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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We have just two opinions today:

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

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

The full order list is here.

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

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

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

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

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

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

Title: Carmichael v. Kellogg, Brown & Root Service, Inc.
Docket: 09-683

• Brief in opposition

Note: the petition in this case will be posted here as soon as we obtain it.

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

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

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

No. 08-728, Bloate v. United States

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

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

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

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

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

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

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

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

Briefly:

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

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

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

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

Briefly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court is expected to release orders this morning at 10 a.m. and will then go into recess until Friday, March 19, when the Justices will hold their next private conference.

The respondents’ merits brief is due today in Christian Legal Society v. Martinez (09-1371) and the petitioners’ reply is due Friday in Kawasaki Kisen Kaisha v. Regal-Beloit Corporation (08-1553; 08-1554).

Following a busy week at the Court, we have updated our sister site, SCOTUSwiki, to include materials relating to the cases which were argued or decided, or in which briefs were filed, in the past several days.

To the case page for McDonald v. Chicago, which was argued on Tuesday, we have added Lyle’s recap and the argument transcript.  We have also updated the case page for Samantar v. Yousuf to include Lyle’s recap and a transcript, and the case page for Hui v. Castaneda now includes a transcript as well as commentary from Luke Appling of Harvard Law School.  We have also added to the Wiki a recap of Berghuis v. Thompkins, by Harvard Law School’s Ray Seilie, and a recap of Holland v. Florida by Kate Wevers, also of Harvard Law School.  To the case page for Johnson v. United States, we have added an opinion recap written by former Akin summer associate Natasha Fedder, of the University of Pennsylvania, and the case page for Kiyemba v. Obama, which was vacated and remanded without argument last week, now includes additional commentary written by Lyle.

In addition, we have updated a number of case pages to include merits-stage briefs which were filed this week.  Petitioners’ briefs have been added to the pages for Hardt v. Reliance Standard Life Insurance and Monsanto Co. v. Geerston Seed Farms, and we have added newly filed respondents’ briefs to the pages for Robertson v. United States ex rel. Watson, Monsanto, and Carachuri-Rosendo v. Holder.  In addition, we have added a reply brief to New Process Steel v. NLRB, and new amicus briefs to Morrison v. National Australia Bank, New Process Steel, Dolan v. United States, Hardt, Rent-a-Center West v. Jackson, Doe v. Reed, and Dillon v. United States.

As always, we have continued updating case pages to reflect ongoing media and blogosphere coverage. In particular, McDonald v. Chicago received a great deal of attention in the media this week, and the coverage of, as well as commentary on, that case has been added to the Wiki.

Americans oppose the Court’s recent decision in Citizens United by a margin of nearly two to one (sixty-four to twenty-seven percent), according to a poll conducted by Greenberg Quinlan Rosner Research and McKinnon Media on behalf of Common Cause, Change Congress, and the Public Campaign Action Fund.  Another poll, by ABC News and the Washington Post, recently found that eighty percent of Americans oppose the Citizens ruling, with sixty-five percent “strongly” opposing it.  Both polls also found that a broad majority of voters favor some type of congressional response to the decision.  These findings have been widely reported, with some proponents of reform relying on them to call for a congressional response to the Citizens decision.

However, in my opinion, both surveys used imprecise language to make defective claims.  That the surveys may have misinformed their respondents is a cause for concern, because forty-three percent of respondents in the Greenberg Quinlan survey answered that they knew “not very much” or “nothing” about the case, indicating that the survey itself was their primary source of information about the decision.  In this post, I examine the accuracy of the surveys’ descriptions of the decision in Citizens.  I leave it to those with statistical training to examine the survey’s methodology and decide what effect, if any, the wording of the questions may have had on the conclusions.

Conversational Expectations

Philosopher of language Paul Grice once proposed various principles to help explain how successful communication is possible.  In so doing, Grice described the assumptions that exist between listeners and speakers in a conversation, and as has been demonstrated, Grice’s maxims are useful for analyzing whether a survey’s language follows our assumptions about conversation.  By following these rules, surveys can avoid misleading or imprecise claims.

Essentially, the maxims dictate that in conversation we should be honest, clear, and provide relevant information, so that a listener can assume that she is sufficiently aware of the facts to form an opinion.  Grice’s maxims instruct a speaker to communicate as clearly as possible and to avoid ambiguous or obscure words.  In the context of a survey, this means that the survey administrator should choose the clearest and most relevant phraseology possible; indeed, as multiple studies have demonstrated, survey respondents assume that administrators have done so.  And, according to Grice, a speaker must provide all of the information necessary for the conversation; thus, a survey respondent would assume that she was provided with the complete body of information necessary to form an opinion.

But even when survey administrators follow these maxims, seemingly straightforward words can be misunderstood.  For example, one survey asked respondents “how many times do you usually switch from one station to the other, when viewing TV on a weekday evening?” Eighty-seven percent of respondents indicated in a follow-up interview that they understood the word “you” to refer to themselves, but thirteen percent understood the word to indicate another meaning:  two percent interpreted “you” as “you and your spouse,” while two-and-a-half percent interpreted it as “you and your family.” This effect of multiple understandings is most pronounced for words with multiple meanings.  And if ostensibly everyday words can be misunderstood, then it is crucial that descriptions of technical, complicated issues like campaign finance law be clear and unambiguous to avoid confusion or misinterpretation on the part of survey respondents.

Survey Language

The Greenberg Quinlan poll poses two questions about the Citizens case:

Q. 30 Recently, the Supreme Court ruled on a case brought by the group Citizens United that changed campaign finance laws and will allow corporations, unions and other groups to spend money to directly support or oppose specific candidates. How much have you heard or seen about the Supreme Court’s decision in this case — a great deal, some but not a lot, not very much, or nothing at all?

Q.31 Now let me read you a short description of this case. Before the decision, the law barred corporations and unions from spending money to support or oppose candidates. The Supreme Court overturned this previous law and ruled that corporations and unions have the right to spend money to support or oppose specific candidates. Now, after learning a little bit more about this, do you favor or oppose this decision?

The ABC/Washington Post survey poses this question about the Citizens case:

35. Changing topics, do you support or oppose the recent ruling by the Supreme Court that says corporations and unions can spend as much money as they want to help political candidates win elections? Do you feel that way strongly or somewhat?

A respondent might infer different meanings about what it means to “spend money to support a candidate.”  “Spend[ing]” could refer either to direct contributions to candidates or to independent election expenditures (for example, buying advertisements in support of a candidate).  Similarly, a respondent could interpret the first poll’s references to “laws” and “the law” to mean state law, federal laws, or both .

Thus, the first possible reading of the survey questions is that the Court in Citizens United overturned laws prohibiting corporations and unions from supporting or opposing a candidate through direct financial contributions.  Yet even before Citizens was decided, corporations were permitted to – and, as the Center for Political Accountability has documented, did – donate directly to candidates in twenty-eight states.  (Information on laws in these states and the twenty-two states that prohibit such donations is available here).

The second possible reading of the survey questions is that Citizens United overturned a law prohibiting corporations and unions from either “support[ing] or oppos[ing]” a candidate (Greenberg poll) or “help[ing] political candidates win elections” (ABC poll) by making independent election-related expenditures.  But as a supplemental amicus brief filed by the Chamber of Commerce points out (at 8 n.5), twenty-six states and the District of Columbia already permitted corporations to make independent political expenditures during campaigns, including the purchase of television and radio advertisements that directly encouraged a vote for a specific candidate.

Conclusion

The phrase “the law” and the word “spend,” as used in these surveys, do not mean what these words mean in conversational English.  To “spend,” in a conversational sense, seems to mean “to use or expend money.”  So “spending” on a campaign or election seems to refer either to making a direct donation to a candidate or to providing indirect financial support, such as by purchasing ads on a candidate’s behalf.  Many states permitted unions and corporations to “spend” in both these senses before Citizens was decided; that the surveys claim or imply otherwise is inaccurate and misleading.

Further, neither of the surveys mentions important distinctions between federal laws, which previously banned corporate contributions, and state laws, which in many cases have permitted it for years.  And in all three of the questions, the broad language seems to affirmatively mislead respondents.  Although respondents would assume that the survey used accurate, clear language and provided all of the information needed to form an opinion, the survey did neither.

Although the language of these polls is flawed, it is possible to design an improved poll.  Future Citizens United polls ought to distinguish between state and federal laws and eschew mistaken categorical claims.  Knowing that respondents will apply conversational definitions to words, the polls’ creators should use precise language, clarify what types of corporate and union spending are permitted, and accurately contrast the new scope of campaign laws with previous laws.

Lecturing at Georgetown University on Tuesday, former White House counsel Gregory Craig offered insider insights on President Obama’s selection of federal judges—especially Supreme Court Justices.  Last year, Craig led the search for Justice Souter’s replacement that culminated in the nomination of now-Justice Sotomayor.  The occasion for the lecture was the Bernstein Symposium on Governmental Reform.

From the outset, Craig cautioned the audience against reading too much into his statements: “A lot has happened since I was White House counsel.  And a lot has not happened,” he added, alluding to the possible retirement of another Justice soon.

The White House had advance warning about Justice Souter’s retirement:  according to Craig, by early spring 2009, they knew from a reliable source that Souter would retire.  That knowledge provided the president’s team with the luxury of identifying and vetting potential nominees before the press got involved.  At the same time, they were eager to go public because they wanted a new Justice at 1 First Street NE by August to give him or her time to adjust before the first day of the Court’s new Term.  When the story leaked in late April to two Washington journalists, Craig called Souter to ask how he wanted to handle the situation; Souter chose to send his resignation letter to Obama immediately, on May 1, and Obama made the announcement later that day.

Never opening closed doors too far, Craig delved into the selection of the short list of potential nominees to replace Souter only during the question-and-answer period afterward.  Asked whether the team tasked with creating the short list considered ethnic and gender diversity as factors, Craig responded that diversity “simply wasn’t part of the discussion,” because the president had already taken diversity into account in his earliest suggestions.  And he will take diversity into account again, Craig believes, in the event of any new vacancy.

The heart of Craig’s lecture was his description of eight “lessons” the White House learned in nominating a Supreme Court candidate (these could alternatively be described as “guiding principles,” for the White House used them all).

Lesson No. 1: The nominee’s qualifications and character must be outstanding, lest any weakness become a talking point for the opposition.

Lesson No. 2: The nominee should have a compelling personal narrative.  Sotomayor fit this bill, raised in a South Bronx housing project by a hardworking, Puerto Rican single mother and going on to graduate from Princeton University and Yale Law School.

Lesson No. 3: The American public’s view of the nominee will likely be “defined” within forty-eight hours of the nomination because that first impression can be difficult to shake.  Sotomayor’s appearance with her mother in the White House when Obama announced her nomination was not an afterthought in shaping her public image.  This lesson, Craig acknowledged, is old and common knowledge on both sides of the aisle: within an hour of Ronald Reagan’s nomination of Robert Bork to the Court, Senator Edward Kennedy attacked the nominee in a long speech on the Senate floor that controlled the dialogue throughout the Senate proceedings.

Lesson No. 4: The nominee needs a Senate champion.  This lesson, too, was learned long before Obama’s presidency.  After naming Chuck Schumer as Sotomayor’s “guardian,” Craig rattled off a major Senate backer for every successful Supreme Court nominee in recent history, including Senator Warren Rudman for Justice Souter and Senator Alfonse D’Amato for Justice Scalia.

Lesson No. 5: Identify the issues that need to be addressed in advance.  If the candidate does have weaknesses, the opposition researchers will find them.  Part of this is reining in single-issue groups, who will intervene if they believe that the nominee has taken a firm stance on their issues.  Craig noted that the National Rifle Association was a master of this strategy in Sotomayor’s confirmation, portraying a vote in her favor as anti-guns, a vote against as pro-guns.

Lesson No. 6: A single head of strategy should unite “the legal people, the political people, and the outreach people” in any nomination.

Lesson No. 7: Courtesy calls by the nominee to Senate offices are vital.  Sotomayor set the record – which Craig predicted will never be broken – with eighty-nine visits. Preparation for those visits is vital, because the hot-button issues discussed there will inevitably be raised in the Senate Judiciary Committee.  While few critics are likely to be won in these calls, it is possible to “neutralize or defuse” the intensity of their criticism.  Yet damage can also be done, with Craig citing the experience of Harriet Miers as “exhibit A.”

Lesson No. 8: The nominee should spend time studying for the confirmation hearing.  Even the most brilliant jurists, said Craig, must undergo special legal briefings and “murder boards” – intensive drills and questioning – on constitutional issues that are uniquely salient in the Washington beltway.

The commentary on this week’s oral argument in McDonald v. Chicago continues in full force today.  The WSJ Law Blog’s Ashby Jones, Balkinization, PrawfsBlawg, and The Economist all discuss the debate over whether the Court should rely on the Privileges or Immunities Clause or instead the Due Process Clause.  And a second piece at Balkinization today argues that instead of overturning the Slaughter-House Cases, as the petitioners suggested, the Court should overturn its 1875 decision in United States v. Cruikshank, which held that the Bill of Rights did not “grant” most rights, but instead “secured” them against government interference.  The Christian Science Monitor’s Warren Richey, also turning to history to assess the case, comments on the absence at oral argument of any discussion the Second Amendment’s original militia-focused intent.

At The Atlantic, Andrew Cohen speculates that the Court’s expected ruling extending the Second Amendment will effect a “sea change” in gun ordinance policy, while in an opinion piece at the Chicago Tribune, Steve Chapman characterizes the basic rationale behind Chicago’s gun ban as “flawed,” observing that the law fails to keep guns away from individuals with actual felonious intent, and that such bans are particularly misguided at the local level.  Tony Mauro, writing for the BLT, reflects on some recent commentary on the case by Douglas Kmiec, the U.S. Ambassador to Malta and a professor at Pepperdine Law School.  Finally, in the second portion of a two-part series, Adam Winkler observes at ACSblog that, during the McDonald argument, the Justices appeared inclined to leave state and local governments with a good deal of leeway for the “reasonable regulation” of firearms. (The first part of Winkler’s piece was posted at ACSblog on Wednesday.)

Following up on the decision by Chief Justice Roberts not to block a D.C. court order permitting same-sex marriage in the District, the New York Times covers the subsequent rush to city hall for marriage licenses, which were issued there starting on Wednesday.  Ashby Jones of the WSJ Law Blog covers the D.C. marriage equality controversy as well, and Lyle reported on the Chief Justice’s decision Tuesday on this blog.

Briefly:

• Assessing this term’s “honest services fraud” cases, an editorial today in the Los Angeles Times urges the Court to strike down the law in question on the basis that it is “vague and open-ended.”
• The Baltimore Sun reports on an appearance by former Justice Sandra Day O’Connor on a panel convened by Maryland Attorney General Douglas F. Gansler to discuss judicial reforms.  According to the Sun, O’Connor used the opportunity to call, as she has in the past, for an end to judicial elections.
• The Hartford Courant has coverage of the Court’s denial of cert. on Monday in Sincerely Yours, Inc. v. Cooper, in which a church-operated post office had challenged a lower court ruling ordering it to remove religious materials from its postal counter.
• On Wednesday, the Court hosted U.K. Supreme Court president Lord Phillips of Worth Matravers, and Washington Briefs covers the visit.
• Following the Court’s per curiam order last week vacating the D.C. Circuit’s decision in Kiyemba v. Obama, David J. Cynamon opines at ACSblog that the ruling is a positive one for Guantánamo detainees who have already won their habeas corpus challenges.  By suggesting that the lower court’s ruling might pose a threat to Boumediene, Cynamon argues, the Supreme Court has lifted – at least for now – the “perceived constraints” on the release of detainees awaiting release after successfully challenging their detention.
• In response to Tom’s post on this blog anticipating Justice Stevens’s upcoming retirement, Above the Law’s latest edition of FantasySCOTUS analysis examines Stevens’s behavior in the fourteen cases decided so far this Term.

Reacting promptly to the Supreme Court’s return of a major detainee case to lower courts for a new look, lawyers for seven Guantanamo Bay detainees on Thursday urged the D.C. Circuit Court to pass the case back to a federal District judge to develop the facts on the prisoners’ chances for resettlement abroad.   In a motion to remand, attorneys for the Chinese Muslim Uighurs said the case should not be finally resolved until all of the facts are in.  (The case in the Circuit Court is Kiyemba, et al., v. Obama, et al., lead docket number 08-5424.)

On Monday, the Supreme Court ordered the Circuit Cout to decide what lower courts should do next about the seven Uighurs who have had offers to be transferred out of Guantanamo, but still remain there sixteen months after a federal judge found them eligible for release.  (The Justices had agreed to rule on the case this Term, but opted to return the case to lower courts after the facts had changed.)

The prisoners’ counsel, arguing that the Circuit Court “is not institutionally suited or equipped” to engage itself in fact-finding, asked for a prompt return of the case to U.S. District Judge Ricardo M. Urbina to “determine the facts surrounding purported offers of resettlement abroad.”  If there is an “appropriate, real, and immediate” chance of resettlement, the motion said, Judge Urbina may not need to order that the individuals be sent to the U.S., as he had done earlier.

The motion noted that the Justice Department had suggested that several of the detainees had turned down offers to go to the Pacific island nation of Palau or one other country — since identified as the Indian Ocean nation of the Maldives.  The Department thus suggested that the Uighurs were still at Guantanamo out of personal choice.  Reacting to that, their lawyers wrote: “If the Executive’s position is that they have consigned themselves to life imprisonment, such a dramatic position ought at least to have the benefit of a fully developed record, and briefing addressing those specific facts.”  Two of the seven have offers to go to Switzerland, and have accepted, yet remain at Guantanamo.

In no event, the lawyers contended, should the Circuit Court now simply reinstate its ruling in February of last year that Judge Urbina had no authority to order the release of the Uighurs into the U.S.  The Supreme Court vacated that ruling in its Monday order, so the Uighurs’ counsel argued that ”it would be a mistake to reinstate” that decision “without appropriate factual inquiry, on the theory that factual developments concerning the development of alternatives, or of potential alternatives, are immaterial.”

In discussing the need for a new factual inquiry, the motion said “there is no information in the record that would allow this or any other court to discern the conditions placed upon the purported offers of resettlement, when and why they were later withdrawn, or why they did not lead to release.”

While the motion suggested that Judge Urbina, after further review, may not need to order the transfer of the Uighurs to the U.S., he must have the authority to provide legal relief for them in order to comply with the Supreme Court’s June 2008 decision in Boumediene v. Bush, establishing a constitutional right for Guantanamo Bay detainees to challenge their continued imprisonment.

The Justice Department presumably will soon offer its own views to the Circuit Court on how to proceed next.   The Circuit Court itself has not yet taken any action on the Supreme Court’s order returning the case, according to the Circuit Court docket.

The following three noteworthy petitions were recently filed: Rodrequis Armani Council v. United States (09-936), Louisiana Safety Association of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London (09-945), and Jaskolski v. Daniels (09-946).  Briefs in opposition have not yet been filed, but the questions presented and links to the petitions follow the jump.

Title: Rodrequis Armani Council v. United States
Docket: 09-936
Issue: Whether a Hobbs Act (18 U.S.C. § 1951(a)) prosecution of local robberies that have only a de minimis effect on interstate commerce is an unconstitutional exercise of federal power.  [The United States waived its right to file a response to the petition, which has been distributed for the March 19 conference.]

• Opinion below (4th Circuit)
• Petition for certiorari

Title: Louisiana Safety Association of Timbermen – Self Insurers Fund v. Certain Underwriters at Lloyd’s, London
Docket: 09-945
Issue: Whether Chapter 2 of the Federal Arbitration Act is an “Act of Congress” subject to the anti-preemption provision of the McCarran-Ferguson Act.

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

Title: Jaskolski v. Daniels
Docket: 09-946
Issues: (1) Whether the court below erred in holding that one of the petitioners was an “independent contractor” rather than an “employee of the government,” such that the United States had no authority to supervise or control the manner in which he interrogated federal grand jury witnesses, reviewed grand jury materials, or managed documents or witnesses at a federal criminal trial; and (2) whether the same court erred by including in the definition of “employee of the government” the additional burden of proving that the federal government “pressed [the petitioner] into service” or “required” him to act?

• Opinion below (Court of Appeals of Indiana, District No. 1)
• Petition for certiorari

The Justices hold their private conference today to consider petitions for certiorari and motions in pending cases.  Our list of Petitions to Watch for this conference is here.

No oral arguments are scheduled, and no non-capital orders are expected; if any are issued, we will promptly report on them.

Below, Luke Appling of Harvard Law School recaps Tuesday’s oral argument in Hui v. Castaneda.  Luke’s preview of the proceedings is available here.  Check the Hui v. Castaneda (08-1529 and 08-1547) SCOTUSwiki page for additional updates.

During Tuesday’s oral argument in Hui v. Castaneda, the Court wrestled with the meaning of Section 233(a) and the effect of the later-enacted Westfall Act, while largely avoiding the more ideologically charged questions about the proper role of Bivens actions.

Arguing on behalf of the petitioners, Ms. Elaine Goldenberg argued that Section 233(a) precludes Bivens actions by making the FTCA the exclusive remedy.  Justice Sotomayor questioned whether that could have been Congress’s intent, given that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) had not been decided when Section 233(a) was enacted.  Justice Kennedy, on the other hand, countered that such immunity clauses are designed to apply to both foreseen and unforeseen causes of action, a proposition with which Ms. Goldenberg agreed.  Objecting to what he described as attempts to “psychoanalyze” what Congress may have known, Justice Scalia sought to focus on the text of Section 233(a).  In response, Ms. Goldenberg argued that Section 233(a)’s grant of immunity from “any other civil action” except for the FTCA is very broad and applies to Bivens actions.

Justices Ginsburg and Stevens raised several concerns with the petitioners’ argument.  Justice Ginsburg first noted that the Westfall Act applies to all federal employees, including PHS personnel.  While agreeing, Ms. Goldenberg argued that PHS personnel can take advantage of both the immunities provided by the Westfall Act and the more specific immunities afforded by Section 233(a).  When Justice Ginsburg asked whether recovery would be limited under the FTCA in light of California law, Ms. Goldenberg responded that the cap only applies to non-economic damages, and there may be ways to circumvent the cap in this case.  Finally, Justice Stevens observed that, in Carlson v. Green (1980), the government did not argue that the defendant PHS employee was immune from Bivens actions under Section 233(a).  Ms. Goldenberg responded that it is not clear why the defense was not raised there; in any event, however, the real significance of Carlson is that the Court identified Section 233(a) as an example of Congress’s explicit preclusion of non-FTCA remedies.

Arguing on behalf of the United States as an amicus in support of the petitioners, Assistant to the Solicitor General Pratik Shah reiterated that the plain terms of Section 233(a) are broad enough to preclude Bivens actions even if Congress did not specifically contemplate such actions.  Justice Sotomayor questioned why Congress would immunize PHS personnel from Bivens actions through Section 233(a) but subject other prison personnel to such actions under the Westfall Act.  Mr. Shah argued that Congress sought to revitalize the PHS by providing this immunity.  In response, Justice Scalia argued that, because Section 233(a) and the Westfall Act were enacted by different Congresses, there was no need to reconcile the different treatment they provide to PHS and other personnel, a point with which Mr. Shah agreed.

On behalf of the respondents, Mr. Conal Doyle argued that Section 233(a) does not preclude Bivens actions because it does not specifically indicate that the FTCA is a substitute for Bivens.  Moreover, he argued, the later-enacted Westfall Act clarifies that Congress did not intend the FTCA to be such a substitute.  But questions from the Justices – from both ends of the ideological spectrum – suggested that the Court was quite skeptical of that argument.  For example, Justice Scalia emphasized that Section 233(a) makes the FTCA the exclusive remedy and asked whether the respondents were arguing that the Westfall Act repealed Section 233(a).  When Justices Ginsburg and Breyer similarly asked whether the Westfall Act amended Section 233(a) by implication, Mr. Doyle answered that it did so “in effect” because it is incorporated by reference through the act.

Mr. Doyle also advanced a different interpretation of Carlson, which in his view was significant insofar as it required an explicit declaration by Congress that another remedy was intended to preclude a Bivens action.  Yet Justice Ginsburg interjected that this was a “surprising statement” because the Court in Carlson had identified Section 233(a) as an example of Congress having made the FTCA the exclusive remedy, and Justice Breyer agreed that Carlson’s reference to Section 233(a) is “the problem for [the respondent] in this case.”  Mr. Doyle responded that the Carlson Court cites Section 233(a) as an example of exclusivity, but with regard to malpractice claims rather than Bivens claims.

In her rebuttal, Ms. Goldenberg argued that in cases since Carlson, the Court has found the existence of an alternative remedial scheme sufficient to prevent the recognition of a Bivens action.  The Court asked no questions during the rebuttal.

This edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference tomorrow on Friday, March 5.  As always, it lists the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted.  Links to all previous editions are available in our SCOTUSwiki archive.

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

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

Title: American Chemistry Council v. Sierra Club
Docket: 09-495
Issue: Whether a petitioner may challenge a Clean Air Act regulation after the Act’s sixty-day time period for judicial review has expired, on the ground that the regulatory context of the regulation has changed sufficiently to alter the stakes for judicial review, without first filing a petition with the Environmental Protection Agency to rescind or alter the regulation.

• Opinion below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition
• Brief for the federal respondents in opposition
• Petitioner’s reply
• Amicus brief of the Chamber of Commerce of the United States

Title: Hammer v. Ashcroft
Docket: 09-504
Issues: (1) Whether a permanent ban on face-to-face press interviews with male-death-row inmates, a sub-class of federal prisoners, violates the First Amendment; and (2) whether, to justify such a ban, a “legitimate penological interest” may be established as a matter of law either through post-hoc litigation declarations referring to “security concerns” or, alternatively, by a court’s ability to hypothesize such concerns.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the National Police Accountability Project et al.
• Amicus brief of the Reporters Committee for Freedom of the Press et al.
• Amicus brief of the National Lawyers Guild

Title: Perkins v. Department of Veterans Affairs
Docket: 09-513
Issue: Whether “actual damages” under the Privacy Act, 5 U.S.C. § 552a, are restricted to pecuniary losses only.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Petitioner’s supplemental brief

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

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

Title: McCullen v. Coakley
Docket: 09-592
Issues: Whether the establishment by the Commonwealth of Massachusetts of unique speech-free zones around abortion clinics is consistent with the First and Fourteenth Amendments.

• Opinion below (1st Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioners’ reply
• Amicus brief of the American Center for Law and Justice
• Amicus brief of Constitutional Law Professors
• Amicus brief of 40 Days for Life
• Amicus brief of Walter B. Hoye II and the Life Legal Defense Foundation
• Amicus brief of Dr. Alveda King et al.

Title: Thaler v. Moore
Docket: 09-627
Issues: (1) Whether the district court had authority to grant relief on the respondent’s unexhausted and procedurally defaulted claims when he did not establish either cause or prejudice for his failure to properly present the claims in state court; and (2) whether the courts below erroneously interpreted Texas law in finding that the respondent’s IQ — measured at 76 and 74 prior to his conviction — indicated significantly subaverage intellectual functioning.

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition

Title: Shabaz v. United States
Docket: 09-636
Issue: Whether the “unambiguous and unequivocal request” rule about invocation or waiver of the right to counsel applies in both pre- and post-waiver settings, thereby eliminating the government’s heavy burden of proving that a waiver has occurred or instead applies only in post-waiver or re-invocation settings, after the heavy burden has been met.

• Opinion below (7th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Kentucky v. Baker
Docket: 09-775
Issue: Do the Kentucky residency restrictions for registered sex offenders violate the Ex Post Facto Clause when applied to registrants who committed their offenses requiring registration prior to the effective date of the statute but who resided in a prohibited area after the statute took effect?

• Opinion below (Supreme Court of Kentucky)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Case in which the Solicitor General has recently filed a brief for the United States, as directed by the Court:

Title: American Home Products Corporation v. Ferrari
Docket: 08-1120
Issue: Does the National Childhood Vaccine Injury Act of 1986 preempt a design defect state-law claim against a vaccine manufacturer?

• Opinion below (Supreme Court of Georgia)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Pacific Legal Foundation
• Amicus brief of the American Academy of Pediatrics et al.
• Supplemental brief of the petitioners
• Supplemental brief for the respondents
• Amicus brief of the United States

Case involving lawyers from Akin Gump or Howe & Russell, listed without regard to likelihood of being granted:

Title: Ferguson v. Holder
Docket: 09-263
Issues: (1 )Whether this Court’s holding in INS v. St. Cyr that Section 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (which repealed a provision allowing the Attorney General to waive deportation) does not apply to pre-enactment convictions applies to all immigrants whose convictions pre-date IIRIRA; and (2) whether the presumption against retroactivity applies only when individuals can establish either subjective or objective reliance on prior law.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Immigrant Defense Project et al.

[Akin Gump and Howe & Russell represent the petitioner in this case.]

The following cases that appeared on earlier editions of Petitions to Watch have been redistributed for the March 5 conference:

• Saulsberry v. Myers (09-451): originally conference of February 19
• Belleque v. Moore (09-658): originally conference of February 19
• Nurre v. Whitehead (09-671): originally conference of February 19
• Snyder v. Phelps (09-751): originally conference of February 19

Analysis

Showing some hesitancy to leave it to the State Department to decide when foreign government officials can be sued in U.S. courts for human rights abuses, the Supreme Court on Wednesday struggled to figure out what Congress wanted courts to do with such lawsuits.  Not one of three lawyers who argued in Samantar v. Yousuf, et al. (08-1555) seemed to make a convincing case, thus leaving the Justices to work out a decision, unaided by much beyond their own perceptions, in coming weeks.  The Justices’ puzzlement began in the opening minute of the argument, and remained throughout.

A former high-ranking official of the dictatorial regime in Somalia, now living in Fairfax, VA, is seeking to head off a claim for damages by members of a Somali clan and their relatives that he was responsible for torture, rape and other atrocities during years of repression in the east African nation.  For the Court to rule for him at this stage, however, it appeared that the Justices would have to accept a simple premise: his government would have been immune to a damages lawsuit, so he was, too, since what he did were official acts.  The Justices, though, appeared to regard the issue as notably more complex than that.

The ex-official from Somalia, Mohamed Ali Samantar, fled the country when the regime collapsed nine years ago.  Sued in a federal court in Virginia by Somali expatriates, Samantar is now seeking immunity under a 1976 federal law that supposedly clarified U.S. policy on when a foreign government would be given immunity from lawsuits in American courts.  The law makes no mention of the legal status of present or former officials of a foreign government, but the Supreme Court took his case to clear up a dispute among lower courts on whether, despite that silence, the Foreign Sovereign Immunities Act would insulate individual foreign officers — present or former — from liability.

Samantar’s lawyer, Shay Dvoretzky of Washington, had barely finished his opening sentence when Justice Anthony M. Kennedy wondered how the Court was to sort out that law, and one passed 15 years later (The Torture Victims Protection Act), subjecting foreign officials to lawsuits in the U.S. if they had engaged in torture. Even assuming immunity for foreign officials under FSIA, Kennedy asked, why was that not overridden by the TVPA?  Dvoretzky said the later law had to take into account the “background immunity principles” reflected in FSIA and predating it.  Congress, the lawyer contended, never took away that earlier immunity understanding.

But the response did not clear up the uncertainty that was evident on the bench.  Justice Ruth Bader Ginsburg, for example, wondered if any lawsuit against a foreign officer for wrongdoing would ever be able to survive a claim of immunity.  Dvoretzsky said there could be cases under exceptions written into FSIA, or if the foreign state waived immunity for the official — something Ginsburg suggested would never happen.

Chief Justice John G. Roberts, Jr., also protested the lawyer’s attempt to pare down the importance of the 1991 law allowing lawsuits based on torture claims.  And Ginsburg returned to the fray, suggesting that the lawsuit against Samantar was seeking money from him, not from a foreign government, so that lawsuit was not the equivalent of a suit against the government as such.  The lawyer countered that the issue was not who would pay, but whether the acts at issue were acts on behalf of a government, and that makes them legally immune.

Justice Samuel A. Alito, Jr., then questioned how courts would be able to decide whether an official’s actions were the official acts of a foreign state, Dvoretzky suggested several ways, but insisted that it was not a difficult inquiry anyway.   That led several Justices off into an exploration of other forms of legal immunity, leaving the impression that the Justices were having difficulty sorting out different levels of immunity in the diplomatic and foreign policy context, thus intimating further that Congress may not have spoken clearly enough to guide the courts.

Next, Justice Stephen G. Breyer introduced a further complexity — how to determine immunity if the foreign official no longer was in government or the foreign government simply “disappeared,” with either case perhaps changing the legal equation.   That led Dvoretzky into what seemed like a concession: if the foreign government had ceased to exist, he said, the former official probably could be sued.  He sought to explain: what immunity was all about was foreign government immunity.  That explanation, though, merely served to take Breyer and other Justices off into an exploration of another form of immunity: the so-called “act of state” doctrine.

Justice Scalia moved to bring the argument back to FSIA’s immunity concepts as embodied in its actual text, and in the process undercut Dvoretzky’s alternative argument that, if Samantar is not directly immune because he was acting as the state, he was immune because he qualified as an agent of the Somali government.  Justice Alito also challenged the lawyer’s overall argument about individual liability, noting that “it’s something of a mystery that the FSIA doesn’t say anything at all about this form of [individual] immunity: doesn’t codify it, doesn’t abrogate it, doesn’t preserve the preexisting law.”  Dvoretzky insisted that the issue went unmentioned because it was not in question in 1976.

Before Dvoretzky sat down, the argument moved on briefly to a point that would later emerge with greater clarity: what role the Court should expect, or allow, for the U.S. State Department in advising courts on the concept of foreign governments’ or individual officials’ immunity.

The meandering nature of the argument while Dvoretzky was at the podium continued when the Somali expatriates’ lawyer, Patricia A. Millett of Washington, took her turn.  She immediately sought to use the 1991 anti-torture law as a way to bolster her clients’ claims against Samantar, but promptly encountered comments by Chief Justice and Justice Scalia suggesting that it made little sense for Congress to have barred lawsuits against foreign governments but not for the officials who acted for such a government.  “The only way a state can act,” the Chief Justice said, “is through people.”  Scalia added that it “seems very strange” to write a law giving a government immunity but not its “principal officers,” adding: “I guess you could write it that way, but I don’t know why anybody would want to write it that way.”

Justice Breyer picked up on that point, and suggested that, if a foreign official did not share his government’s immunity, all that lawyers for someone suing the official would have to do was to rewrite the lawsuit to target the individual, for the very same conduct, so the lawsuit could then go forward.  When Millett said that would put the lawsuit outside the immunity grant of FSIA, Breyer retorted that, if that is true, the FSIA law “does nothing whatsoever.”  Unsatisfied, Breyer persisted: “I cannot imagine any complaint that isn’t open to that because…a state can only act through an individual….What you are saying [is that FSIA] is only good as against a bad lawyer, because any good lawyer would simply fill in the right names.”

Breyer then moved on to test what “principle” would govern whether a given present or former foreign official was, in fact, immune to a lawsuit.  He obviously was seeking guidance on what mechanism the courts would use to settle that issue.  Millett responded with a series of variable factors to consider, but did not lay out a governing principle.  She insisted that Congress had provided “a framework” for sorting out individual liability.

The Chief Justice picked up on Breyer’s point, then moved the discussion into what Congress had in mind about the Executive Branch’s role, when courts are pondering whether immunity should be recognized in a given case against foreign wrongdoing.  Congress, Roberts suggested, passed the FSIA “to get the Executive Branch out of the business” of picking and choosing when immunity should be allowed, and when not.  He went on to note that, in this very case, the Executive Branch was arguing that courts should revive the practice of asking the State Department whether immunity existed in a given case.  “It seems to me,” Roberts told Millett, “the whole reason you have the FSIA is undermined by the position you are listing today.”

Justice Scalia joined in, suggesting that FSIA was passed in order to “take away from the Executive” the determination of immunity, and handed it to the courts.  Millett, however, said that the Executive had to remain involved, because of the “foreign relations implications” of immunity questions. Late in Millett’s argument, Justice Ginsburg probed whether she was “in sync” with the Executive Branch’s argument that it was up to that Branch to tell the courts when to acknowledge or deny immunity to a foreign official.  The courts, the lawyer said, should give “respectful deference” to the government’s view, but not “rubber-stamp” it.

Scalia then commented that “the State Department wants to be able to decide whether individuals will be held liable.”  He also said that he would “find it much more acceptable to have the State Department say that a particular foreign country should be let off the hook” than to let that Department decided whether “an individual human being shall be punished.” Justice Kennedy chimed in with a note of his own skepticism about the State Department’s role.

Those exchanges set the stage for a fairly rough time for the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler.   He had only begun when Justice Sonia Sotomayor asked him to discuss the “practical implications” of the government’s position so far as it would allow some lawsuits against individual foreign officials with the State Department continuing to have a role in advising the courts on immunity.  If a lawsuit were filed, and the lawyer kept it alive against an immunity claim by naming specific officials,  “would not grind the courts to a halt” [presumably, while awaiting advice on whether immunity applied].

Kneedler conceded that courts would have to work out the immunity issue at the outset, in order to determine if they had authority to decide the case. When Justice Breyer took a turn probing how immunity disputes would be resolved when individual foreign officials were sued, the government lawyer sought to show that Congress did not want to oust the Executive Branch from advising courts on when immunity for an individual should be recognized.  Using the complex situation that has since developed in Somalia, where there now is no functioning government, Kneedler strove to make a case for a continuing role for the State Department in dealing with “the sensitivities of foreign official immunity.”

But, when Justice Ginsburg tried to nail down whether the U.S. government now considered Samantar to be immune, Kneedler said the government was not taking a position on that now, and noted that further proceedings remain in lower courts.

The Court heard argument yesterday in Samantar v. Yousuf, a case involving whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act extends to an individual acting in his official capacity on behalf of a foreign state.  Highlights from the argument appear in the Wall Street Journal, the New York Times, ABC News, NPR, and on this blog.  At the L.A. Times, David Savage also  reports on the argument, with a focus on the story of Somali expatriate Bashe Abdi Yousuf, the lead respondent.  At the BLT, Tony Mauro uses Chief Justice Roberts’s willingness to extend yesterday’s oral argument beyond the allocated sixty minutes as an example to contrast Roberts’s leadership style with that of his predecessor, the late Chief Justice William Rehnquist – who was known as a stickler for time.  [Disclosure: Howe & Russell and Akin Gump represent the respondents in this case.]

Commentary on the oral argument in McDonald v. Chicago continues full bore.  Adam Winkler at ACSblog hones in on questions by Justice Stevens regarding whether the Second Amendment might apply differently against the federal and state governments.  At the Volokh Conspiracy, Orin Kerr predicts that the Court’s silence on the Privileges or Immunities Clause incorporation option indicates that the Justices “clearly had it in mind to incorporate the Second Amendment via Due Process”; by contrast, Randy Barnett interprets that same silence as a sign of tacit agreement on the point.

In a Bloomberg editorial titled “Give Us the Right to Be Free of Those Who Bear Arms,” Ann Woolner laments the increasing readiness of states and towns to pass laws permitting guns in public paces, a trend she hopes the Court in McDonald will at least not exacerbate by acknowledging “reasonable restrictions” on any Second Amendment recognized against local government.

A ten-minute video of Reason.tv interviewing Eugene Volokh, founder of The Volokh Conspiracy, on the First and Second Amendments appears on Overlawyered (warning: it takes awhile to load).

In an article focusing on the overhaul of immigration detention generally, the New York Times briefly discusses Tuesday’s oral argument in Hui v. Castaneda, reporting that the Court seemed “receptive to the government’s argument that Public Health Service doctors were immune from suit” for failing to provide medical treatment to an imprisoned immigrant.

The Boston Globe editorial staff criticizes recent Court decisions narrowly interpreting the Clean Water Act for “undermin[ing] the ability of the US Environmental Protection Agency to stop pollution of the nation’s waterways.”

After the Court’s opinion in the copyright case Reed Elsevier, Inc. v. Muchnick, Howard Wasserman at PrawfsBlawg praises the opinion for getting a jurisdictional issue “just right and in a straight-forward way, with a minimum of complications or confusion.”

A Washington Post editorial yesterday concluded that the Court “rightly dismissed” Kiyemba v. Obama, the case remanded to the D.C. Circuit last week in light of the offers to resettle all seven petitioners.

Ruben Castaneda of the Washington Post has a story on the potential impact of Monday’s decision in Maryland v. Shatzer, in which the Court held that police can resume questioning of a suspect who has invoked her Miranda rights – following a break in custody of at least fourteen days.  Castaneda interviewed several defense attorneys, who disagreed about the decision’s effect.

Finally, David Ingram at the BLT reports on Tuesday’s speech by Gregory Craig on the selection of federal judges.

Below, Harvard Law School’s Kate Wevers recaps Monday’s oral argument in Holland v. Florida.  Kate’s preview of the argument is available here.  Check the Holland v. Florida (09-5329) SCOTUSwiki page for additional updates.

At Monday’s oral argument in Holland v. Florida, the Court focused on trying to identify a test that would delineate cases in which equitable tolling might be appropriate from cases in which it would not.

Todd Scher, arguing for petitioner Albert Holland, concentrated on the facts of the case.  He argued that whether equitable tolling is available should be determined on a case-by-case basis, without resort to categorical rules.  In this case, he continued, the “confluence of events” – the attorney’s negligence, his assurances to Mr. Holland, Mr. Holland’s diligence, and Mr. Holland’s efforts to get rid of the attorney – warranted equitable tolling.

Several Justices, however, were clearly concerned about where to draw the line in future cases.  Mr. Scher faced a number of questions regarding the line between “negligence” and “gross negligence” – a distinction that Justice Alito described as “ephemeral.”  Justice Sotomayor asked whether the line between negligence (of whatever kind) and intentional, dishonest, or bad faith conduct might be more workable, while Justice Kennedy suggested that it could be unfair to clients who had been the victims of “mere” negligence to draw a line between “gross negligence” and “negligence.”  Justice Kennedy also questioned the requirement that a client have acted diligently, reasoning that such a test would place an ignorant bewildered client in a worse position than a knowledgeable “pesky” client, when arguably it should be the other way around.  (And during the state’s oral argument, Justice Breyer queried why negligence was relevant at all, suggesting that the inquiry should instead be whether the prisoner was diligent, the circumstances were extraordinary, and the result is fair.)

Scott Makar, Florida’s Solicitor General, faced numerous hypothetical scenarios challenging the state’s position that equitable tolling should never be available.  Justice Breyer queried whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Mr. Makar initially maintained that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.   Justice Breyer also suggested that it would be reasonable to read the statute as allowing for some flexibility to account for unusual “human circumstances” –such as counsel becoming “deathly ill.”  But even if equitable tolling were sometimes available, Mr. Makar emphasized, it should be limited to extreme attorney misconduct or incompetence – which in his view was not present in this case.  That argument, however, drew a question from the Chief Justice regarding why a missed deadline is not extreme attorney incompetence.

The mood of the Court was perhaps best summarized by the Chief Justice, who commented during the state’s argument that it is very hard to argue against equitable tolling, but that there is also a need for a “constraining principle” so as not to “do away with” the statute of limitations entirely.