ACSBlog: The Blog of the American Constitution Society

Late last year, University of Chicago law professor Geoffrey R. Stone examined how the Supreme Court decides hard cases, what it means to be a conservative or liberal judge and what he views as the proper mode of constitutional analysis in his six part blog series on “constitutionalism.”

In a recent article, Professor Stone explained the Framers’ understanding of the role of the courts. He started with a discussion of the greatest danger to liberty:

A fundamental challenge facing the Framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."

A George Washington University Law School professor noted that two-thirds of patent appeals judges may have been unconstitutionally appointed, calling into question hundreds of decisions rendered over the past eight years. Professor John F. Duffy wrote that the Director of Patent and Trademark Office appointed the judges, which likely violates the appointments clause of the Constitution.

Justice Antonin Scalia was interviewed on 60 Minutes Sunday evening. The full story (including video) is available here. Part 1 of the video is available below. Part 2 is below the fold. Update: Justice Scalia was also interviewed on NPR (parts 1, 2, 3) and by the ABA Journal (here).

Professor Geoffrey R. Stone of the University of Chicago Law School explained his view of the proper mode of constitutional analysis, including a critique of originalism and conservative activitism,  in this series of articles.

The U.S. Supreme Court issued a 6-3 decision in the voter ID case Crawford v. Marion County Election Board, rejecting a challenge to an Indiana law that requires voters to show a government-issued photo ID before being allowed to vote.

Justin Levitt, Counsel at the Brennan Center for Justice, described the case for ACSBlog as turning on two issues. “The Court will determine whether a law that makes it substantially more difficult for many eligible citizens to cast a valid ballot is toward the ‘severe’ end of the spectrum of First Amendment infringements. And it will determine whether such a law is sufficiently justified by a state’s asserted interest in confronting a hypothetical concern.” He predicted the decision “will set the ground rules governing which eligible American citizens will be able to exercise their right to vote, and which eligible citizens will not, in 2008 and beyond.”

According to SCOTUSBlog, “three Justices said the evidence offered against the requirement in Indiana did not support a challenge to the law as written — that is, a ‘facial’ challenge – and three others said the law only imposed a minimal and justified burden on voters. Three Justices dissented.”  Thus, “a majority of the Court has not barred all future challenges to voter ID laws, provided future cases seek to test such laws as they were actually applied in a specific election.  Still, the plurality opinion that announced the Court’s judgment – written by Justice John Paul Stevens — probably means that any such ‘as-applied’ challenges would not be easy to make.”

ACS hosted a press briefing on the case before arguments in January. Video and a transcript from that discussion are available, which featured Deborah Goldberg, Bradley A. Smith, Jon M. Greenbaum, and moderator Tova Wang. Audio of the argument before the High Court is available here.

The U.S. Supreme Court heard argument in six cases this week. ACSBlog previewed argument in the campaign finance case Davis v. FEC, regarding the constitutionality of the so-called "millionaire's amendment" that relaxes campaign finance limits for opponents of self-funded candidates, and the employment discrimination case Meacham v. Knolls Atomic Power Laboratory, regarding who bears the burden of proving that firings were based on reasonable factors other than age.

Other cases concerned whether a plaintiff has standing under Article III when he is assigned the right to pursue a legal claim but will not garner proceeds from the outcome, whether traditional rational basis equal protection analysis applies to public employment decisions, a confrontation clause case, and an ERISA case. Transcripts are available here. This week marks the end of the argument calendar for the 2007-2008 Term.

The Supreme Court granted certiorari in two cases this week. Chambers v. U.S. concerned whether, under enhanced sentencing guidelines, the failure to report to prison is the equivalent of escape. U.S. v. Eurodif involves the question of whether uranium enrichment service contracts are subject to federal anti-dumping laws. The Court denied certiorari in a number of cases, including Exxon's appeal of a $112 million verdict in an environmental lawsuit (Exxon has another case pending before the Court regarding the Exxon Valdez oil spill), and 11 death row appeals.

by Doug Kendall, founder and Executive Director of Community Rights Counsel (CRC), a public interest law firm in Washington DC. He is in the process of launching a new organization, Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven’t gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

Yesterday, the White House threatened to veto legislation that "would make it easier for victims of discrimination to sue their employers over unequal pay," the Washington Post reported. The legislation, known as the Lilly Ledbetter Fair Pay Act of 2007, seeks to overturn a 5-4 U.S. Supreme Court ruling in Ledbetter v. Goodyear Tire & Rubber. In that case, the Court narrowly interpreted employment discrimination law to prohibit a lawsuit for gender-based pay discrimination unless the discrimination occurred within 180 days of the plaintiff's filing suit, regardless of when she found out about the discrimination. A Congressional Research Service Report explained the issues at play in Ledbetter:

In Ledbetter, the female plaintiff alleged that past sex discrimination had resulted in lower pay increases and that these past pay decisions continued to affect the amount of her pay throughout her employment, resulting in a significant pay disparity between her and her male colleagues by the end of her nearly twenty year career. Under Title VII, a plaintiff is required to file suit within 180 days after an alleged unlawful employment practice has occurred. Although the plaintiff in Ledbetter argued that each paycheck she received constituted a new violation of the statute and therefore reset the clock with regard to filing a claim, the Court rejected this argument, reasoning that even if employees suffer continuing effects from past discrimination, their claims are time barred unless filed within the specified number of days of the original discriminatory act.

Catherine Fisk, Duke University professor of law, previewed the Ledbetter case in this blog post. Fatima Goss Graves, Senior Counsel at the National Women's Law Center, provided additional analysis of the case and the legislation before Congress. The Post also ran this editorial. ACS explored three other employment discrimination cases before the Court in this press briefing from February 2008.

Today, the U.S. Supreme Court unanimously held, in Virginia v. Moore, that it is not unconstitutional for police to conduct a search following an arrest , even if the arrest violated state law, so long as the police had probable cause. In this case, instead of giving David Lee Moore a ticket for a misdemeanor traffic offense, police arrested him, took him to a hotel, and conducted a personal search, finding cocaine in his jacket pocket. SCOTUSBlog has more here and here.

Former Associate Justice Sandra Day O'Connor said "we put cash in the courtrooms, and it's just wrong" at a conference at Fordham Law School on enhancing judicial independence. As recounted by the Brennan Center for Justice, Justice O'Connor noted that in her last years on the bench, judges have come under increasing attack for their opinions.

Today, the U.S. Supreme Court released three decisions. It upheld the use of lethal injections in Baze v. Rees, although no opinion represented the views of five justices. SCOTUSBlog covers the decision, and we have this preview. In Burgess v. U.S., the Court unanimous held that, regardless of the state law classification, a drug crime punishable by more than one year in prison constitutes a felony drug offense. It also held, 6-3, that drunk driving does not constitute a violent felony warranting an enhanced prison sentence under federal law.

Big Changes On The Federal Circuit. Two-thirds of the U.S. Court of Appeals for the Federal Circuit will be eligible for senior status within the next two years, according to Judge Kimberly Moore. Established in 1982, the Federal Circuit has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, claims against the federal government, federal personnel and veterans' benefits.

New York Judges Compensated Like It's 1999. Attorney Bernard Nussbaum will file suit on behalf of New York's judges whose pay has not been increased in nearly 10 years, arguing that state lawmakers breached the separation of powers doctrine by linking judicial pay to raises for legislators. New York state level judicial compensation ranks 49th in the nation, with full-time annual pay ranging from $108,800 to $136,700.

Courtroom to Classroom. New Mexico Magistrate Judge Daniel Hawkes brought his courtroom to local classrooms as part of an outreach program to show students the dangers of alcohol. 400 students watched as he sentenced Marlene Chavez to four days in jail and a $500 fine for a second drunken-driving offense.

In an article just published in the Columbia Law Review, Yale Law School Heyman Fellow David Pozen writes about what he calls "the irony of judicial elections." The central irony, according to Pozen, is that as judicial elections achieve greater legitimacy as elections, they will increasingly undermine the judiciary's distinctive role and our broader democratic processes.

He reaches this conclusion after first synthesizing arguments for and against elective judiciaries and exploring how recent developments have increased both their costs and their benefits. Ultimately, Pozen concludes:

I am not suggesting that there are universal answers when it comes to state judicial selection—just that the debate is being conducted on the wrong terms. Those who would support elective state judiciaries ought to be openly celebrating the new era. Those who would have the judiciary be more than just another majoritarian branch might do well to abandon the accommodationist posture, at least for a moment, and to remind the public and each other that there is no adequate remedy for this threat save to dismantle judicial elections.

The U.S. Supreme Court announced March 31 that it will hear a Utah dispute over a religious group’s request for a display of its religious messages, called “Seven Aphorisms,” in a city park alongside a Ten Commandments monument. The Supreme Court granted cert. for a review of the 10th U.S. Circuit Court of Appeals’ decision, Pleasant Grove City v. Summum, in favor of the Salt Lake City-based religious group.

When the U.S. Supreme Court denied certiorari in Hurn v. U.S. on Monday, March 31, it refused to review judicially imposed punishments of defendants acquitted for certain crimes, David Savage reported in the Los Angeles Times.

SCOTUSBlog has full coverage of the Supreme Court's decision in a water boundaries case, its refusal to grant certiorari in a "speech or debate" clause case arising from the FBI's search of a Congressional office, and its grants of certiorari regarding a religious sect that wants to add a 10 Commandment-like monument to a public park and a First Amendment challenge to an Idaho law that prohibits local governments from allowing employee payroll deductions to pay for political activities by labor unions.

This CRS Report further delves into the Constitution's "speech or debate" clause

Two Decisions: The Supreme Court issued two decisions this week in Medellin v. Texas and Hall Street v. Mattel. The Medellin opinion, written by Chief Justice Roberts (with Justice Stevens concurring and Justices Breyer, Souter, and Ginsburg dissenting), attracted significant commentary. As Edward Lazarus described, it pitted the Court's states' rights advocates against advocates for greater presidential power and internationalists against those disdainful of international law. The Court held that rulings by the International Court of Justice require additional congressional action before being binding on the states, and that a presidential order to the states to give effect to the treaty has no legal effect. The Hall opinion, written by Justice Souter (with Justices Stevens, Kennedy, and Breyer dissenting), held that parties cannot contractually agree to expand judicial review beyond that allowed by the Federal Arbitration Act, in this case, to errors of law.

Seven Arguments: The High Court heard argument in seven cases this week (transcripts available here). The cases included a jurisdictional question of whether U.S. courts can hear habeas appeals from American citizens held by U.S. coalition-led forces in Iraq, the level of competency necessary for self-representation in a criminal trial, and whether the Voting Rights Act was violated by the appointment of a county official instead of holding a special election. SCOTUSBlog has more here.

Cert.: The Supreme Court granted certiorari in two cases this week. In U.S. v. Hayes, the Court will examine what the relationship between the offender and victim must be to qualify as a "misdemeanor crime of domestic violence." In Pearson v. Callahan, the Court will examine whether police may enter a home without a warrant immediately after an undercover informant bought drugs inside and whether qualified immunity was properly denied to the police officers involved.

Triple Play: Litigator (and frequent ACS program participant) Tom Goldstein scored a "triple play" this week when he worked on three cases argued before the U.S. Supreme Court on the same day.

John Wonderlich at the Open House Project makes an interesting point in that the Congressional Record isn't always all that accurate, even though corrections, by rule, should be limited to typographical and grammatical errors.

Yesterday, Attorney General Michael Mukasey argued before the U.S. Supreme Court in U.S. v. Ressam.  In what the Legal Times called "a not too taxing case to argue," the Attorney General was "characteristically dry and to the point," at least in the assessment of the New York Times.

The Attorney General continued a tradition (interrupted by his two immediate predecessors) of arguing at least once before the Court. Uncommonly, he finished the argument with fourteen minutes to spare.

In an interesting (and lengthy) think piece, Jack Balkin explores "judicial restraint in a system of judicial review." Here's a snippet:

If you think that the Constitution prohibits X, then striking down X is not a violation of the principle of judicial restraint; it's enforcing the law. If you think that the Constitution does not prohibit X, then the call for judicial restraint also makes perfect sense because it's also an argument for enforcing the law properly. However, if you say that you think X violates the Constitution but you don't think judges should strike it down or enjoin it, then you are saying you are willing to let certain violations go unremedied in law. This sits uneasily with rule of law notions about what judges are supposed to do.

He identifies several ideologies behind calls for judicial restraint:

• [A]rguments for "more judicial restraint" are often thinly disguised forms of arguments about what the Constitution substantively protects or does not protect.
• [Y]ou have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action. As noted previously, this is really an argument against judicial review.
• [Y]ou have strong views about what the Constitution protects, but you believe those views should only be enforced through statutory law or executive action because you think courts aren't very good at enforcing these particular kinds of rights.
• [Y]ou have strong views about what the Constitution protects, but you think that you should not express them openly or fully in judicial opinions because you might be wrong, and because whether you are right or wrong, your announcement might have certain bad consequences.
• [O]utside of securing basic norms of political competition, the Constitution should not be interpreted to prohibit much of anything at all.

The Supreme Court issued two opinions today.

In Medellin v. Texas, the Court 6-3 rejected the argument that the President alone could make an international treaty binding law inside the United States, and held that rulings by the International Court of Justice are not binding on U.S. States when those rulings contradict states' criminal procedure rules. The majority opinion, written by Chief Justice Roberts, said that rulings by the ICJ, although imposing an international obligation on the US, are not automatically given legal effect under the U.N. Charter. Lyle Denniston of Scotusblog summarizes the decision. Justice Stevens concurring in the judgment, with Justices Breyer, Souter, and Ginsburg dissenting.

In Hall Street Associates v. Mattel, the Court held that parties cannot contractually agree to expand court review of an arbitration agreement beyond that permitted by the Federal Arbitration Act.

A preview of Munaf v. Geren and Geren v. Omar, scheduled for oral argument today before the Supreme Court, on whether the U.S. courts have jurisdiction to hear a habeas petition from two American civilians held by the U.S. military (in the form of "coalition forces") in Iraq and set to be transferred to Iraqi custody, is available from the Associated Press.

The U.S. Supreme Court will hear argument in seven cases this week. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, March 24

• Burgess v. U.S. (06-11429) (whether an offense classified as a misdemeanor but punishable by more than a year in prison qualifies as a "felony drug offense" and thus triggers a mandatory minimum sentence)
•  U.S. v. Clintwood Elkhorn Mining Company (07-308) (whether a coal company that did not meet the Tucker Act statute of limitations may seek a tax refund (with interest) directly under the Export Clause of the Constitution)
•  Riley v. Kennedy (07-77) (whether the appointment of a county official instead of holding a special election in Alabama violated the pre-clearance provisions of the Voting Rights Act)

Tuesday, March 25

• Munaf v. Geren/ Green v. Omar (06-1666) (whether federal courts have jurisdiction to consider a habeas petition of a U.S. citizen detained by U.S.-led coalition forces in Iraq pending a transfer to Iraqi authorities following a conviction in an Iraqi criminal court)
• U.S. v. Ressam (07-455) (whether 18 U.S.C. 1844(h)(2), which mandates 10 years in prison for carrying an explosive during the commission of a felony, requires the explosives to be carried “in relation to” the underlying felony)

Wednesday, March 26

• Indiana v. Edwards (07-208) (whether the Sixth Amendment grants a defendant found competent to stand trial the right to represent himself in a criminal proceeding)
• Florida Dept. of Revenue v. Piccadilly Cafeterias (07-312) (whether a state may tax a court-ordered transfer of property from a chapter 11 bankruptcy estate to a third-party purchaser of the bankrupt party’s assets)

Questions Presented are below the fold.

Deputy Solicitor General Edwin Kneedler argued his one hundredth case before the Court this past Monday, more than any lawyer currently in practice, according to the Blog of the Legal Times.

Justice Elected. In Florida, State Supreme Court Justice Peggy Quince will become Chief Justice Peggy Quince, the state’s first African-American female chief justice, after being elected by her six fellow justices for the rotating two year post. Labeled an “outstanding jurist” by lawyers, she was selected for the court in 1998 in an unusual shared appointment by outgoing Democratic Governor Lawton Chiles and incoming Republican Governor Jeb Bush. Quince has a first hand understanding of the power of law. She was attending a segregated school when the U.S. Supreme Court issued its historic 1954 decision in Brown v. Board of Education.

Justice Appointed. Minnesota also has a new Chief Justice of its Supreme Court. Eric Magnuson, well known in local legal circles and described as a “lawyer’s lawyer” and “an appellate lawyer’s appellate lawyer,” was appointed this week by Governor Tim Pawlenty, his former law firm partner, to the top post.

Justice Delayed? The chief justice of the Rhode Island Supreme Court, who is also a judge on the U.S. Court of Military Commission Review, the panel created last year to hear appeals from detainees convicted of war crimes and to review other decisions made by military tribunals, is eager to start hearing those cases. One problem, the first cases he could hear are still months away.

In an elaboration of Batson v. Kentucky, the Supreme Court held 7-2 Wednesday that the prosecutor's use of five peremptory challenges to strike 5 black jurors (the defendant is black) and proffer of unconvincing "race neutral" explanations was so "unconvincing" and "suspicious" that the trial judge had committed clear error in not inquiring further. The case gained notoriety when the prosecutor referred to it as his "O.J. Simpson case." The two dissenters in Snyder v. Louisiana, Justices Thomas and Scalia, would have deferred to the trial judge. Snyder will get a new trial after having spent twelve years on death row.

by Yannick Morgan

Coming from a big school in the Deep South, I once believed that when over 100 people camp out on a freezing cold night waiting for tickets in a single file line wrapped around an oversized building, it could mean only one of two things: the biggest collegiate sporting event of the year or a raucous Kenny Chesney concert. When I participated in a Washington version of this ritual for the first time Monday night, I found a no-less impassioned group of people. They had come from all over the United States to witness oral arguments in District of Columbia v. Heller before the highest court in the land.

Earlier this week, the U.S. Supreme Court granted certiorari in eight cases. All, according to SCOTUSBlog, are likely to be heard in next year's Term. The orders, and links to lower court decisions, are available here. ScotusWiki has links to all cases granted for the 2008 Term.

The cases involve freedom of speech, voting and democracy, immigration, business, and criminal law.

Today, the U.S. Supreme Court upheld Washington State's primary election system against a facial challenge that argued that the system violated political parties' associational rights by forcing them to associate with candidates not of their choosing. If implemented, the primary election system, passed by voter initiative in 2004, would allow candidates to choose a party label to accompany their name on the ballot, in addition to permitting voters to vote for any candidate regardless of party affiliation and advancing the top two vote-getters for each office to the general election.

The 7-2 decision in Washington State Grange v. Washington State Republican Party, with the majority opinion written by Justice Thomas, left the door open to an as-applied challenge to the law and hinted at ways the law could survive such a challenge. Justice Thomas identified the key issue as "whether a primary system that indicates each candidate's party preference on the ballot, in effect, chooses the parties' nominees," or at a minimum whether voters will assume "that the parties associate with, and approve of [the nominees]." After footnoting that the First Amendment does not give political parties a right to have their nominees designated as such on a ballot, the majority opinion asserts that there is no basis to assume that voters will conclude that a political party approves of a particular candidate.

The U.S. Supreme Court will hear argument in five cases this week. Follow the links for a press briefing and blog discussion regarding the Second Amendment case, Heller. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, March 17

• Philippines v. Pimentel (06-1204) (whether, under Federal Rules of Civil Procedure, a court must dismiss an interpleader action involving a foreign country that has successfully claimed sovereign immunity)
• Rothgery v. Gillespie County (07-440) (whether the Sixth Amendment right to counsel attaches to defendants brought before a magistrate and jailed pending posting of bond if prosecutors were not involved in the arrest or court appearance)

Tuesday, March 18

• District of Columbia v. Heller (07-290) (whether DC law violates the Second Amendment rights of individuals who are not affiliated with any state-regulated militia but wish to keep handguns and other firearms for private use)

Wednesday, March 19

• Richlin Security Service Co. v. Chertoff (06-1717) (whether paralegal services are to be paid at the market rate for such services, or only at the level of their actual cost)
• Chamber of Commerce v. Brown (06-939) (whether a California law barring employers from supporting or opposing unionizing efforts with money received from the state is constitutional)

Questions Presented are below the fold.

The Judicial Conference, the policy-making body of the federal courts, this week approved significant changes in the regulations for how complaints of judicial misconduct are handled. The changes include greater public access to cases in which judges are disciplined by their colleagues.

A new study found that California's high court is the most influential state court in the nation, based on a tabulation of how many times individual state court decisions were followed by other courts. The study, published in the University of California, Davis law review, analyzed decisions for the last 65 years up to 2005 and found that more than 24,000 state high court cases have been followed at least once.

California leads with 1,260 decisions. Washington is next, with 942, and Colorado is third, with 848. New York comes in 10th and is only about half as influential as California, with 627 followed cases. One reason for California's primacy, according to Missouri Supreme Court Judge Michael A. Wolff, is that the California court has been “out in front in emerging theories of liability.”

Recent Supreme Court decisions by Justice Scalia “and his fellow conservatives” indicate that after a quarter century on the federal bench “'judicial restraint’ has been dropped from Scalia’s playbook” when it involves regulatory issues at both the state and federal level, according to an article in The American Prospect.

Simon Lazarus and Harper Jean Tobin assert that the justice and his allies “appear on course to reverse generations of precedent and, with scant or no authorization from Congress, shut down all 50 states' tort law regimes insofar as they apply to medical devices, drugs, or other products regulated by the federal Food and Drug Administration.” ACS recently hosted a panel discussion on preemption and the Supreme Court.

In related news, Columbia law professor Michael C. Dorf criticized Justice Scalia’s recent attack on “the living Constitution,” noting that this terminology is “a problematic metaphor, but only because originalists like Justice Scalia either misunderstand or mischaracterize what it stands for.” ACS recently published a special issue of Advance devoted to papers presented at a symposium on "Keeping Faith with the Constitution in Changing Times."

This past week, ACSBlog presented a ten-part conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. The following are brief snippets of the conversation, with links to each blog post.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"
Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning. (more)

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance
No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation? (more)

Take a virtual tour of the U.S. Supreme Court.

(H/T The Volokh Conspiracy)

The U.S. Supreme Court issued rulings in four cases in the last two weeks.  

This past week, in Warner-Lambert v. Kent, an equally divided Court (J. Roberts, recused) affirmed a Second Circuit ruling without opinion on whether federal law preempts a state law-based claim that the FDA's approval of a drug was based upon fraud. In Boulware v. U.S., in a unanimous opinion written by Justice Souter, the Court held that a stockholder who treats income from a distribution by a corporation that has no earnings as a "return of capital" need not produce evidence of prior intent to treat the distribution as such to avoid a criminal tax evasion charge. SCOTUSBlog has more.

Last week, in Fed Ex v. Holowecki, Justice Kennedy wrote for seven members of the Court that an individual filing a discrimination complaint with the EEOC should not be penalized because of mistakes made by the agency, and allowed an age discrimination lawsuit to proceed despite the filing of a non-standard "charge" form. Justices Thomas and Scalia disagreed, arguing the majority absolved the EEOC of the obligation to correctly administer the law.

In a unanimous opinion written by Justice Thomas in Sprint/United Management Company v. Mendelsohn, the Court held that the question of whether evidence of discrimination by other supervisors (known as "me, too" evidence) should be admitted in an employment discrimination case depended upon a "fact-intensive, context-specific inquiry," thereby adopting a case-by-case approach that will give plaintiffs a greater chance of surviving summary judgment.

While the Court was in recess this week, last week the high court heard argument in four cases on issues including a punitive damages award arising from the Exxon Valdez disaster, federal preemption of state law based pharmaceuticals fraud claims, the quantum of proof to prove a false claim in federal contracting, and a question of statutory interpretation regarding federal money-laundering law.

It also granted certiorari in three cases last week, all of which are likely to be argued next Term. They involve a warrantless car search after the arrest of its occupant, the kind of review appropriate for jury instructions in a habeas case, and the government's power to take land for unrecognized Indian tribes.

Yesterday, the Senate Judiciary Committee unanimously approved the nominations of Kevin O'Connor and Gregory Katsas to respectively serve as the next Associate Attorney General and head the Department of Justice's Civil Division, the Legal Times reported. O'Connor would become the department's third-in-command, replacing Katsas who had temporarily held the position.

The committee also unanimously approved the following four district judge nominees: Brian Miller (E.D. AK), James Hall (S.D. GA), John Mendez (E.D. CA), and Stanley Anderson (W.D. TN).

Doug Kendall, who discussed the conservative judicial project in this excellent introduction to the 2007-2008 Supreme Court term, examines the Court's decisions thus far this term in an article in Slate, concluding that "by investing heavily in legal strategy and working patiently in case after case, the [Chamber of Commerce] has won victories that have gradually shifted the ground rules in its favor." He writes:

With the Supreme Court term moving past the halfway mark, corporate America's long-term investments in the federal judiciary are yielding impressive returns. . . . In the wake of [Lewis] Powell's memo [that, 37 years ago, alerted the Chamber of Commerce to a "neglected opportunity in the courts"], the business community seeded a vast body of scholarship and created a nationwide network of pro-business legal organizations. This investment has quietly borne fruit for decades—and, this term in particular, landed corporate America the wins that thrilled [the Chamber of Commerce's Executive Vice President Robin] Conrad, and more besides.

The Volokh Conspiracy is hosting an excellent discussion on advice for soon-to-be judicial clerks.

by Glenn Sugameli, Senior Legislative Counsel at Earthjustice

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

Linda Greenhouse, who has covered the U.S. Supreme Court for the New York Times for longer than any current Justice save John Paul Stevens has served on the Court, will retire at the end of the Term. Watch her discuss the 2006-2007 and 2005-2006 Terms.

by Center for Progressive Reform scholars Alexandra Klass, University of Minnesota Law School, and Sandra Zellmer, University of Nebraska College of Law

This morning, the Supreme Court will hear oral argument in the case of Exxon Shipping Company v. Baker. The case, brought by commercial fisherman against Exxon Mobil, arises out of the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska in 1989, causing the release of 11 million gallons of oil. More birds and marine mammals were killed than in any other U.S. oil spill to date.  The harm to affected species continues to this day, due to the loss of critical food sources, smothered spawning grounds, and decreased reproduction. In 2007, the U.S. Fish and Wildlife Service concluded that “history will judge the Exxon Valdez oil spill as the worst kind of spill in one of the worst places for a spill--an incredibly rich ecosystem.”

The latest issue of Gavel to Gavel, on judicial recusal, is available from the National Center for State Courts.

The U.S. Supreme Court granted certiorari in three cases today. They involve a warrantless car search after the arrest of its occupant; whether jury instruction in a habeas case should receive structural or harmless error review; the government's power to take land for unrecognized Indian tribes.

SCOTUSBlog has more information.

The U.S. Supreme Court will hear argument in four cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, February 25

• Cuellar v. U.S. (06-1456) (definition of concealing crime proceeds under federal money-laundering law)
• Warner-Lambert Co. v. Kent (06-1498) (federal preemption of state law-based claim of fraud on a federal agency regarding drug approval)

• Allison Engine Co. v. U.S. (07-214) (proof needed to show false claim in federal contracting)

Wednesday, February 27

• Exxon Shipping Co. v. Baker (07-219) (duty to pay punitive damages for ship spilling of oil in Alaska; maritime law issues)

Questions Presented are below the fold.

A judge in Niagara Falls City -- who last year had 46 defendants taken into custody after being unable to determine the owner of a ringing cell phone in his court -- is appealing the New York state commission’s recommendation to remove him from the bench.

The U.S. Supreme Court issued five opinions today, three of which regard preemption of state laws, one on the retroactive effect of U.S. Supreme Court decisions as applied through state law, and an ERISA-related decision.

The decisions are in Rowe v. New Hampshire Motor Transport Association, Preston v. Ferrer, Riegel v. Medtronic, Danforth v. Minnesota, and LaRue v. DeWolff.

ACS hosted a panel discussion on Riegel v. Medtronic. ACSblog featured a guest blog post analyzing Rowe v. New Hampshire Motor Transport Association. More information on the 2007-2008 Term is available here.

The U.S. Supreme Court granted certiorari to four cases today and added a fifth under its original jurisdiction.

The Court added another employment discrimination case to those already on the docket, this one on the enforceability of a labor union contract provision that waives union members' rights to bring workplace discrimination claims to court. Also relating to unions, the Court will examine whether they may charge non-members for the cost of lawsuits related generally to union members' rights.

The Court will revisit the "exclusionary rule," exploring whether to permit evidence found in a search that resulted from erroneous information from an officer who did not conduct the search. It will also examine an ERISA (pension) case involving divorcing spouses, and a water rights dispute between Montana and Wyoming.

SCOTUSBlog has more details on the cases. A report from the Associated Press discusses the Court's denial of writs of certiorari, including a very interesting ACLU challenge to the Bush administration's warrantless wiretapping program that was denied on standing grounds and implicated the government's assertion of the state secrets privilege.

The Supreme Court also heard argument in two cases today – transcripts available here.

Here is a comprehensive list of the House and Senate schedules and hearings. The House and Senate are in recess this week.

The only hearing scheduled for this week is a Senate Judiciary Committee meeting to examine judicial nominations. The nominations under consideration are: Catharina Haynes, of Texas, to be United States Circuit Judge for the Fifth Circuit, John A. Mendez, to be United States District Judge for the Eastern District of California, and Stanley Thomas Anderson, to be United States District Judge for the Western District of Tennessee.

The protections workers have against retaliation by their employers when they complain of discrimination is the subject of three cases before the Supreme Court and this ACS press briefing held on February 12, 2008.

On Tuesday, the Supreme Court will hear argument in Gomez-Perez v. Potter regarding federal employees who complained about age discrimination. On Wednesday, the Supreme Court will hear argument in CBOCS West v. Humphries regarding whether Section 1981 of the Civil Rights Act covers complaints in racial discrimination cases. The Court has not yet scheduled argument in Crawford v. Metropolitan Government of Nashville on the extent that Title VII protects employees who cooperate in an employer's internal investigation into sexual harassment.

Below are video excerpts from ACS's press briefing that featured Eric Dreiband, Jocelyn Frye, Daniel Kohrman, William L. Taylor, and moderator Michael Gottesman. Video of the event is available here.

The U.S. Supreme Court will hear argument in three cases this week starting on Tuesday. The two employment retaliation cases were previewed at an ACS briefing. More information on the Term, including briefings, analysis, and videos, may be found here.

Tuesday, February 19

• Gomez-Perez v. Potter (06-1321) (federal employee protection against retaliation for complaint about age bias in the workplace)
• Morgan-Stanley Capital Group v. Public Utility District 1 (06-1457) and American Electric Power Service Corporation  v. Public Utility District 1 (consolidated) (06-1462) (federal regulators’ power to undo wholesale electric power sales contracts)

Wednesday, February 20

During a visit at Rutgers University, U.S. Supreme Court Associate Justice Samuel Alito complained that the television program "The Sopranos" has spread stereotypes about Italian-Americans. Alito lived for nearly twenty years in the area of New Jersey in which the show was set.

Chief Justice Roberts and his wife, Jane, are two of just 33 people in their county's half a million voters to use a little-known “confidential voter” exception to Maryland's public records law, which allows them to avoid having to list their address, birth date, party affiliation and history of electoral participation.

The latest issue of National Center for State Courts' publication Gavel to Gavel offers a review of state legislative measures to remove judges from office for rendering specific decisions. The newsletter notes that the practice of drafting and considering articles of impeachment for judicial decisions has "become more widespread and are not necessarily only contending with highly charged political issues."

U.S. Court of Appeals for the D.C. Circuit Judge Douglas Ginsburg will step down as Chief Judge effective February 10, although he will remain on active status. He will be succeeded by Judge David Sentelle.

U.S. District Judge Leonie Brinkema defended the federal courts' ability to handle terror trials while condemning the government's decision to seek a death sentence for Zacarias Moussaoui as politically motivated. In addition, Judge Brinkema said the idea of a national security court should "send shivers down the spine of everyone" and criticized the use of torture to obtain evidence because "coerced testimony is inherently unreliable."

Students, practitioners, and law schools are benefiting from Supreme Court litigation clinics established at several high profile schools, the ABA Journal reported. In light of the increasing influence of experienced advocates before the Supreme Court and its diminished caseload, clinics offer practitioners the benefits of what are essentially “miniature pro bono law firms,” providing the resources necessary to carry cases through the appellate level along with additional opportunities to argue before the high court. Students gain valuable hands-on experience and perhaps a once-in-a-lifetime opportunity to be involved in a Supreme Court case. Law schools gain bragging rights and a recruiting tool to attract talented students.

A number of experienced litigators have led the way in sharing their expertise and time with students. For example, Thomas Goldstein, a partner at Akin Gump Strauss Hauer & Feld and author of SCOTUSblog, volunteers with Stanford Law School's clinic. Joseph Guerra, a partner with Sidley Austin, volunteers with Northwestern.  

Pamela S. Karlan, who founded Stanford's clinic, explains that "for many firms, [volunteering with a clinic is] almost a loss leader. . . . [C]lients go to the firms with the understanding that, although hardly ever does a case go to the Supreme Court, this is a firm that's capable of taking it there if it does."

In a speech last week, South Carolina Supreme Court Chief Justice Jean Toal defended the court's decision to throw out results of a section the bar exam, allowing 20 additional people to pass.

The controversy arose after the Jim Harrison, chairman of the state's judiciary committee, and Circuit Judge Paul Burch contacted the court after their daughters flunked the exam, although they deny any intent to obtain special treatment. The Court did uncover one examinee that was incorrectly certified as having passed the test. To avoid a potential lawsuit, the Court threw out the section, thereby allowing the daughters, and 18 others, to pass.

Former U.S. Court of Appeals Judge (and ACS Board Member) Patricia Wald testified on the ability of federal judges to administer the state secrecy privilege "in a manner that will not endanger national security" while permitting litigants "to the maximum degree feasible to pursue valid civil claims for injuries" before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

The time is now ripe for [Congress to legislate regarding the secrecy privilege] in the civil arena; litigants and their counsel are confused and unsure as to how to proceed in cases where the government raises the privilege; the courts themselves are confronted with precedent going in many different directions as to the scope of their authority and the requirements for exercising it.

Judge Wald discussed seven principles to consider regarding enacting of state secrecy privilege legislation.

A study by Tulane law professor Vernon Valentine Palmer finds that campaign donations to Louisiana Supreme Court justices by litigants -- and not the judge's underlying philosophical orientation -- often sway the outcome of cases, with larger donations having greater effects, according to an article by Adam Liptak in the New York Times.

Novelist John Grisham discusses the judicial election process in this interview with Bill Moyers on his new book, The Appeal.

The Brennan Center for Justice offers extensive information on judicial elections here.

Last week E. Duncan Getchell asked the White House to withdraw his nomination to the U.S. Court of Appeals for the Fourth Circuit in the wake of opposition to his nomination on the grounds that he was not on the list of five candidates suggested by Virginia's two current senators. In a commentary on FindLaw, Carl Tobias argues that in light of the failed nomination, "if the President fails to select a consensus nominee expeditiously, the next chief executive will fill this vacancy."

Yesterday, the U.S. Supreme Court resolved a circuit split and held 5-4 that an exception to the Federal Torts Claim Act that grants immunity to "any officer of customs or excise or any other law enforcement officer" applies to "all law enforcement officers." Thus, under the majority opinion in Ali v. Federal Bureau of Prisons, written by Justice Thomas, law enforcement officers who steal prisoners' personal property while engaged in their official duties are immune from lawsuits brought by prison inmates.

The New York Times reported on the decision, and noted the unusual line-up of Justices as well the Court's internal disagreement regarding how to engage in statutory interpretation. The article highlighted Justice Kennedy's dissenting opinion, in which he wrote "the Court’s analysis cannot be squared with the longstanding recognition that a single word must not be read in isolation but instead defined by reference to its statutory context."

The U.S. Supreme Court issued decisions in New York State Board of Education v. Lopez Torres (opinion) and Knight v. Commissioner of Revenue (opinion). The Court upheld New York state's system of selecting state judges (which does not use a primary) and held that investment advisory fees paid by a trust cannot be deducted in full on federal tax returns, according to SCOTUSBlog.

In this video excerpt from ACS' 2007-2008 Supreme Court Preview, Paul Smith, a partner with Jenner & Block, provided a preview of Lopez Torres.

James Sample of the Brennan Center for Justice, who helped represent the plaintiffs, wrote this guest blog post on Lopez Torres in July 2006.

SCOTUSBlog has more coverage of both decisions here.

Today, the Supreme Court held 5-3 that investors may not recover against third parties whose business partners fraudulently misled them. Boston College law professor Kent Greenfield previewed Stoneridge Investment Partners v. Scientific-Atlanta for ACSBlog, calling it "the most important business case to come before the Court in a decade."

In this case, Scientific-Atlanta agreed to help Charter mislead its auditor and the markets by inflating prices (among other things), thus making it appear as if Charter had met its revenue targets. The question before the Court was whether Rule 10b-5 of federal securities law reached Scientific-Atlanta under "scheme" liability. Justice Kennedy held it did not, because the investors "did not rely upon [Scientific-Atlanta's] statements or misrepresentations."

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, January 14

• Virginia v. Moore (06-1082) (lawfulness of search following an arrest that violates state law)
• Preston v. Ferrer (06-1463) (federal preemption of arbitration agreement on talent agent’s fees)                                                   

• U.S. v. Rodriguez (06-1646) (crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction)
• Begay v. U.S. (06-11543) (whether felony drunk-driving is a violent felony for purposes of enhanced sentencing under armed career criminal law)

Wednesday, January 16

• Quanta Computer v. LG Electronics (06-937) (definition of exhaustion of patent rights when licensee sells products containing the patent)
• Meadwestvaco Corp. v. Illinois Department of Revenue (06-1413) (validity of state tax on sale of investment in LexisNexis)

Questions Presented are below the fold.

Tony Mauro takes a lighthearted look at Justice Breyer's tenure as the Supreme Court's junior justice, which upon Justice Alito's taking his seat was 29 days shy of the record.

This morning, the Supreme Court will hear arguments in Crawford v. Marion County Election Board (regarding voter ID requirements) and Kentucky Retirement Systems v. EEOC (on age discrimination in retirement benefits).

ACS has made materials available regarding voter ID requirements. This guest blog post previews the case. Last week, ACS held a press briefing that discussed Indiana's voter ID law and the arguments advanced by each side. (Video) (Video Excerpts). In October, ACS held a panel discussion that explored whether voter ID laws prevent fraud or suppress the vote. SCOTUSBlog notes that Paul Smith, Chair of ACS' Board of Directors, is arguing for the petitioner.

ACSBlog also has a guest blog post on Kentucky Retirement Systems v. EEOC, which explores the application of the Age Discrimination in Employment Act (ADEA) to the design of retirement plans.

ACS recently hosted a press briefing on the Supreme Court cases Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita. The cases concern the constitutionality of an Indiana statute mandating that in-person voters produce government-issued photo identification.

Experts from a variety of perspectives discussed the justification for the Indiana law, the burden that it may place on potential voters, the standard for reviewing the law, and the possible impact of a Court decision on future voting rights challenges. The Supreme Court is scheduled to hear oral argument on these cases on Wednesday, January 9.

Moderated by Tova Wang, Democracy Fellow, The Century Foundation, the panel included Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at New York University School of Law; Bradley A. Smith, Professor of Law, Capital University Law School; FEC Commissioner 2000-2004, Chairman 2004-2005; and Jon M. Greenbaum, Director of the Voting Rights Project, The Lawyers' Committee for Civil Rights Under Law. Streaming video is available here.

The U.S. Supreme Court's grant of two summary decisions and denial of numerous petitions is covered by SCOTUSBlog here.

The two summary decisions involved claims of ineffective assistance of counsel. The first claim regarded an attorney who participated in a proceeding by speaker-phone (held: no current requirement for lawyers to be physically present), and the second claim was dismissed because the individual abandoned the claim.

The Court did not issue any new grants of certiorari.

The U.S. Supreme Court will hear argument in seven cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library. More information on the Term, including briefings, analysis, and videos, may be found here.

Monday, January 7

• Baze v. Rees (constitutionality of lethal injection protocol)
• Dada v. Mukasey (postponement of agreement for alien to voluntarily leave U.S.)

Tuesday, January 8 

• Gonzalez v. U.S. (waiver of right to Article III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead)
• Boulware v. U.S. (taxation on diversion of corporate funds to shareholder of a firm that has no profits)

Wednesday, January 9

• Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita (constitutionality of requiring voters to show a photo ID before they may vote) (Cases consolidated for one hour of argument)
• Kentucky Retirement Systems v. EEOC (scope of age bias in disability benefits packages)

Questions Presented are below the fold.