreme Court, Fisher’s lawyer disclaimed any interest in having the Justices reverse their 2003 decision, Grutter v. Bollinger, upholding the limited use of affirmative action at the University of Michigan Law School. Instead, he asked the Court to strike down the university’s use of race to fill the remaining slots and to clarify that it goes beyond the very narrow circumstances in which race may be taken into account.

Ordinarily, if another affirmative action case came along while the Texas appeal was awaiting decision, the Justices would hold the second case until they decide the first. Then the Court would either grant the second case, vacate the ruling, and send it back to the lower court to apply the newly announced rule or, perhaps, grant the second case if there are additional issues to be addressed.

But the Court did neither of those things with Schuette v. Coalition to Defend Affirmative Action, involving affirmative action in Michigan.  Instead, it granted the petition for certiorari on March 25 without waiting to decide Fisher first.

The reason is that Schuette presents affirmative action issues in an entirely different context. The case involves a challenge to Proposal 2, an amendment to the Michigan Constitution, approved by voters in 2006, that banned affirmative action in the state. The statewide ban was challenged by a coalition of groups and individuals who support the continued use of affirmative action in Michigan. Other lawsuits were filed as well, but a federal district court largely upheld the ban enacted by the voters.

The appeal roiled the U.S. Court of Appeals for the Sixth Circuit, where a three-judge panel initially struck down the affirmative action ban by a two-to-one vote. Then the full Sixth Circuit agreed that Proposal 2 was unconstitutional, ruling eight to seven in an en banc decision that the voters had violated the Equal Protection Clause. The ruling by the full appeals court produced five separate dissenting opinions. The Supreme Court agreed to hear the appeal, and argument in the case will be held next fall.

The two cases are, in a sense, mirror images of one another. The Texas case asks whether the use of affirmative action violates the Equal Protection Clause. The Michigan case, by contrast, asks whether the ban on affirmative action violates the Equal Protection Clause.

The Sixth Circuit ruled in the Michigan case that because race-based affirmative action is still permitted by the Constitution, a decision by the voters of the state to prohibit this remedy distorts the political process and imposes a burden based on race that violates the Equal Protection Clause. The ruling turns not on the Court’s long line of affirmative action cases but rather on a shorter set of precedents holding that individuals may not have their ability to participate in and influence the political process made more difficult because of their race. The Sixth Circuit found that amending the state constitution made it unconstitutionally difficult to advocate for the lawful remedy of affirmative action.

That the Texas and Michigan cases are different is underscored in the legal arguments. The Sixth Circuit opinion does not cite the Fisher case at all. And the only reference to Fisher in the Supreme Court appeal of the Michigan case is in a footnote in the petition by Michigan Attorney General Bill Schuette which says, “This case presents the different issue whether a state has the right to accept this Court’s invitation in Grutter to bring an end to all race-based preferences.” The invitation is a reference to the suggestion by former Justice Sandra Day O’Connor in Grutter that affirmative action should have an end point, perhaps twenty-five years after the 2003 Grutter decision.

Yet saying that the two cases are different and do not rely on one another is a strangely unsatisfying answer. If the Supreme Court were to virtually abolish affirmative action in Fisher, for example, that might seem to obviate the need for a ruling in the Michigan case.

At the same time, it also seems odd to think that the Court may not say anything in the Texas case that will have an impact on the Michigan case. Of course, the fact that the Court granted the Michigan case does not preclude the Justices from saying something in the Texas decision that is relevant to the Michigan appeal.

What lies ahead in this volatile field is uncertain, then. When the Court granted the Michigan petition in March, there was speculation that the Texas ruling must be imminent or that the Court would dismiss the Texas case for procedural reasons – specifically, that Abigail Fisher has now graduated from another university, although she still seeks damages.

One thing the two cases share in common is that Justice Elena Kagan is not participating in either one, leaving an eight-Justice Court to wrestle with the important issues. With only eight participants and a Court closely divided over issues of race, there are myriad possibilities for how these cases might come out. Stay tuned this spring for the Texas ruling, and probably a year from now for Michigan.

 

 

In association with Bloomberg Law

We have changed our round-up format!  In an effort to simplify the process for our round-up team, going forward we will only include in the round-up news articles and posts that are submitted to us.  If you have (or know of) an article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

With the culmination of this Term’s scheduled oral arguments, reporters and commentators have turned their attention to the Court’s recently released opinions along with those that have yet to be handed down.

Coverage of Monday’s decision in McBurney v. Young (which Sarah covered in yesterday’s round-up and Lyle recapped on Monday for this blog) continued to draw coverage yesterday.  The unanimous decision held that Virginia’s Freedom of Information Act, granting Virginia residents access to all public records but withholding such rights from non-Virginians, does not violate the Privileges and Immunities Clause or the dormant Commerce Clause.  Robert Barnes of The Washington Post, David Savage of the Los Angeles Times, Richard Wolf of USA Today, Laura Kebede of the Richmond Times-Dispatch, and Julia Zebley at JURIST also have coverage.

Other coverage focused on Boyer v. Louisiana, in which the Court was considering a speedy trial challenge but which it ultimately dismissed as improvidently granted (“DIG”).  At this blog, Rory Little analyzes the Court’s order and the opinions that accompanied it, while at Election Law Blog Rick Hasen discusses the likelihood that such an outcome might be likely in Hollingsworth v. Perry, the challenge to California’s ban on same-sex marriage.

Coverage of other orders from Monday’ s order list continued to make headlines, including the Court’s cert. denial in Alabama v. United States, a case involving the “anti-harboring” provision in Alabama’s 2011 immigration law, making it a crime to help undocumented immigrants enter or live in the state.  Warren Richey of the Christian Science Monitor, David Savage of the Los Angeles Times, and Julia Zebley of JURIST all have coverage, while Lawrence Downes of The New York Times criticizes the Alabama law as “cruel and ludicrous, and as the courts have noted more than once, unconstitutional.”

Briefly:

• At the blog Constitution Daily, Lyle Denniston looks at the possibility that the Court might repudiate one of its most controversial decisions: the World War II detainment of Japanese-Americans in internment camps.
• At the Criminal Justice Section of the ABA, Rory Little summarizes this Term’s criminal cases.
• At JURIST, John Rothchild examines the possible impact of the Court’s recent decision in Kirtsaeng v. John Wiley & Sons, Inc. in which the Court held that the “first sale” doctrine, allowing the owner of a copyrighted work to sell or otherwise dispose of that copy as he wishes, applies to copies of a copyrighted work lawfully made abroad.
• At Talking Points Memo, Sahil Kapur discusses retired Justice Sandra Day O’Connor’s recently expressed doubts on whether the Court should have granted review in Bush v. Gore (which Sarah also covered in yesterday’s round-up).  [Disclosure:  The law firm of Thomas C. Goldstein, P.C., now known as Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to respondent Al Gore in that case.]
• At the blog Federal Regulations Advisor, Leland E. Beck notes that the Solicitor General “has filed the expected petition for certiorari” seeking review of the D.C. Circuit’s decision in National Labor Relations Board v. Noel Canning.  (Lyle covered that filing for this blog.)

In association with Bloomberg Law

John Elwood reviews Monday’s relisted cases.

Last week’s relists fared only slightly better than the Beltway’s home-town heros in early-season play, with only four of seven familiar faces returning to the on-deck circle this week:  the Ninth Circuit state-on-top habeas case Nevada v. Jackson, 12-694 (fourth relist since the record arrived); the Seventh Circuit Establishment Clause case Elmbrook School District v. Doe, 12-755 (fifth relist); and the two follow-on cases to Genesis HealthCare Corp. v. Symczyk:  Convergent Outsourcing, Inc. v. Zinni, 12-744, and Cerdant, Inc. v. DHL Express (USA), Inc., 12-747 (second relist for both).

The Court denied cert. after a single relist in Alabama v. United States, 12-884, involving state authority in the field of immigration, without comment beyond a one-line notation that “Justice Scalia dissents.”  Showing that there’s nothing like a confident prediction about a forthcoming opinion in a serial relist to precipitate prompt denial, the Court denied cert. without comment in the Ninth Circuit state-on-top habeas case Chappell v. Phillips, 12-544 and its prisoner-on-top counterpart Phillips v. Chappell, 12-5890, despite having called for the record back in February and having relisted four times since the record arrived.  Perhaps a study of the record changed the mind of whoever was thinking about writing.

This week’s order list coughed up only one new offering:  Valenzuela v. Cliett, 12-773, another state-on-top habeas case from the Ninth Circuit.  California presents a (rather candidly formulated) question:  whether, when a custodial suspect “literally states that he chooses to remain silent” after having been read Miranda rights, a state court may consider objective evidence suggesting he did not, in fact, intend to invoke his rights, and officers may ask the suspect to “confirm his intent.”  The case arises from the following exchange between a police detective and the world’s least-decisive criminal suspect, which would be deemed implausible if it appeared in pulp fiction:  Suspect:  “Ahhh, you gonna let me stop talking when I want to stop talking, right? Ahhh [eleven seconds of silence].  Uhhh [three seconds of silence].  I choose to remain silent.” Detective:  “O.K., you don’t want to talk to us?  You don’t want to talk to me?” Suspect (wait for it . . .): “I’ll talk.”

The Court has likely now released any petitions it was holding for Boyer v. Louisiana, 11-9953, scheduling them for the May 9 Conference.  The Court dismissed the writ in Boyer as improvidently granted; in a concurrence, Justice Alito explained that the factual premise of the question presented – whether a state’s failure to fund counsel for an indigent defendant for five years, where the failure was the result of the prosecution’s decision to seek the death penalty, should be weighed against the prosecution for speedy trial purposes – was absent on the record of that case.  Given four dissenting votes in Boyer to decide the issue and their opinion’s stated concern about “larger, systemic problems in Louisiana,” the Court may be looking for a new vehicle.  (The one released hold of which we’re aware, Cano v. Texas, 12-5813, discussed here, seems like an unlikely Boyer substitute:  it is a non-capital case from Texas that apparently does not involve delay related to a lack of funding for counsel.)

Next week, the Justices get time off for good behavior, so you’ll have to find some other way of wasting a perfectly good tenth of a billable hour between now and May 14.

Thanks to Eric White and Jeremy Marwell for compiling and drafting this update.

Valenzuela v. Cliett12-773

Issue: Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.

(relisted after the April 26 Conference)

 

Convergent Outsourcing, Inc. v. Zinni12-744

Issue: Does an offer to provide a plaintiff with all of the relief he has requested, including more than the legal amount of damages plus costs and reasonable attorney’s fees, fail to moot the underlying claim because the defendant has not also offered to agree to the entry of a judgment against it?

(relisted after the April 19 and April 26 Conferences)

 

Cerdant, Inc. v. DHL Express (USA), Inc.12-747

Issue: Is a class representative in a putative class action faced with a Rule 68 offer of judgment in excess of its potential recovery that makes no reference to class claims required to reject said offer, proceed to trial, and bear all of the costs of continuing litigation in order to preserve its right to appellate review of a denial of class certification?

(relisted after the April 19 and April 26 Conferences)

 

Elmbrook School District v. Doe12-755

Issue: (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

(relisted after the March 22, March 29, April 12, April 19, and April 26 Conferences)

 

Nevada v. Jackson12-694

Issue: Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

(relisted after the March 15, March 22, March 29, April 12, April 19, and April 26 Conferences)

In association with Bloomberg Law

The petition of the day is:

Town of Greece v. Galloway12-696

Issue: Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

In association with Bloomberg Law

With a mass-protest hunger strike apparently still spreading among detainees at Guantanamo Bay, President Obama on Tuesday promised to make a new effort to persuade Congress to allow the closing of the prison run by the U.S. military on the island of Cuba.  In the meantime, the President said at a press conference, he has told his aides to “examine every option that we have administratively to deal with this issue.”  He did not describe any of the potential options.  (The President’s comments on Guantanamo can be read here.)

Military figures released at Guantanamo show that a hunger strike that began in early March with six detainees now involved 100 of the 166 individuals there, with twenty-one now being force-fed with tubes, and five now hospitalized.   Lawyers representing the detainees have said that some are protesting military guards’ handling of the Koran, some are objecting to a recent crackdown on cell-sharing, and most are reacting to the prospect of remaining imprisoned indefinitely without charges or a trial.  (A Miami Herald chart based on Pentagon data shows the spread of the hunger strike.)

In a ruling April 18, the supervising federal judge for detainee issues in Washington, D.C., ruled that Congress had barred the courts from reviewing any aspect of the conditions at Guantanamo., including the hunger strike.  Congress has gone further, and sharply restricted the President’s authority to release any individual now at Guantanamo, and has barred the transfer of any detainee to any point within the U.S., even for a criminal trial.  The President told reporters on Tuesday that he was “going to reengage with Congress to try to make the case that this is not something that’s in the best interest of the American people.  And it’s not sustainable.”

While a Pentagon task force has found that more than half of the remaining 166 detainees could be released without posing a risk to U.S. security, the restrictions imposed by Congress have largely barred any releases.  In addition, a series of rulings by the D.C. Circuit Court — left undisturbed when challenged in the Supreme Court — have narrowed almost to the vanishing point any chance that a detainee could win release by direct order of a federal judge.

In a statement filed in U.S. District Court by a Yemeni national at Guantanamo, Musa-ab Omar Al-Madhwani, he said that ”we are totally powerless to improve our situation….The only means that we have to express the utter hopelessness of our situation is by participating in a hunger strike.”  Al-Madhwani has recently been transferred to a more restrictive part of the prison “at the request of medical authorities,” Justice Department lawyers said in a court filing this month.

The President said at his news conference that “I don’t want these individuals to die.  Obviously, the Pentagon is trying to manage the situation as best as they can.  But I think all of us should reflect on why exactly are we doing this?…We’ve got a whole bunch of individuals who have been tried who are currently in maximum security prisons around the country.  Nothing has happened to them.  Justice has been served.  It’s been done in a way that’s consistent with our Constitution, consistent with due process, consistent with the rule of law, consistent with our traditions.”

Going back to the tense situation at the military prison, the President said “this is a lingering problem that is not going to get better.  It’s going to get worse.  It’s going to fester…Ultimately, we’re gong to need some help from Congress.”

The Supreme Court has not made a full-scale decision on legal issues at Guantanamo Bay since its 2008 decision in Boumediene v. Bush, although it has reviewed briefly and then turned aside multiple petitions by detainees seeking to contest rulings by the D.C. Circuit against their pleas for release.

In association with Bloomberg Law