The Supreme Court is accustomed to having the last word on matters of constitutional interpretation. But in the application of First Amendment free speech principles to restrictions on corporate campaign spending, the Montana Supreme Court invoked one of the lessons from first-year law school – that facts matter – to uphold state restrictions on independent corporate spending in elections.  Now, that court’s December 2011 decision appears to have set the Montana court on a collision course with the U.S. Supreme Court, which will soon decide whether (and how) it will review the ruling.

In January 2010, the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations and labor unions have a First Amendment right to engage in independent spending to influence elections. By a vote of five to four, the Justices overturned their own precedents and struck down a portion of federal election law that prohibited corporations and labor unions from spending their own funds directly to urge support for political candidates.

The Citizens United ruling has sparked a huge controversy about the role of corporate money in politics, about deference to legislative judgments, and about the role of the Supreme Court in our democratic system. This controversy and the related clash over the subsequent Montana ruling have direct bearing on courses in constitutional law, First Amendment, election law, and perhaps federal courts.

Under the federal Bipartisan Campaign Reform Act of 2002 (better known as McCain-Feingold after its chief sponsors, Senators John McCain of Arizona and Russ Feingold of Wisconsin), corporations and unions could make campaign expenditures through separate funds, called political action committees (PACs). Those PACs were limited in where they could get their funds and could not spend the money of the union or corporation itself. Under the 2002 law, the PACs could donate to candidates and could make independent expenditures to support candidates, but these were subject to limits, regulations, and disclosure requirements.

Citizens United dramatically altered that aspect of the campaign finance landscape. The Court ruled that corporations and unions are entitled to the protection of the First Amendment for political speech and that restrictions on the ability of corporations to speak directly, rather than through separate PACs, are unconstitutional. Finding that the restrictions must survive strict scrutiny – that is, must be narrowly tailored to achieve a compelling interest – the Court rejected the Justice Department’s argument that the law was essential to prevent corruption in the political process. Writing for the majority, Justice Anthony Kennedy explained that “[t]he fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials.”

Critics of the ruling say it has opened the floodgates to allow corporations to spend hundreds of millions of dollars to influence federal, state, and local elections, overwhelming the candidates and voters alike. They accuse the Supreme Court of abandoning a century of precedent that limited the protection of the First Amendment to individuals. They fault the Court for scrapping its own precedents and substituting its own judgment for that of Congress about whether corporate funds harm or have a corrupting influence on elections.

Defenders of Citizens United say the influence of corporate funds has not had a harmful impact on voters and is offset somewhat by the expenditure of union funds. Moreover, they contend, the Supreme Court has made the application of First Amendment principles to political campaigns more rational and consistent. And they argue that neither Congress nor the executive branch provided any hard evidence of actual corrupting influences from campaign expenditures, while on the other hand corporations have a valuable role to play in political debate and public discourse.

This controversy has produced voluminous commentary, both legal and political. It has deepened the political divide in Washington and around the nation. It has fostered renewed debate about whether the Supreme Court is too motivated by political outcomes, even rekindling the discussion of Bush v. Gore, the 2000 ruling in which the Court decided the outcome of the presidential election by halting a partial Florida ballot recount.

Enter the Montana Supreme Court. Montana law is, in some ways, where federal law was before Citizens United. Originally passed by the voters of Montana in 1912, the state law now prohibits corporations from spending money to support or oppose candidates. But under Montana law, separate PACs can be created to contribute to candidates or to make independent expenditures; these PACs may be funded only by contributions from shareholders, employees, or members of a corporation.

The law was challenged by several corporations and associations. Deeming the case governed by Citizens United, the state trial court declared the Montana law unconstitutional. But the Montana Supreme Court took a different approach and upheld the law by a vote of five to two. When the law was passed, the Montana Supreme Court reasoned, there was abundant corruption in the state, including bribery and corporate control of the power of government. In the state court’s view, this was more than enough to create a compelling justification in 1912, and today Montana remains “especially vulnerable to continued efforts of corporate control to the detriment of democracy.”

In other words, the Montana Supreme Court is saying that the facts matter. Even if the facts were not sufficiently established under federal law in Citizens United to show that corporate spending in campaigns is corrupting, facts showing undue influence have been amply demonstrated in the Montana case, which in the appeal to the U.S. Supreme Court is called American Tradition Partnership v. Bullock.

Ironically, perhaps the strongest criticism of Citizens United came from one of the dissenting Montana Justices, James Nelson. While conceding that the Montana law should be clearly found unconstitutional as a matter of precedent under Citizens United, he nonetheless strongly condemned the Citizens United ruling, concluding at one point that if the decision puts individuals and corporations on the same level, “it is truly ironic that the death penalty and hell are reserved only to natural persons.”

What happens next? The challengers to the Montana law, who are now seeking review in the U.S. Supreme Court, do not accept the distinction between the Citizens United decision and the Montana case as a valid difference. They argue that in Citizens United, the Court decided as a matter of law, not as a matter of fact, that independent corporate expenditures do not corrupt the electoral process. They characterize the Montana Supreme Court ruling as a thinly veiled attempt to get the Supreme Court to reconsider Citizens United.

Indeed, they suggest that the Montana law is so obviously unconstitutional, and the state court ruling so obviously wrong, that the Supreme Court could grant certiorari and reverse the Montana Supreme Court ruling without hearing argument or receiving full briefing. This suggestion is supported in a number of friend-of-the-court briefs filed by Senate Republican leader Mitch McConnell of Kentucky, the U.S. Chamber of Commerce, and the Citizens United organization.

The Supreme Court has already weighed in on the case in an interim but revealing way. In February, the Justices stayed the Montana ruling, thereby allowing corporations to continue spending on political campaigns in Montana as if the state law did not exist. The stay will remain in effect until the Justices decide what to do with the petition.

With the stay order, Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, wrote a brief but telling separate statement. Justice Ginsburg said two things were abundantly clear: first, the Montana Supreme Court must follow the ruling in Citizens United and did not do so; and second, the expenditure of funds in Montana and elsewhere since 2010 calls into question the Court’s assertion in Citizens United that corporate campaign spending does not bring about corruption.

The Montana Attorney General has until May 18 to file a response to the petition and to answer the suggestion of a reversal without argument. The Court likely will not decide until June (at the earliest) whether it will in fact grant the petition and reverse the Montana Supreme Court without argument, issuing a written decision and – almost certainly – dissents. Alternatively, the Justices could grant the petition and set the case for oral argument next fall.  An argument on Election Day might be nice.

In association with Bloomberg Law

Coverage of the Court yesterday was dominated by the news that, earlier this month, Justice Breyer was the victim of a break-in at his Georgetown home.  Greg Stohr of Bloomberg News reports on the story, as do Bill Mears of CNN, the New York Times, Roxanne Roberts and Amy Argetsinger of The Washington Post, James Vicini of Reuters, Fox News, and the ABA Journal.

Briefly:

• The Blog of the Legal Times reports on the Court’s annual musicale, hosted by Justice Ginsburg.
• The (UK) Independent discusses the cert. petition in Brooks v. Daman, a challenge to the use of a Taser by police on a pregnant woman.
• At Balkinization, David Gans summarizes an article by the Constitutional Accountability Center on the Roberts Court and equal protection jurisprudence.
• At the Bench Memos blog of the National Review Online, Ed Whelan has three blog posts challenging Jeffrey Toobin’s recent story for the New Yorker on Citizens United v. Federal Election Commission.

In association with Bloomberg Law

The petition of the day is:

Abdur’Rahman v. Colson

Note: Goldstein & Russell, P.C. represents the petitioner in this case.
Docket: 11-1215
Issue(s): (1) When is “cumulative error” a legally permitted basis for relief on federal habeas corpus; (2) is a prosecutor’s suppression of material exculpatory evidence excused whenever the defendant was aware of the facts contained therein, notwithstanding that the suppression prevented the defense from presenting the evidence of those facts to the jury; and (3) is defense counsel’s failure to investigate evidence that has some negative characteristics categorically immune from a claim of ineffective assistance of counsel?

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Habeas Corpus Scholars
• Amicus brief of Former Prosecutors
• Amicus brief of Former Federal Judges
• Amicus brief of National Association of Social Workers et al.
• Reply for petitioner

In association with Bloomberg Law

John Elwood reviews Monday’s relisted and held cases.

Monday was a big day.  Facebook raised the price range of its IPO to $34-38 a share, up from $28-35; in a related story, CEO Mark Zuckerberg announced that he was buying Greece, Spain and Portugal with change he found under his sofa cushions, thus resolving the Euro Zone crisis; and, in somewhat less momentous news, the Supreme Court loosed a slew of new relists.

The biggest category of newish relists involves a group of people that is not altogether pleased to be present in this jurisdiction: Guantanamo detainees challenging their detention.  The Court has shifted five detainee cases over to the May 17 Conference: Al-Bihani v. Obama, 10-1383; Almerfedi v. Obama, 11-683; Uthman v. Obama, 11-413; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700.  Readers with particularly debilitating OCD and too much time on their hands will recall that in January, the Court held Al-Bihani and Uthman, apparently waiting for the other three cases to catch up.  This relist may represent more of the same.  It’s complete speculation, of course – I hope you’d know better than to expect more of me – but perhaps the Court chucked them over to the next Conference so it could consider them alongside Latif v. Obama, 11-1027, a case that is already on for Conference on May 17.  In Latif, a D.C. Circuit majority, in a scant fifty-three pages, held that the district court had erred in granting Latif habeas relief, concluding that a presumption of regularity attends official acts (including statements in an intelligence report), and the district court should have viewed the “totality” of the evidence rather than considering it in an “atomized” way; Judge Tatel filed a similarly abbreviated forty-five-page dissent.  Benjamin Wittes believes that “Latif offers the detainee bar its best opportunity yet to get the D.C. Circuit’s post-Boumediene[] work in front of the [J]ustices,” and Lyle likewise says the case “may be their best chance.”  A common issue among detainee cases is the legal test for reviewing determinations whether a detainee was part of al Qaeda, which at least implicitly implicates Latif.  Al Kandari v. Obama, 11-1054, is also on for the May 17 Conference, and appears to involve whether the district court may rely on hearsay evidence like intelligence reports in adjudicating a habeas petition.  There are still other cases in the pipeline, too, but Latif and perhaps Al Kandari look like the likeliest explanation for the relists at the moment.

There were also two non-Gitmo relists.  Granted, I am emotionally stunted and my priorities are all wrong, but they strike me as unusually interesting and important.  Comcast Corporation v. Behrend, 11-864, which is a follow-on to Wal-Mart v. Dukes, will be relisted; it presents the question whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).  The case, which involves a class of more than two million current and former Comcast subscribers, seeks further clarity on exactly how much the district court should delve into the merits.  Wal-Mart’s statement that district courts must undertake “a rigorous analysis[] that the prerequisites of Rule 23(a) have been satisfied,” and that that analysis “[f]requently . . . will entail some overlap with the merits of the plaintiff’s underlying claim,” was one of the most significant (and to the defense bar, tantalizing) aspects of that opinion.

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments.  The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” – and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case.  (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” – the four Almendarez-Torres dissenters plus himself – “now recognizes that Almendarez-Torres was wrongly decided.”)  I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres – despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here.  As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement.  But Staunton did not receive that protection.  Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response a response.  The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.

Three of the relists from our last installment are back again this week:  First, Coleman, Superintendent v. Johnson, 11-1053, a state-on-top habeas case out of the Third Circuit in which the state basically alleges that the federal courts failed to credit evidence favorable to the prosecution and to apply the presumption of correctness required by 28 U.S.C. § 2254(e)(1).  The Court has requested the record, so clearly, it’s getting serious.  Second, Parker, Warden v. Matthews, 11-845, another state-on-top habeas case, this time out of the Sixth Circuit, in which Kentucky argues that the Sixth Circuit failed to give sufficient deference to Kentucky state courts’ interpretation of Kentucky law.  The case has been scheduled for three Conferences since the Court called for and received the record, so it seems likely that some sort of opinion – either a summary reversal or a dissent from the denial of cert. – is being drafted right now.  And third is Fairey v. Tucker, Secretary, 11-7185, yet another habeas case involving a collateral attack on the circumstances of the petitioner’s trial and the South Carolina district court’s conclusion that it lacks in personam jurisdiction over the Secretary of Florida’s Department of Corrections; the Court called for the record on April 16, but it still hasn’t arrived.  One relist did not make it back this week: the Court denied without comment in Adams v. Tyson Foods, Inc., 11-9054, involving a petitioner who claims to be a Tyson Foods whistleblower claiming a host of constitutional violations relating to his alleged presence on a terrorist watch list.

One lonely new hold: Coleman v. United States, 11-9604, which almost certainly involves our favorite hold fodder, Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721.

That’s all for this week.  The Court will be back next week with more.  See you next time.

Thanks to Conor McEvily for compiling the cases discussed in this update.

Comcast v. Behrend (relisted after the 5/10 Conference)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

Staunton v. California (relisted after the 5/10 Conference)

Docket: 11-8851

Issue(s):  Whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments

Certiorari stage documents

• Opinion below (Cal. Ct. App.)
• Petition for certiorari

Coleman, Superintendent v. Johnson (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-1053

Issue(s):  (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution should be reversed; (3) whether the court of appeals’ determinations regarding witness credibility should be reversed; (4) whether the court of appeals’ holding, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed; and (5) whether the court of appeals failed to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l).

Certiorari stage documents

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

Parker, Warden v. Matthews (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-845

Issue(s):  Whether the Sixth Circuit erred in finding that the Kentucky courts unreasonably applied clearly established federal law and granting respondent habeas relief.

Certiorari stage documents

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition

 Fairey v. Tucker, Secretary (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-7185

Issue(s):  Did the Court of Appeals err in dismissing the Petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

• Opinion below (4th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply brief

In association with Bloomberg Law

Coverage of Monday’s decision in Hall v. United States continued yesterday. Writing for this blog, Ronald Mann argued that the case, in which the Court held that tax liability incurred from the post-petition sale of a family farm is not dischargeable under Chapter 12 of the Bankruptcy Code, is “emblematic of the Court’s long-standing skepticism of the Bankruptcy Code as an important institution for mitigating the long-term costs of financial distress.”

Other coverage focuses on campaign finance, after Jeffrey Toobin’s recent story for the New Yorker on Citizens United v. Federal Election Commission. At Slate, Rick Hasen calls on Justice Souter to release the unpublished dissent he wrote before the case was held over for re-argument after his retirement in 2009.  At Mother Jones, Gavin Aronsen profiles four pending campaign finance cases and assesses their prospects for rolling back Citizens United. In another story at Slate, Rick Hasen discusses one of those cases, Van Hollen v. Federal Election Commission, in which a three-judge panel of the D.C. Circuit refused to stay a district court decision requiring tax-exempt organizations that run election-related ads to disclose their donors. Hasen explains why the Court “might well agree to stay the ruling through the November elections,” in spite of its consistent support for disclosure requirements.

Briefly:

• Greg Stohr of Bloomberg News discusses recent criticisms of Justice Scalia’s tone at oral arguments.
• Writing at PrawfsBlawg, Daniel Hemel argues that Florida v. Department of Health and Human Services, the challenge by a group of states to the Affordable Care Act, is barred by the Tax Anti-Injunction Act even if the individual mandate provisions do not count as a tax.
• At the Opinionator blog of the New York Times, Linda Greenhouse urges the Court to grant certiorari on one of the pending Guantanamo detainee cases.
• The New York Daily News reports on Justice Sotomayor’s commencement address at NYU yesterday.
• Over at NPR‘s Deceptive Cadence music blog, Anastasia Tsioulcas discusses Justice Ginsburg’s love of classical music and her invitation to pianist Leon Fleisher to play at the Court yesterday.

 

In association with Bloomberg Law

The petition of the day is:

Hepting v. AT&T Corp.

Docket: 11-1200
Issue(s): (1) In the case of a federal statutory claim, whether Congress may grant the Attorney General the power to choose which of two inconsistent statutory standards should govern the claim; (2) in the case of a state-law claim, whether Congress may grant the Attorney General the power to choose whether the state law governing the claim should be preempted by federal law; (3) in the case of a federal constitutional claim, whether Congress may grant the Attorney General the power to choose whether to exclude the claim from the jurisdiction of the federal and state courts; and (4) even if Congress may grant the Attorney General the powers described in Questions One, Two, and Three, whether Congress provided an intelligible principle limiting the Executive’s discretion in exercising those powers.

Certiorari stage documents:

• Opinion below (9th Cir.)
• Petition for certiorari

In association with Bloomberg Law

Monday’s decision in Hall v. United States is emblematic of the Court’s long-standing skepticism of the Bankruptcy Code as an important institution for mitigating the long-term costs of financial distress.  As a jurisprudential matter, the case is a classic conflict of wholly separate worlds:  the world of the IRS and the Internal Revenue Code on the one hand, and the world of financial distress and the Bankruptcy Code on the other.  Each world has its own title of the United States Code (Title 26 for tax and Title 11 for bankruptcy), and each has its own set of institutions, legal experts, and – most importantly – foundational habits of mind and practice.

The case is as simple a fact pattern as you can imagine: a family that owns a farm cannot make ends meet.  In response, they seek relief under Chapter 12 of the Bankruptcy Code (a special set of provisions for family farmers).  To resolve their outstanding debts, they proposed to sell the family farm and use the proceeds to pay their creditors.  The IRS objected, claiming a right to take much of the sales proceeds as a tax on the capital gains from the sale; as is commonly the case, even in a depressed real-estate market, a farm that has been owned for many years will sell for far more than its original price.

The family argued that the IRS claim is a general unsecured claim (paid after all priority creditors, and discharged even if unpaid), relying on a recent amendment of the Bankruptcy Code that treats certain claims “that aris[e] as a result of the sale * * * of any farm” as “an unsecured claim that is not entitled to priority.”  The IRS countered that the provision has no application here, because it applies only to sales that took place before the bankruptcy proceeding began.

The dispute turned specifically on the question whether this particular type of tax claim would have been a priority claim under Section 507 before the amendment, which is true only if the tax claim was “incurred by the [bankrupt’s] estate,” as opposed to the family in its individual capacity.  The family contended that this is obviously true, pointing to the fact that the sale happened after bankruptcy and to the acknowledged regularity that tax claims for post-petition financial activity have always had priority in individual bankruptcy proceedings.  The IRS, weaving a masterful web of tax technicalities, argued that the tax is not actually “incurred by the estate,” because in fact there happens to be no separate taxable estate in Chapter 12 proceedings; the IRS stood firmly on an obscure provision of Title 26 that, it is safe to say, has never received close scrutiny from a bankruptcy lawyer or judge.

The family also pointed, quite persuasively, to the legislative history of the provision.  This is, of course, of no moment to many of the Justices, but it is compelling in its specificity and plausibility.  All agree that the provision was drafted, proposed, and more or less forced through Congress at the instance of Senator Grassley of Iowa, who made numerous speeches during the years it took him to get the proposal adopted in which he highlighted this specific scenario: an effort to sell a farm during bankruptcy scuttled by the IRS’s insistence on the payment of capital gains taxes from the sales proceeds.

Faced with the dueling institutional perspectives, on Monday the Court wholeheartedly embraced the view of the IRS.  Writing for a five-Justice majority, Justice Sotomayor tracks the analysis of the Solicitor General’s brief directly: because there has never been a separate taxable estate in a Chapter 12 proceeding, she explains, the amendment is ineffective to accomplish its stated purpose.  Justice Breyer’s dissent predictably points to the unambiguous intention of the amendment’s drafter and decries the Court’s ready willingness to accept the government’s reading of the complex interplay of Codes.

I have no quarrel with the Court’s statutory analysis.  Indeed, the IRS’s statutory argument is compelling, at least as long as you consider it in a vacuum unimpeded by the Bankruptcy Code.  What I do find interesting, though, is the blithe lack of concern about the systemic effect of the decision.  No decision in this case could have any serious effect on the IRS’s administration or the public fisc.  The amounts at stake are, from the perspective of the IRS, less than trivial.  And if the decision produced administrative difficulty or fiscal inequity, who would doubt the ability of the IRS to obtain prompt rectification from Capitol Hill?

From the perspective of the bankrupts, however, the matter is far different.  The facts of this case underscore precisely why Senator Grassley wanted this amendment, and effectively scuttle the value of Chapter 12 for one of the most salient scenarios of farm distress: high debt burdens coupled with ownership of a farm that is worth far less than it was only a few years ago.  We can be absolutely sure that the decision of the Court produces exactly the opposite of the result intended by the amendment, as expressed by Senator Grassley; the Court is almost explicit in telling Congress that it simply didn’t express its intentions clearly enough to force the Justices to obey them.  Unfortunately for the bankruptcy system, it is most unlikely that Congress will find time to take the Justices up on that invitation any time soon.  It is not a coincidence, I think, that the bankruptcy process has done so little for individual consumers during our seemingly endless recession and that the Court has hewed, so consistently, to such a niggardly interpretation of the Bankruptcy Code.

IN PLAIN ENGLISH: At issue in Hall v. United States was whether farmers who sell their farm while in bankruptcy have to pay capital gains tax to the IRS.  The farmers argued that they could sell the farm and give the proceeds to their other creditors.  However, the Court agreed with the IRS that the IRS must be paid before the other creditors.

In association with Bloomberg Law

Coverage of Monday’s opinions and orders continued yesterday.  At JURIST, Julia Zebley summarizes Monday’s decision in Hall v. United States, in which the Court held that the federal income tax liability resulting from petitioners’ post-petition farm sale is not incurred by the estate under Section 503(b) of the Bankruptcy Code and thus is neither collectible nor dischargeable in the Chapter 12 plan.  Also at JURIST, Michael Haggerson reports on Monday’s denial of cert. in a case challenging the lack of voting rights for Puerto Ricans in U.S. presidential elections.  And at the Wall Street Journal blog Bankruptcy Beat, Jacqueline Palank reports that the Court “won’t review the conviction of Tom Petters, whose business empire once encompassed Polaroid and Sun County Airlines before his arrest on charges that he ran a massive Ponzi scheme.”

Briefly:

• At this blog, Lyle Denniston analyzes the cert. petition filed in Latif v. Obama, a Guantanamo Bay detainee case that the Justices will consider at their Conference tomorrow.
• Also at this blog, Matt Bush posts our list of “Petitions to watch” for tomorrow’s Conference.
• Following up on Adam Liptak’s Sidebar column for the New York Times (which Nabiha included in yesterday’s round-up), Debra Cassens Weiss at the ABA Journal reports on one of the petitions at next week’s Conference, challenging the use of a Taser by Seattle police on a pregnant woman.
• Duke Law News covers a recent appearance by retired Justice Stevens at Duke Law School.

In association with Bloomberg Law

Analysis

For most of the past four years, the volunteer lawyers who are helping Guantanamo Bay detainees use their constitutional right of access to U.S. courts have faced a dilemma: they assumed that, at some point, the Supreme Court would again get interested in those cases, but they had no idea what it would take to get the Justices involved again.  They persuaded the Court just once in those years to grant a case — a highly unusual one – but that case went away without any new guidance on where the Court stands.

Last Term, the lawyers failed every time as they tried repeatedly to fathom what might catch the Justices’ attention; they had what they regarded as solid issues, but no case advanced.  This Term, they are trying again — seven more times, so far.   But, among those seven, they have Latif v. Obama, and that may be their best chance.  Indeed, if that one fails, too, it is hard to imagine the Court taking any Guantanamo captive’s case.

At the Justices’ private Conference on Thursday, they are scheduled, according to the electronic docket, to have a look at all seven of the new Guantanamo cases.   That is not a coincidence.  The lawyers have been urging the Court staff to schedule the cases together, and specifically asked that some of the cases be held up for examination until the Latif case, too, was ready.  Now the filings in the seven cases are all in (including an extra brief in one of the cases pointing out just how important the Latif case is), and presumably the Justices are poised to act.   The earliest an announcement of any action is likely to come is next Monday morning.

It is important to note, though, that the Obama Administration has urged the Court to deny review in every one of the new cases; it says there is no issue in any case that is worth the Court’s time.  Given the historic fact that the Court has a good deal of trust for the government’s judgment, it would appear that the detainees’ lawyers are operating at something of a disadvantage as they try to convince the Court that it needs to provide new guidance on the law of detention.  The military prison at Guantanamo Bay has been open for more than ten years, and the law of detention is still a work in progress.

But one facet of the developing law of detention, and it has added a special urgency to the work of the Guantanamo lawyers, is that the D.C. Circuit Court has not approved a single order by a District judge clearing the way for a detainee to leave Guantanamo.  Several score have gone home, but none as a result of a Circuit Court decision.   The question that detainees’ lawyers keep trying to get the Supreme Court to answer is: did you mean it when you said that the Guantanamo prisoners should have a chance at winning actual release? That is an open question, the lawyers have argued, because the Circuit Court has not allowed that to happen in any case actually appealed to that court by the government.

The last time the Court as a whole said anything of real consequence about Guantanamo (aside from saying that government offers of release for five detainees made it unnecessary to decide the one case that had been granted) was on June 12, 2008.   That day, the Court issued a historic ruling in Boumediene v. Bush, declaring for the first time that prisoners held by the U.S. military outside of the Nation’s borders had a constitutional right to go into a U.S. court, using the ancient writ of habeas corpus, to force the government to justify holding them captive even while declining to pursue criminal terrorism charges against most of them.

Boumediene, actually, had two main parts to it: establishing the habeas right for those at Guantanamo, but explicitly giving District Court judges in Washington a wide degree of discretion to work out the details on how to process those challenges.  The District judges, applying a format worked out in November 2008 by a coordinating judge, began processing the cases, and in the majority of cases, they found that detention was not justified.  The District judges applied a strong dose of skepticism to government evidence of terrorism links, especially evidence submitted in intelligence reports, sometimes assembled under chaotic conditions overseas.

It is likely, though, that neither the Justices themselves nor the District judges in Washington (where all Guantanamo cases are filed) anticipated one development that emerged after Boumediene had been decided.  It actually came out of a second detention case decided by the Justices on that same day in June 2008 – Munaf v. Geren, about two U.S. citizens the U.S. military was holding in Iraq pending criminal trials in that country, and having nothing directly to do with Guantanamo.  But, Munaf v. Geren, as transformed by D.C. Circuit Court, would become a stern mandate to the District judges not to “second-guess” the military’s judgment about the need to detain prisoners at Guantanamo and anywhere else.

In the summer of 2010, three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said publicly that the Court should at some point sort out the impact that Munaf had had on the law of detention, and at that point, lawyers for the Guantanamo prisoners thought they had a clue of how to reopen post-Boumediene issues in the Supreme Court.  But that did not happen, and there was no explanation why it did not happen.  Munaf-related sequels were filed by the Guantanamo lawyers, but none got a hearing.

The D.C. Circuit steadily tightened the limits on the District Court judges, and in the last dozen such cases, the detainees’ challenges have lost in 11.  The only case among those 12 in which a detainee won was the case of Latif v. Obama, involving a Yemeni national, Adnan Farhan Abdul Latif, who was captured in Pakistan within three months after the terrorist attacks on the U.S. on September 11, 2011.  But Latif’s success in the District Court did not last; the D.C. Circuit overturned the judge in that case, too.

There are totally contradictory stories about Latif: his lawyers insist that he went to Afghanistan and then to Pakistan seeking medical treatment for a head injury, but the government insists that he went there along a path followed by terrorist recruits, and that, when he got there, he received military training and joined the Taliban forces and went to war against the Afghan Northern Alliance.  The Circuit Court concluded that he was “part of” the Al-Qaeda terrorist network — the current legal standard for detention.

The primary evidence the government used against Latif was an intelligence report that was based, in part, on interviews that intelligence or military agents had with him and others, overseas and perhaps also at Guantanamo Bay.

On the basis of the conflicting accounts of Latif’s travels and activities in Afghanistan and Pakistan, his case does not stand out as unusual; such factual conflicts exist in all of the cases.   But, as his case developed in the D.C. Circuit and now in the filings in the Supreme Court, here is why it has taken on a status that does not seem to be fully matched by other pending cases:

* It resulted in the creation, not previously found in any prior Guantanamo case, of a “presumption of regularity” and accuracy for government intelligence reports, no matter the conditions under which they were gathered.  It is a legal rule of thumb that makes the government’s reasons for detention significantly weightier, and puts a heavy burden on the detainee’s lawyers to disprove that evidence.   Up to that decision, the District judges had routinely refused to grant the government such a “presumption.”

* A group of intelligence officers and retired federal judges filed amicus briefs with the Supreme Court questioning the reliability of those intelligence reports and the fairness of their use.

* The case produced something that is quite rare in Guantanamo cases in the D.C. Circuit — a vigorous, even angry dissent.  It was filed by Circuit Judge David S. Tatel,  who argued that the D.C. Circuit “has moved the goal posts” and had “called the game in the government’s favor.”

* The main opinion in the D.C. Circuit brought a scathing denunciation of the Supreme Court’s Boumediene decision by Circuit Judge Janice Rogers Brown, who said that the ruling was based upon “airy suppositions” and who suggested that the signal it had sent to the government in the “war on terrorism” was to “take no prisoners.”

* It has drawn the criticism of even outside observers who have generally supported what the D.C. Circuit had been doing in developing the law of detention.

* It appears — at least so far — to be a case in which Justice Elena Kagan can take part; that is not true of all Guantanamo cases, because of her prior role in the Justice Department as U.S. Solicitor General.

* And, to repeat, it is the one case in the last dozen to go through the District Courts to result in a win for a detainee, only to have that, too, set aside in the Circuit Court.

The Latif petition raises three issues.  One has to do with the validity of the “presumption of regularity” for government intelligence reports.  One has to do with whether the D.C. Circuit wrongly took on the role assigned to the District judge to sort out the facts.  (If the Circuit Court had accepted the District judge’s factual findings, all sides agree that Latif’s detention would be invalid.  It was the first Guantanamo case to reach the Circuit Court that had that characteristic about it.)

But the third issue raised is an especially provocative question that, in fact, is also included in a number of the other new Guantanamo cases.  That question reads: “Whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.”

Implicit in that question are these other questions: Did the Court actually expect in 2008 that a Guantanamo detainee would win release over the government’s objection? What did the Court mean when it said habeas review in Guantanamo cases should be “meaningful”?  How content are the Justices with the handiwork of the D.C. Circuit in defining the law of detention since Boumediene?  Just where would the Justices start if they wanted to examine the Circuit Court’s results? Does the Court see any need to defend itself against the criticism that Circuit judges have aimed, in escalating terms, at Boumediene?

Or, perhaps finally, does the Court have any desire, on any score, to return to a role in monitoring the fate of the 169 foreign nationals who remain at Guantanamo?  What would be lost, to the Court as an institution, if it opted now just to leave Guantanamo to the political branches and the D.C. Circuit?

In association with Bloomberg Law

At its May 17, 2012 Conference, the Court will consider such issues as the presumption of accuracy of intelligence reports in Guantanamo habeas decisions, standing to challenge the Foreign Intelligence Surveillance Act, the standard of federal habeas review for state court factual determinations, and the burden of proof for affirmative defenses in a criminal case.  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.

Latif v. Obama

Docket: 11-1027
Issue(s): (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Certiorari stage documents:

• Opinion below (D.C. Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Retired Federal Judges
• Amicus brief of Former Intelligence Professionals et al.
• Reply of petitioner

Clapper v. Amnesty International USA

Docket: 11-1025
Issue(s): Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

Certiorari stage documents:

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of William Barr et al.
• Reply of petitioners

Howes v. Walker

Docket: 11-1011
Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner (forthcoming)

Kerestes v. Pabon

Docket: 11-958
Issue(s): (1) Whether limited knowledge of English qualifies as an "extraordinary circumstance" justifying equitable tolling of the habeas corpus filing deadline; and (2) whether, in evaluating requests for certificates of appealability under the habeas corpus statute, federal courts of appeals may disregard the deference requirement and instead apply a de novo standard?

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner

Cases involving lawyers from Goldstein & Russell (listed without regard to the likelihood of being granted):

Pickering v. Colorado

Note: Goldstein & Russell, P.C. serves as counsel to the petitioner this case.
Docket: 11-870
Issue(s): When the accused in a criminal case properly raises a defense that negates an element of the charged crime, does the Due Process Clause require the prosecution to disprove that defense?

Certiorari stage documents:

• Opinion below (Colo. S. Ct.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of National Association of Criminal Defense Lawyers
• Amicus brief of Criminal Law Professors
• Reply of petitioner

________________________________________________________________

The following petitions have been re-listed for the conference of May 17.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Coleman v. Johnson

Docket: 11-1053
Issue(s): (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed given that it conflicts with this Court’s holdings that it is not the province of a federal habeas court to examine state court application of state law and that only noncompliance with clearly-established federal law will render a state’s criminal judgment susceptible to collateral attack in federal court; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution in connection with its Jackson v. Virginia analysis due to its subjective view that those inferences do not “more likely than not flow from” the trial evidence should be reversed given that it conflicts with this Court's holdings that a federal habeas court conducting a Jackson review must view the evidence in the light most favorable to the prosecution, presume that the jury resolved any conflicting factual inferences in favor of the prosecution, and defer to that resolution; (3) whether the court of appeals’ determination, which patently relies upon its own subjective conclusions regarding witness credibility and the proper weight to be accorded the record evidence, should be reversed given that it contravenes this Court’s repeated admonitions that a federal habeas court conducting a Jackson review is strictly forbidden from substituting its judgment for that of the jury on weight and credibility issues; (4) whether the court of appeals’ determination, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed given this Court’s holdings that a federal habeas court engaged in a Jackson analysis must apply the substantive elements of the criminal offense as defined by state law; and (5) whether the court of appeals’ de facto finding that the state courts’ conviction was based on an unreasonable determination of the facts in light of the evidence presented should be reversed given that it fails to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l) and therefore conflicts with this Court’s holdings that the presumption of correctness afforded state court factual findings cannot be overridden absent clear and convincing contrary evidence.

Certiorari stage documents:

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

Comcast v. Behrend

Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

In association with Bloomberg Law

Yesterday the Court issued an opinion in Hall v. United States, holding that the federal income tax liability resulting from petitioners’ post-petition farm sale is not incurred by the estate under Section 503(b) of the Bankruptcy Code and thus is neither collectible nor dischargeable in the Chapter 12 plan. Robyn Hagan Cain of Findlaw describes the opinion as “unusual,” explaining that she “didn’t expect to see Justice Sotomayor aligned with Chief Justice Roberts and Justices Scalia, Thomas, and Alito in a tax decision ruling against struggling farmers,” while Calvin Massey of the Faculty Lounge wonders whether Justice Sotomayor “is a convert to the Justice Scalia approach to statutory interpretation, or whether this is just an aberration that is peculiar to bankruptcy.” The Associated Press also has coverage of the case, as does Mark Giangrande at the Law Librarian Blog.

Monday’s order list did not contain any new grants, nor did the Court call for the views of the Solicitor General in any new cases. With no new grants, coverage focused on the cases in which the Court denied review, including cases involving the trademark rights to Cuban rum (Greg Stohr of Bloomberg, as well as Greg Stohr and Clementine Fletcher for the Miami Herald), shipwrecked treasure (Warren Richey of the Christian Science Monitor), Congressional representation of Puerto Rico (the Associated Press), a victim of Whitey Bulger (Boston Globe), and a guilty plea from a sailor suffering from post-traumatic stress disorder (David Nelson of the New York Times). At the New York Times, Adam Liptak looks ahead to the May 24 Conference and a petition challenging the use of a Taser on a pregnant woman.

At the New Yorker, Jeffrey Toobin discusses the impact of Chief Justice John Roberts on the Court’s decision in Citizens United v. FEC.  Several writers praise the behind-the-scenes details in the story: John Hudson of the Atlantic Wire focuses on the news that now-retired Justice David Souter drafted a dissent, “which remains unpublished, [that] accused Roberts of engineering the outcome of” the case; at his Election Law Blog, Rick Hasen similarly describes the unpublished Souter dissent as the “big news” of Toobin’s story.  Meanwhile, at Salon, Joan Walsh argues that “the most important revelation” from Toobin’s story is “the extent to which modern conservatism is trying to restore the Gilded Age.” Joe Palazzolo of the Wall Street Journal Law Blog also has coverage of the story.  Finally, at this blog, Tom Goldstein calls the article a “must-read,” but at the same time argues that although it “is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.”

Briefly:

• The University of California-Irvine will host its second annual Term in Review program on July 17.

In association with Bloomberg Law

Out today from The New Yorker is a must-read excerpt from Jeff Toobin’s forthcoming (in September) book The Oath:  The Obama White House vs. The Supreme Court.  The excerpt recounts insider details about the process by which the Court decided the Citizens United campaign finance case.

The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history.  I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era.  I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.

By way of brief background for readers who have forgotten it, in Citizens United the Court originally agreed to decide whether a particular “movie” critical of Hillary Clinton was subject to campaign finance regulation.  But the Court subsequently ordered reargument on the question whether the relevant restriction on corporate expenditures in elections violated the First Amendment.  By a vote of five to four, it then invalidated the statute, holding that corporations and unions have a First Amendment right to engage in independent campaign expenditures.

Toobin reports the following behind-the-scenes details as they relate to the Chief Justice:

After the first argument on the statutory question, “Roberts assigned the opinion to himself,” and “did write an opinion roughly along [the] lines” of holding that the movie was not covered by the statute.

By contrast, Justice “Kennedy wrote a concurrence which said the Court should have gone much further” to rule for Citizens United on broad constitutional grounds.

“But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case,” leading Roberts to “withdr[a]w his opinion and let Kennedy write for the majority.”

After strident protests from the more liberal Justices that the Court was deciding a major constitutional question without briefing or argument, Roberts “agree[d] to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument” on the constitutional issue.

After the second argument, “Roberts assigned the opinion in Citizens United to Anthony Kennedy.”

From those facts, Toobin reasons that, “[e]ven without writing the opinion, Roberts, more than anyone, shaped what the Court did.”  Reargument, he says, was “a strategically ingenious maneuver”; giving Kennedy the opinion after reargument “was another brilliant strategic move.”  Because corporations favor Republican candidates, Toobin concludes:  “So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party.  Roberts’s choice was: a lot.”

That does not seem to follow.  Take the results of the first argument.  The Court’s five conservatives agreed that Citizens United should prevail, but divided on whether to resolve the case on narrow statutory or broad constitutional grounds.  The Chief Justice both voted for the former and assigned the opinion to himself to try and control the reasoning.  That is the opposite of the narrative in which he is attempting to produce the broader result.

But the Chief Justice lost his majority to Kennedy’s broader constitutional opinion.  That happens.  While Toobin calls the draft Kennedy opinion a “majority,” he does not report that the entire majority switched to Kennedy’s opinion.  It appears that Kennedy may have had only a plurality.  The conservatives have repeatedly divided on how quickly to move the law to the right, and the Chief Justice has been one to favor moving more slowly – recall Justice Scalia’s biting criticism of “faux judicial modesty.”

In response to Justice Souter’s criticism that the Court should not be deciding the constitutional question without briefing and argument, the Court set the case for reargument.  While Toobin describes Roberts as having made that decision alone, I don’t believe that is possible:  the Chief Justice does not have that power.  But in any event, even if he did, that decision does not seem like an effort to decide Citizens United as broadly as possible as quickly as possible.

After the reargument, the Chief Justice assigned the majority to Kennedy.  That was not much of a tactical move – given the case’s history, it was the only realistic possibility.  The conservatives had voted to decide the case on the broader constitutional ground.  Kennedy had already written an opinion deciding the case on that basis that had the support of several members of the majority.  It would have been fairly insulting for Roberts to take the assignment away.

The post-Citizens United history also seems to undermine Toobin’s take.  Soon after Citizens United, in a suit by the RNC, a three-judge district court held that Citizens United did not undermine the Supreme Court’s ruling in McConnell that Congress may restrict contributions to political parties.  The court said that only Congress or the Supreme Court could revisit that question.  When appealed to the Supreme Court, six Justices summarily affirmed, refusing to revisit that aspect of the Court’s campaign finance jurisprudence.  The Chief Justice was in the majority, with Justice Alito and the Citizens United dissenters; Justices Scalia, Kennedy, and Thomas would have heard argument.  If the Chief Justice were actually leading the charge for revisiting campaign finance law, he presumably would not have voted to affirm.

It does seem fair to me to criticize the Chief Justice for voting to decide Citizens United on constitutional grounds.  But that is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him.  It also ignores that the alternative may have been no clear holding whatsoever – with dueling members of the majority articulating inconsistent rationales that left the law in flux.

It is also a criticism that is deeply rooted in a belief that the Citizens United ruling is wrong on the merits, as opposed to an objective view that the Court should never issue broad constitutional rulings when it can avoid them.  If you instead agree with the ruling, that criticism seems fairly empty.  The majority’s view is that the statute imposed a significant restriction on a basic First Amendment right:  participating in elections.  More broadly, the majority believes that the Court’s prior precedents in this important area are fundamentally flawed.  It is not surprising that they want to correct those perceived errors — on what everyone agrees is a critical question — as quickly as possible.

Imagine if the shoes are reversed in 2018.  Justice Kennedy retires and is replaced by Kamala Harris.  The Court hears a case that it could decide on narrow grounds, or it could go further and overrule Citizens United.  Will progressives really contend that the new and  more liberal majority should leave that decision standing?  I don’t think so.  They will want the Court to get the decision “right.”  And if the senior Justice in the majority votes that way and assigns the opinion accordingly, I don’t think it will be because she is trying to help the Democratic Party as much as possible.

Others may disagree.  And in all events, as I mentioned, you must read the article and buy the book.  The article is a fascinating read, and it promises much more to come.

In association with Bloomberg Law

This morning the Court issued orders from the May 10 Conference as well as one opinion. The Court did not grant any new cases, nor did it call for the views of the Solicitor General in any additional cases.

Justice Sotomayor wrote the opinion for the Court in Hall v. United States. By a vote of five to four, the Court affirmed the decision of the Ninth Circuit.  It held that the federal income tax liability resulting from petitioners’ post-petition farm sale is not “incurred by the estate” under Section 503(b) of the Bankruptcy Code and thus is neither collectible nor dischargeable in the Chapter 12 plan. Justice Breyer filed a dissenting opinion in which Justices Kennedy, Ginsburg, and Kagan joined.

In association with Bloomberg Law

With the help of our reporter, Lyle Denniston, we will be live blogging as orders and opinions are issued today. The Live Blog window is below the jump. Once you see the window and our initial welcome, we ask that you do not refresh your browser. Updates will appear without the need for refreshing.

 Live blog of orders and opinions

In association with Bloomberg Law

In the wake of President Obama’s endorsement of same-sex marriage, the weekend’s coverage focused on the prospect that the issue could reach the Court this year. David Ingram of Reuters reports on two same-sex marriage cases: the constitutional challenge to California’s Proposition 8 and a Massachusetts case seeking to overturn the federal Defense of Marriage Act (DOMA), while Jess Bravin of the Wall Street Journal discusses the potential political pressures that President Obama would face when the issue reaches the Court. 

Briefly:

• In an op-ed for the Boston Review, Pam Karlan criticizes “a second form of assertiveness” displayed by the Roberts Court:  “the Court is not simply deciding which cases to hear, but is also directing the parties to address issues the justices want to take up.”
• At UPI, Michael Kirkland discusses the impact of the Court’s ruling in Citizens United v. FEC, reporting that “[t]he 2012 elections are awash in secret money, with donors accountable to no one, while the national media sleeps and few voters seem to care.”
• In the Los Angeles Times, David Savage reviews criticism of Solicitor General Donald Verrilli’s performance at oral arguments this Term.
• In an op-ed for the New York Times, Richard Thaler argues that “[g]iven how flimsy slippery-slope arguments can be, it is downright scary that they might play an important role in the Supreme Court decision on the new health care law.”
• In an op-ed for the Daily Progress, Donald Nuechterlein urges the Court to uphold the main provisions of S.B. 1070, the state immigration law at issue in Arizona v. United States, but to reject its “more punitive features,” in the hope that “[t]his outcome might then spur Congress, in its next session, to be serious about compromising around a more comprehensive solution to this vexing immigration dilemma.”

 

In association with Bloomberg Law

On Monday the Court announced one opinion. The Court did not grant any new cases, nor did it call for the views of the Solicitor General in any additional cases.

On Thursday the Court will meet for its May 17 Conference. Our list of “Petitions to watch”  for that Conference is here.

In association with Bloomberg Law