United States Supreme Court (2009-2010) Session

SCOTUS Spring 2010 Decisions
(2009-2010 Session)

March 2010

Despite High Court Skepticism,
Advocates Defend Privileges Clause Push

Tony Mauro, The National Law Journal

03-10-10 -- It seemed like a good idea at the time.

Across a broad spectrum of scholars and advocacy groups, it was agreed that the case of McDonald v. City of Chicago presented the best -- and possibly the last -- chance to revive the argument that the "privileges or immunities" clause of the 14th Amendment was the soundest way to apply individual rights like the Second Amendment right to bear arms to states and localities. . . . So when Alan Gura rose at the U.S. Supreme Court on March 2 to assert that the clause was a "simpler, more essential" path than the traditional due process clause, he had the wind at his back in the form of liberals and conservatives alike cheering him on from the packed audience. . . . Then reality struck. First, Chief Justice John Roberts Jr., and then Justice Antonin Scalia, brusquely swept the argument aside in favor of the tried and true path of due process. Scalia was derisive in his criticism of Gura, noting that the privileges or immunities argument was the "darling of the professoriate" and hinting that Gura was "bucking for a place on some law school faculty" by advancing it. Even Justice Ruth Bader Ginsburg seemed worried about unforeseen consequences of Gura's approach, asking him what unenumerated rights might be swept in by invoking the privileges or immunities clause.

High Court Finds Lawyers and Their Advice Covered by Bankruptcy Reform Law

Marcia Coyle, The National Law Journal

03-09-10 -- Consumer bankruptcy lawyers are "debt relief agencies" under a 2005 federal bankruptcy law and restrictions on the type of advice they can give clients are constitutional, the U.S. Supreme Court ruled on Monday. . . . In a challenge brought by a Minnesota law firm, the justices unanimously held that the plain language of the Bankruptcy Abuse Prevention and Consumer Protection Act clearly indicates that lawyers function as debt relief agencies when they provide bankruptcy help to consumers covered by the law. The 2005 law was enacted to combat abuse of the bankruptcy system. . . . The Supreme Court case, Milavetz, Gallop & Milavetz v. U.S., actually raised three issues for the justices: . . . Whether lawyers are debt relief agencies. . . . Whether a provision prohibiting lawyers from advising clients to incur more debt "in contemplation" of filing for bankruptcy violates First Amendment free speech guarantees. . . . Whether provisions requiring a debt relief agency to include the sentence "We are a debt relief agency," or one substantially similar, in all advertisements mandate unconstitutional compelled speech. . . . The 8th U.S. Circuit Court of Appeals had ruled in favor of the law firm only on the second issue -- the restriction on lawyers' advice. That ruling prompted a cross-petition for Supreme Court review by the government.

Supreme Court Puts High-Emotion Funeral Protest Case on Docket

Tony Mauro, The National Law Journal

03-09-10 -- Few recent confrontations have stirred as much emotion and debate as the spate of funeral protests conducted at funerals for U.S. soldiers killed in the wars in Iraq and Afghanistan. On Monday, the Supreme Court agreed to take up one of the cases stemming from those protests, a hot-button First Amendment dispute that will be argued in the fall. . . . Members of the Topeka, Kan., Westboro Baptist Church, seeking to spread the word that God is punishing America for its acceptance of homosexuality, have shown up at funerals with anti-gay and anti-war protest signs carrying messages such as "Thank God for Dead Soldiers," and "God Hates You." The protests have triggered lawsuits and legislation nationwide, posing a dilemma for those seeking to stifle the protests without suppressing First Amendment rights.

Chief Justice Recuses in New Wyeth Case

Tony Mauro, The National Law Journal

03-09-10 -- The Supreme Court on Monday announced it was granting review in Bruesewitz v. Wyeth, a test of the scope of the pre-emption provision of the National Childhood Vaccine Injury Act of 1986. It also noted that Chief Justice John Roberts Jr. "took no part" in the consideration or decision of the Court to take the case. . . . Though the justices almost never reveal their reasons for recusal, this one is almost certainly based on the fact that, as of the last financial disclosure form filed by Roberts in May 2009, he owned stock valued at $15,000 or less in Pfizer Inc. Pfizer acquired rival Wyeth in late 2009.

US top court upholds lawyer bankruptcy advice law

At issue: incurring more debt before bankruptcy filing

* Law challenged for violating free-speech rights

* Government lawyers say law only targeted abuses

By James Vicini, Reuter

03-08-10 -- The Supreme Court on Monday unanimously upheld part of the U.S. bankruptcy law that bars attorneys from advising clients to take on more debt while considering a bankruptcy filing. . . . The opinion by Justice Sonia Sotomayor reverses a ruling by a U.S. appeals court that a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was unconstitutionally broad and violated free-speech rights. . . . The provision prohibits bankruptcy professionals like attorneys from advising their clients to incur more debt, such as mortgages or student loans, before filing for creditor protection. . . . The ruling is a victory for the U.S. Justice Department, which defended the provision. It said Congress adopted the law fight abuse of the bankruptcy system encouraged by lawyers.

Supreme Court to Decide Whether Compensation Law Bars Vaccine Suits

By Debra Cassens Weiss, ABA Journal

03-08-10 -- The U.S. Supreme Court has agreed to decide whether a federal law bars a lawsuit that claims a vaccine caused a child’s seizures and developmental delays. . . . The parents of Hannah Bruesewitz claim the girl was injured as a result of a design defect in the diphtheria-tetanus-pertussis vaccine made by Wyeth, according to stories in Reuters, the Associated Press, the Wall Street Journal (sub. req.). and SCOTUSblog.

Supreme Court to Decide First Amendment Rights of Funeral Picketers

By Debra Cassens Weiss, ABA Journal

03-08-10 -- The U.S. Supreme Court has agreed to decide whether anti-gay picketers at military funerals are protected by the First Amendment. . . . The father of a Marine killed in Iraq is seeking to reinstate a $5 million judgment against the picketers, according to SCOTUSblog and the Associated Press. . . . The picketers, members of a Kansas church, show up at the funerals to publicize their belief that military deaths are punishment for tolerance of homosexuality. They carry signs with slogans such as “God Hates Fags” and “Priests Rape Boys.” . . .  t the funeral for Lance Cpl. Matthew Snyder, picketers carried signs that read, "Thank God for dead soldiers” and “Semper fi fags." A federal jury in Baltimore had awarded Snyder’s father $2.9 million in compensatory damages and $8 million in punitive damages. The trial judge reduced the total award to $5 million, but the Richmond, Va.-based 4th U.S. Circuit Court of appeals overturned the verdict on First Amendment grounds.

Supreme Court Keeps $18 Million Internet Copyright Settlement Alive

Marcia Coyle, The National Law Journal

03-03-10 -- An $18 million settlement of a copyright infringement suit between Internet publishers and freelance writers is back on track because of a U.S. Supreme Court ruling on Tuesday. . . . .In Reed Elsevier v. Muchnick, the justices, in an 8-0 decision, held that the 2nd U.S. Circuit Court of Appeals was wrong when it ruled in 2008 that the district court lacked jurisdiction to certify the class or the settlement in the litigation. Justice Sonia Sotomayor, a former 2nd Circuit judge, did not participate in the high court case. . . . The 2005 settlement followed the Supreme Court's decision in 2001 in New York Times Co. v. Tasini, in which the justices held that the federal Copyright Act does not permit publishers to reproduce freelance works electronically without specific permission from the authors. After Tasini, four infringement class actions were consolidated in the Southern District of New York. The district court subsequently certified the class and settlement. Ten authors objected to certification on the grounds that it was unfair.

High Court Justices Shoot Down 'Privileges'
Argument in Gun Case

Tony Mauro, The National Law Journal

03-03-10 -- The U.S. Supreme Court will almost certainly extend the scope of the Second Amendment right to bear arms to limit state and federal regulation of firearms, based on oral arguments in McDonald v. City of Chicago on Tuesday. . . . But comments from the justices made it clear they want to do it the old-fashioned way -- through the 14th Amendment's due process clause, rather than via the same amendment's "privileges or immunities" clause, which had been advanced as a better way to bolster a range of rights including economic rights. Several justices also indicated that, as with other individual rights, states and cities will be able to impose some regulations on firearms.

In Chicago Gun Case, Supreme Court Sounds Note of Caution

Tony Mauro, The National Law Journal

03-02-10 -- When oral argument in the crucial Second Amendment case of McDonald v. Chicago ended at the Supreme Court Tuesday morning, one thing appeared clear: the justices are not yet ready to open what seems to them to be a can of worms by invoking the "privileges or immunities" clause of the 14th Amendment as the way to apply the right to bear arms to states and localities. The more traditional route of the "due process" clause seems almost certain to be Court's chosen path. . . . Alan Gura, who was arguing for the "privileges or immunities" route, ran into skepticism almost from the moment he began, when Chief Justice John Roberts Jr. said Gura had a "heavy burden" because his approach entailed striking down the Slaughterhouse cases of 1873.

Supreme Court Focuses on Jury Impartiality in Enron Case

Tony Mauro, The National Law Journal

03-02-10 -- The U.S. Supreme Court on Monday heard arguments in the third of a series of challenges to the "honest services" fraud statute, this time in the context of the prosecution of former Enron Corp. executive Jeffrey Skilling. But most of the justices' attention focused instead on the other major issue in Skilling's case: whether the local jury pool in Houston was so poisoned by rage against Enron that it was impossible to pick an impartial jury -- even when potential jurors said they could be fair. . . . . Although several justices voiced concern about the impartiality of certain jurors in the 2006 trial, others seemed equally worried about second-guessing trial judges who have long been entrusted with screening out biased jurors during voir dire. . . . . "I'm worried about a fair trial in this instance," said Justice Stephen Breyer at one point. But at another point he said he was concerned that, if the Supreme Court promulgates a rule defining when local bias should automatically trigger a change of venue for a trial, "we get into the business of running the trial court's trials." Picking jurors will become harder and more protracted, Breyer fretted.

Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline

Marcia Coyle, The National Law Journal

03-02-10 -- The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be to warrant stopping the clock on the time for filing a prisoner's federal habeas petition. . . . . In Holland v. Florida, the justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock. . . . . The issues stem from the death penalty conviction of Albert Holland in 1991. After his conviction became final in 2001, Holland had 365 days to file a federal habeas petition. The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations. That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction motion was denied -- leaving him only 14 days in which to file the federal petition. Collins ultimately missed that deadline.

A Supreme Court of 1 Justice -- Sotomayor -- Rules Against Former 'D.C. Madam' Lawyer

Tony Mauro, The National Law Journal

03-02-10 -- Washington, D.C., lawyer Montgomery Blair Sibley, one-time attorney for the "D.C. Madam," has been a continuing gadfly at the Supreme Court, challenging it on a range of issues and then suing the Court itself when it does not rule in his favor or does not take up his case. His suits cause recusal problems for the Court, because the justices tend to take themselves out of the case when they are named targets. . . . .That was the problem Monday when the Court disposed of Sibley v. Alito et al., with the other respondents being the other justices he claims improperly refused to hear an earlier case. That list included former Justice David Souter, but not the current Justice Sonia Sotomayor. As a result all justices except Sotomayor recused, depriving the Court of a quorum.

Justices Reinstate Settlement With Writers

By Adam Liptak, New York Times

03-02-10 -- The Supreme Court on Tuesday resurrected a possible settlement in a class-action lawsuit brought by freelance writers who said that newspapers and magazines had committed copyright infringement by making their contributions available on electronic databases. . . . .The proposed settlement was prompted by a 2001 decision from the Supreme Court in favor of six freelance authors claiming copyright infringement in The New York Times Company v. Tasini. After the Tasini decision, many freelance works were removed from online databases. Most publishers now require freelance writers to sign contracts granting both print and online rights. . . . .After the decision, the authors, publishers and database companies who were parties to several class-action lawsuits negotiated a global settlement that would pay the plaintiffs up to $18 million.

Supreme Court Dismisses Uighurs' Appeal

By Jess Bravin, Wall Street Journal

03-01-10 -- The Supreme Court declined to hear a case brought by Uighurs held by the U.S. at Guantanamo Bay, Cuba, who are seeking to be resettled in the U.S. . . . The high court returned the case to lower courts, noting the government's claim that all the Uighur detainees have received at least one offer of resettlement in another country. . . . The Supreme Court's order also vacated a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that found federal courts have no authority to force the federal government to resettle detainees in the U.S. That appellate ruling overturned a federal district judge's finding that the U.S. was obligated to admit the Uighurs to the U.S. rather than jail them at Guantanamo pending resettlement. . . . By vacating the ruling, the Supreme Court left room for another test of the issue, which could be relevant to dozens of Guantanamo detainees who are seeking release but have no acceptable third country in which to resettle. . . . Sabin Willett, a lawyer representing the Uighurs, said there were conditions on the resettlement offers that made them unacceptable to his clients.

February 2010

'Miranda' Dealt One-Two Punch by High Court

Tony Mauro, The National Law Journal

02-25-10 -- It has not been a good week for the famed Miranda warning at the hands of the Supreme Court. . . . In decisions issued on Tuesday and Wednesday, the Court ruled that confessions should be admitted at trial even when police interviewed suspects in circumstances that lower courts viewed as Miranda violations. . . . The Court on Wednesday issued Maryland v. Shatzer (pdf), establishing new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda's right to remain silent. . . . The Maryland case came down a day after the justices decided Florida v. Powell (pdf), in which a 7-2 majority Court said that Florida's alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.

Supreme Court Rules in Case Involving 'Demeanor-Based' Rejection of Juror

John Council, Texas Lawyer

02-25-10 -- On Monday, the U.S. Supreme Court reversed a 5th U.S. Circuit Court of Appeals decision regarding the "demeanor-based" rejection of a potential juror in a death penalty case. Thaler v. Haynes involves a defense objection under Batson v. Kentucky (pdf) (1986) to the prosecution's peremptory strike of a potential juror; Batson forbids striking potential jurors from a panel solely based on race. . . . The prosecution explained that it had struck the potential juror because she appeared not to be serious during questioning and her "body language" belied her "true feeling" about the death penalty, according to the opinion. The state trial court judge upheld the strike because the prosecution provided a race-neutral reason, but that judge did not observe the potential juror's behavior. . . . The 5th Circuit in its Batson analysis ruled that it couldn't defer to the state trial court's decision because the judge didn't see the potential juror's demeanor. The 5th Circuit reversed a federal district court decision that had denied habeas relief, and it ordered a new trial.

Chief Justice 'Startled' by Government Errors in Veterans Cases

Marcia Coyle, The National Law Journal

02-24-10 -- When he was in private practice at Hogan & Hartson, Chief Justice John Roberts Jr. did not handle veterans' benefits claims. So, he understandably found "startling" information with which lawyers for veterans are only too familiar: In litigating with veterans, the government more often than not takes a position that is substantially unjustified. . . . In oral arguments Monday in Astrue v. Ratliff, an attorney fee case under the Equal Access to Justice Act, James Leach of Rapid City, S.D., told the Court that 42 percent of Social Security cases result in an EAJA attorney fee award. . . . "If it's 42 percent, that's quite a high number of cases in which the government's position is found substantially -- not substantially justified as well as legally erroneous," Leach said. "In veterans cases, it's even worse." . . . The U.S. Court of Appeals for Veterans Claims, which reports the number of EAJA awards granted annually, reported that for 2008 and 2009, 70 percent resulted in fee awards, Leach told the justices.

Chicago May Face Uphill Fight in Firefighters Case at Supreme Court

Marcia Coyle, The National Law Journal

02-24-10 -- The Supreme Court on Monday seemed supportive of arguments by Chicago minority firefighters that a new 300-day period for filing discrimination charges opened each time the city used scores from a discriminatory examination to hire someone. . . . John Payton, director-counsel and president of the NAACP Legal Defense and Educational Fund, told the justices that Chicago on 11 occasions used unlawful cutoff scores on a qualifying exam to make hiring decisions. . . . "There's a violation [of Title VII of the Civil Rights Act] every time there's a use," he argued. . . . Lewis v. City of Chicago stems from a 1995 entry-level exam for firefighter positions. Based on test scores, the city divided 26,000 applicants into three categories: well qualified, qualified and not qualified. Although 37 percent of the applicants were African-American, only 11.5 percent of African-Americans were found to be "well qualified." The city drew solely from the "well-qualified" pool when hiring 10 classes of firefighters between 1996 and 2001.

Supreme Court Sets 14-Day Rule for Questioning of Suspect After Lawyer Request

By Debra Cassens Weiss, ABA Journal

02-24-10 -- The U.S. Supreme Court has ruled that a “break in custody” permits police to question a suspect who waived his Miranda rights more than two years after initially requesting a lawyer. . . . A break in custody of more than two weeks is sufficient for new questioning without a lawyer, according to the opinion (PDF) by Justice Antonin Scalia. All of the justices agreed with the ruling for the state, although two—Justices John Paul Stevens and Clarence Thomas—did not agree with the 14-day rule. . . . “While it is certainly unusual for this court to set forth precise time limits governing police action, it is not unheard of,” Scalia wrote. A 14-day period “provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody."

Supreme Court Establishes 'Nerve Center' Test for Corporate Jurisdiction

Marcia Coyle, The National Law Journal

02-24-10 -- Using simplicity and practicality as its touchstones, a unanimous U.S. Supreme Court on Tuesday held that a corporation's "principal place of business" for purposes of federal jurisdiction is its "nerve center," typically where its headquarters is located. . . . The Court, in an opinion by Justice Stephen Breyer, resolved a long-simmering debate among the federal circuits, which, for the past 51 years, have used a hodgepodge of tests to answer the jurisdictional question. . . . The ruling in Hertz Corp. v. Friend (pdf) will help to determine the battlefields on which class action and other litigation involving multistate corporations will be fought -- what corporations perceive to be the friendlier forum of the federal courts or state courts seen as more sympathetic to plaintiffs.

Justices Seem Receptive to First Amendment Challenge to Anti-Terror Law

Apart from Scalia, support for the government's position seemed weak

Tony Mauro, The National Law Journal

02-24-10 -- The U.S. Supreme Court appeared troubled on Tuesday by the broad sweep of a federal law that makes it a crime to give "material support" and "expert advice" to designated terrorist groups. . . . The law was challenged as a vague or overbroad violation of First Amendment rights. But what seemed to bother the justices most was the assertion by U.S. Solicitor General Elena Kagan that the law would bar a lawyer from writing an amicus curiae brief on behalf of such a group in U.S. courts. . . . Kagan defended the law as a "vital weapon in this nation's continuing struggle against international terrorism." When Justice Ruth Bader Ginsburg told her that "I am still having trouble with the line" between what kind of communications the law allows and forbids, Kagan said mere "discussion of ideas" is not barred. But what is prohibited, Kagan said, is "the provision of actual support -- services to the organization that the organization can use in its activities, both legal and illegal."

HELP KEEP VICTIMS-OF-LAW ON THE WEB SHOP OUR ADVERTISERS OR CONTRIBUTE NOW

Court upholds police warning of suspect rights

James Vicini, Reuters

02-23-10 -- The Supreme Court ruled on Tuesday that police officers adequately warned a criminal suspect of his legal rights when they told him he had the right to speak to a lawyer before answering any questions. . . . By a 7-2 vote, the high court ruled the warning that police officers in Tampa, Florida gave to suspect Kevin Powell in 2004 sufficiently informed him that he could have an attorney's assistance during any later questioning. . . . One officer read Powell a statement that informed him, "You have the right to talk to a lawyer before answering any of our questions." Powell later was told he could invoke his rights "at any time you want during this interview." . . . Powell was convicted of illegally possessing a firearm. . . . The Florida Supreme Court overturned his conviction and ruled the warning was misleading because it suggested Powell could talk to an attorney only before the police started to question him and did not adequately convey that the lawyer could be present through the interrogation. . . . The U.S. Supreme Court, in a majority opinion written by Justice Ruth Bader Ginsburg, disagreed. She said the warning reasonably conveyed to Powell his right to have an attorney present at all times.

High Court Justices May Favor Clients Over Lawyers in Fee Shift Dispute

Marcia Coyle, The National Law Journal

02-23-10 -- A majority of the Supreme Court appeared sympathetic on Monday to the Obama administration's arguments that attorney fee awards under a key fee shifting statute belong to the clients, not the attorneys who earn them, and the awards can be offset to pay debts owed to the government. . . . In Astrue v. Ratliff, Assistant to the Solicitor General Anthony Yang and James Leach of Rapid City, S.D., sparred over what each claimed was the "plain meaning" of the Equal Access to Justice Act. The act awards attorney fees and expenses to "a prevailing party other than the United States" in any civil action against the government unless the court finds the government's position was "substantially justified" or an award would be unjust. . . . The government is urging the high court to overturn a ruling by the 8th U.S. Circuit Court of Appeals (pdf) which, counter to most courts that have ruled on the issue, held that the fee award belongs to the prevailing party's attorney and cannot be used to offset the client's government debts.

Courtroom Murder Shadows Chicago Gun Suit at Supreme Court

1983 shooting of judge, lawyer led to gun ban now before the justices

Tony Mauro, The National Law Journal

02-23-10 -- The landmark 2008 U.S. Supreme Court decision in D.C. v. Heller, declaring an individual right to bear arms under the Second Amendment, may soon be eclipsed by its sequel: McDonald v. City of Chicago, set for argument March 2. . . . Heller limited the right to the federal enclave of the District of Columbia. McDonald may be the case that makes the right real nationwide, by applying or incorporating the right as a shield against state and local restrictions on firearms as well. The key question before the Court will be which part of the 14th Amendment should be invoked in restricting the states: the due process clause, the privileges or immunities clause or none of the above. . . . A major segment of the case began, however, not with lofty constitutional quarrels but the long-ago murder of a lawyer and judge in a Chicago courtroom. It was Oct. 21, 1983, when wheelchair-bound Hutchie Moore, using a handgun he had hidden under a blanket, shot his ex-wife's divorce lawyer, James Piszczor, as well as the presiding judge in the Cook County Circuit Court, Henry Gentile, on the 16th floor of the Daley Center.

Supreme Court Rules Judge Need Not See Juror Demeanor to Rule on Batson Claim

By Debra Cassens Weiss, ABA Journal

02-22-10 -- The U.S. Supreme Court has ruled a trial judge does not need to observe a potential juror to decide a prosecutor’s claim that he used a peremptory strike to dismiss the woman because of her demeanor. . . . The defense had argued the prosecutor dismissed the potential juror because of her race. The opinion (PDF) in Thaler v. Haynes is one of two summary opinions issued today, bringing to eleven the number of summary decisions issued this term, SCOTUSblog reports. . . . Two judges presided at different stages of the case, the Supreme Court said in the per curiam decision. The prosecutor claimed he had dismissed the juror because her demeanor had been “somewhat humorous” and not “serious” and her “body language” had belied her “true feeling.” The second judge in the case rejected the defense lawyer’s claim that the true motive for the dismissal was because the potential juror was African-American.

Supreme Court returns, firearms regulation and detainees on agenda

By Robert Barnes, Washington Post Staff Writer

02-22-10 -- The Supreme Court returns from its midterm break Monday morning, one controversial decision behind it and the potential for more ahead. . . . The justices already might have defined this term with their January ruling that declared unconstitutional decades-old restrictions on the way corporations and unions may spend their money in the electoral process. In Citizens United v. Federal Election Commission, the court ruled 5 to 4 that keeping corporations from using their profits to support or oppose candidates violated the First Amendment. . . . The decision is controversial enough that Democrats in Congress already are preparing legislation that would blunt the effects of the change. Polls show that Americans overwhelmingly disagree with the decision, and President Obama denounced it and called for a legislative response in his State of the Union Address.

U.S. Supreme Court to hear terrorism case

By Harriet Robbins Ost, United Press International

02-21-10 -- The U.S. Supreme Court this week hears arguments on a provision of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- or as it is more familiarly known, the Patriot Act. . . . The Patriot Act was signed into law Oct. 26, 2001, in the wake of the Sept. 11 terrorist attacks. The act, read in conjunction with other federal anti-terrorism laws, presents what some consider a chilling effect on constitutional rights, including the First Amendment guarantees of the freedoms of speech and association. . . . The Supreme Court will decide whether the parts of the law that make it a crime to give "material support or resources" to government-designated foreign terrorist organizations are unconstitutional.

Is There Meaning in the Supreme Court’s Rate of Summary Reversals?

By Debra Cassens Weiss, ABA Journal

02-17-10 -- Court watchers are noting a higher rate of summary reversals by the U.S. Supreme Court and wondering about the motive. . . . The U.S. Supreme Court has already issued nine summary reversals this term, the same number issued for all of the previous term, according to a count by SCOTUSblog. The number this year is even more dramatic when compared to the 2007 term, when there were six summary reversals in total, and the 2006 term, when there were eight. . . . In a summary reversal, the Supreme Court grants cert and reverses the lower court, without briefing or argument, usually in an unsigned opinion, the blog explains. Summary reversals tend to be used to correct an error in a particular case, rather than to resolve circuit conflicts or establish general legal principles.

Poll: Large majority opposes Supreme Court's decision on campaign financing

By Dan Eggen, Washington Post Staff Writer

02-17-10 -- Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll. . . . Eight in 10 poll respondents say they oppose the high court's Jan. 21 decision to allow unfettered corporate political spending, with 65 percent "strongly" opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits. . . . The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent). . . . The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court's decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.

Supreme Court Orders New Briefing in Uighur Case

Tony Mauro, The National Law Journal

02-16-10 -- The Supreme Court issued an order (pdf) Friday in Kiyemba v. Obama, asking both sides to address, in effect, whether the case involving Uighurs detained at Guantanamo Bay should be dismissed. . . . The case, which was set for argument March 23, is an important test of whether a federal judge can, as part of his habeas jurisdiction, order detainees brought into the United States for release, as Judge Ricardo Urbina did in 2008. The Obama administration, like the Bush administration before it, argued that only the political branches have the power to determine which aliens can be brought into the United States. The U.S. Court of Appeals for the D.C. Circuit agreed. . . . At the same time, the Obama administration sought,and has been successful, in finding new homes outside the United States for the seven Uighurs left at the base, who have been determined not to be enemy combatants. As New York Times columnist Linda Greenhouse wrote online Friday, the Court and the administration may be eager to avoid another detainee-related test of executive power.

January 2010

Specter Files Supreme Court Brief in Torture Case

Tony Mauro, The National Law Journal

01-28-10 -- Sen. Arlen Specter, D-Pa., filed a brief on behalf of himself and two other members of Congress on Wednesday in a closely watched human rights case testing whether foreign torture victims can seek damages in U.S. courts. The case, which will be argued at the Supreme Court on March 3, is Samantar v. Yousuf, a dispute over the meaning of the Torture Victim Protection Act of 1991, which Specter sponsored. . . . In passing the law, Specter asserted in the brief, Congress intended "to provide redress for egregious acts that infringe human rights and are an affront to human dignity." Joining Specter on the brief were Sen. Russ Feingold, D-Wis., and Rep. Sheila Jackson Lee, D-Texas. . . . Bashe Abdi Yousuf, a Somali businessman who was tortured and imprisoned under the Siad Barre regime in Somalia in the 1980s, invoked the law in suing Mohamed Samantar, former defense minister and prime minister of Somalia. Samantar fled Somalia in the early 1990s and now lives in Virginia.

Supreme Court Ends Confrontation Clause Case, Non-Orthogonally

Tony Mauro, The National Law Journal

01-26-10 -- During oral arguments Jan. 11 in Briscoe v. Virginia, Supreme Court Justice Antonin Scalia spent considerable time defending the precedent at issue, Melendez-Diaz v. Massachusetts, in which he wrote the majority opinion (pdf). That was the Confrontation Clause decision finding that forensic evidence needed to be presented in person, not by affidavit, so it could be tested in cross-examination. . . . Melendez-Diaz was decided just last June, so some wondered why the Court would review such a similar case. All eyes were on new Justice Sonia Sotomayor to see if she would have a different take on the issue. . . . On Monday, the Court decided to leave well enough alone and leave the precedent untouched, suggesting that Sotomayor may not have had anything different to say about the issue than her predecessor David Souter, who was in the 5-4 majority in Melendez-Diaz. The Court sent the Briscoe case back to Virginia courts for reassessment under the Melendez-Diaz case, which it could have done without hearing arguments in the first place.

NRA Granted Argument Time in Second Amendment Case at Supreme Court

Tony Mauro, The National Law Journal

01-26-10 -- The Supreme Court on Monday granted a motion by the National Rifle Association for argument time March 2, when the justices will consider whether the Second Amendment individual right to bear arms applies against state and local restrictions on firearms. The NRA will take an unspecified number of minutes from the plaintiffs who are challenging Chicago's gun restrictions, and who are represented by Alan Gura of Gura & Possessky of Washington, D.C., and Virginia. The case is McDonald v. City of Chicago. . . . Adding the NRA to the list of those arguing may seem unremarkable, but in fact, the NRA has not been the pivotal player in the recent Supreme Court litigation over the Second Amendment. That title goes to Gura, something of an upstart, who took the landmark D.C. v. Heller case to the high court in 2007. As we reported at the time, there were old rivalries and no love lost between Gura and NRA lawyers, whom Gura felt were obstacles, not allies in the litigation.

Critics, Dissenters Predict Wave of Corporate Money After Campaign Finance Ruing

Tony Mauro, The National Law Journal

01-22-10 -- In a dramatic upheaval that sharply divided the U.S. Supreme Court, a 5-4 majority ruled Thursday that under the First Amendment Congress may not bar corporations and unions from using their own money to make independent expenditures to support or oppose candidates for office. . . . The Court in Citizens United v. Federal Election Commission (pdf) ruled that the ban on direct corporate expenditures before elections, with criminal penalties, is a powerful chill on legitimate political speech. "Its purpose and effect are to silence entities whose voices the government deems to be suspect," wrote Justice Anthony Kennedy for the majority. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." . . . By a separate 8-1 vote, however, the Court upheld disclosure requirements imposed on corporations to give the public information about the sources of the spending.

You can access the ruling at this link.

Judge Stevens Decries Court's Corporate Turn

89-year-old gives impassioned opinion but sounds weary

Kevin Spak, Newser -

01-22-10 -- Justice John Paul Stevens railed against the Supreme Court’s ruling overturning decades of campaign finance reform, invoking the names of such revered justices as Sandra Day O’Connor, Thurgood Marshall, and Byron White. In giving the minority opinion yesterday, Stevens spoke for 20 minutes, twice as long as Anthony Kennedy did for the majority, and spoke with considerably "more passion—and more weariness," writes Joan Biskupic at USA Today.

Supreme Court Strikes Down Bans on Corporate Spending in Elections

By Tony Mauro, The Blog of the Legal Times 

01-21-10 -- In a dramatic special session this morning, the U.S. Supreme Court by a 5-4 vote said that congressional restrictions on independent expenditures by corporations in federal elections violate the First Amendment. . . . Justice Anthony Kennedy announced the opinion in Citizens United v. Federal Election Commission, declaring that the ban on corporate expenditure “uses censorship to control thought” and amounts to a chill on “core political speech.” Click here for the opinion. . . . For more than 20 minutes, Justice John Paul Stevens read from his dissent, describing the majority opinion as “a radical change in the law.” Stevens said that long tradition and common sense justify treating corporations differently from individuals under the First Amendment. Stevens spoke haltingly and with emotion, summarizing his 90-page dissent. . . . Joining Stevens in dissent were Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Supreme Court Announces Special Sitting, Issues 3 Rulings

Tony Mauro, The National Law Journal

01-21-10 -- The long wait for the Supreme Court's ruling in Citizens United v. Federal Election Commission may soon be over. At the end of oral arguments Wednesday morning, the marshal of the Court announced the justices would return to the bench at 10 a.m. today -- a rare if not unprecedented Thursday session for the Court. Unless the Court really wants to pull a switcheroo on an anxious nation, the session will almost certainly be the platform for announcing the Citizens United decision on campaign finance regulation, which was argued in a special session Sept. 9 and appears to be the only pending case that would warrant such special arrangements. . . . Now that a Thursday session is planned, it's fair to ask: why not wait until Monday, when the Court was already scheduled to sit? It will be the third Monday of its argument cycle, when it will not be hearing arguments. One answer may point to possible multiple readings from the bench today. On third Mondays, when no arguments are scheduled, justices sometimes do not show up, having already packed their bags and headed off for travel during the period before the next session. If one or more of those justices had planned to read a dissent from the bench, they might have lobbied for a special sitting today before they left town. Justice John Paul Stevens, for example, may have already made plans to head to his Florida condo where he often spends his off-bench days. So Stevens may have a dissent to read -- or, perhaps, a majority opinion.

High Court Justices Underscore Importance of Open Criminal Trials

Tony Mauro, The National Law Journal

01-20-10 -- The U.S. Supreme Court on Tuesday strengthened the right to public criminal trials, ruling in a Georgia case that jury voir dire proceedings should be open to defendants and to the public. . . . In an unsigned 7-2 ruling in Presley v. Georgia (pdf), the high court also said that a trial judge has a duty to seek alternatives that will preserve openness even when, for example, it appears that there are so many prospective jurors in the courtroom that there are not enough seats for the public. . . . "Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," the Court majority stated. "The public has the right to be present whether or not any party has asserted the right."

Jurors' Risque Gifts to Judge Help Scuttle 11th Circuit Ruling Before High Court

Alyson M. Palmer, Fulton County Daily Report

01-20-10 -- The nation's highest court on Tuesday summarily granted victories to two Georgia criminal defendants, in both cases saying that the law was so clear that they didn't need to entertain oral argument or the usual full round of briefs. . . . The cases were unrelated but both very unusual. In one case, jurors in a Cobb County, Ga., death penalty case are said to have given a chocolate rendering of male genitalia to the trial judge. But the other case, in which a DeKalb County, Ga., drug defendant had complained that the public was excluded from jury selection during his trial, will probably have the most lasting impact on the law. . . . In the DeKalb case, Presley v. Georgia, the Court ruled 7-2 (pdf) that judges must consider alternatives to closing a courtroom even if no party makes any suggestions for how the judge can deal with whatever problem makes the judge consider closing the court in the first place. The high court majority said the Georgia Supreme Court had disregarded the U.S. Supreme Court's explicit instructions on that point.

High court ruling in Mumia case

By Michael Hinkelman, Philadelphia Daily News

01-20-10 -- The U.S. Supreme Court yesterday tossed out a 2008 ruling by the U.S. Third Circuit Court of Appeals that death-row inmate Mumia Abu-Jamal deserved a new sentencing hearing. . . . Abu-Jamal, 55, has been on Pennsylvania's death row since his 1982 conviction in the killing of Philadelphia Police Officer Daniel Faulkner on Dec. 9, 1981. . . . The high court said in a one-paragraph order that they were sending the case back to the appeals court "for further consideration" in light of a ruling last week in an Ohio death-penalty case. . . . That case - which involved convicted murderer and neo-Nazi Frank Spisak - raised similar sentencing issues that were cited by the appeals court in the Abu-Jamal case in 2008.

Supreme Court Ducks Asian Carp Issue, Rules on Open Courts

Tony Mauro, The National Law Journal

01-19-10 -- The Supreme Court on Tuesday morning issued no signed opinions and granted review in no new cases, but still made news on issues ranging from the Great Lakes dispute over the invasion of Asian carp to the requirement that jury voir dire proceedings be open to the public. . . . The Court also kept alive the long-running appeal of Mumia Abu-Jamal, the Philadelphia man convicted of killing a police officer. The Court sent his case back to the 3rd U.S. Circuit Court of Appeals, instructing it to consider his appeal in light of the high court's recent ruling in Smith v. Spisak. In this story last fall, colleague Shannon Duffy from The Legal Intelligencer in Philadelphia explained the parallels between the Abu-Jamal and Spisak cases.

Supreme Court Takes Up Case on Petition-Signer Privacy

Tony Mauro, The National Law Journal

01-19-10 -- For the second time in a week, the Supreme Court on Friday grappled with the Internet-age clash between public disclosure and privacy in the context of anti-gay rights ballot initiatives. . . . The Court on Friday afternoon announced it was granting review in five new cases, including Doe#1 v. Reed, a case from Washington state asking whether that state's public records disclosure law violates the privacy rights of voters who signed petitions to launch a referendum aimed at overturning a law allowing same-sex domestic partnerships. Sponsors of the ballot initiative went to court to keep the names from being posted on the Internet, claiming that would violate their right to anonymous speech and would subject signers to threats and harassment.

Something's Fishy at the High Court

Tony Mauro, The National Law Journal

01-19-10 -- When the litigation over the invasion of Asian carp into the Great Lakes burst into the news this month, you may have wondered: How did it get to the Supreme Court so fast? . . . The answer is that Michigan, in its effort to keep the carp from overtaking Lake Michigan, used as its vehicle three original-jurisdiction Supreme Court cases dating back to 1922. . . . In that year, states surrounding the Great Lakes sued the state of Illinois and the Metropolitan Sanitary District of Chicago to halt the diversion of Great Lakes water by Chicago to flush its sewage into the Mississippi River.

Supreme Court Extends Stay That Blocked Broadcast of Proposition 8 Trial

Majority of justices accept claim that broadcast could result in witness harassment and intimidation

Tony Mauro, The National Law Journal

01-14-10 -- By a 5-4 vote, the Supreme Court on Wednesday stayed or halted plans to transmit the video and audio of the high-profile federal trial on California's ban on same-sex marriage to other courthouses around the country. . . . The ruling (pdf) effectively means that the San Francisco trial, which began on Monday, is likely to end before any further consideration of the courthouse dissemination plan -- or any wider broadcast by posting the trial video on the Internet -- can take place. The ruling extends a temporary stay it granted on Monday just an hour before the trial began. . . . U.S. District Judge Vaughn Walker, who is presiding over the trial on the validity of Proposition 8, which banned same-sex marriage in California in 2008, had planned to post the video on the court's Web site and on YouTube. In recent days the plan was seemingly scaled back to allow only for broadcast to courthouses in San Francisco, Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y., to accommodate wide public interest in the trial. Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, who in December launched a pilot program to experiment with broadcast access -- a program that enabled Walker to proceed with his plans -- said that because of technical issues, the broader plan for posting the trial proceedings on the Internet was not "ripe for approval."

High Court Struggles With Child Custody, Sex Offender Cases

Marcia Coyle, The National Law Journal

01-13-10 -- In two starkly different challenges Tuesday, the U.S. Supreme Court vigorously questioned the federal government's power to detain sexually dangerous prisoners beyond their federal prison sentences and appeared sympathetic to arguments that a treaty requires a divorced American mother to return her child to Chile. . . . In U.S. v. Comstock, Solicitor General Elena Kagan defended the section in the 2006 Adam Walsh Child Protection and Safety Act that authorizes the federal government to detain by civil commitment any "sexually dangerous" federal prisoner even after he or she has served the sentence for the underlying crime. . . . The 4th U.S. Circuit Court of Appeals last January ruled in the case of five prisoners that neither the Constitution's commerce clause nor the necessary and proper clause authorized Congress to enact the civil-commitment provision. The provision, it said, also interfered with a power reserved to the states.

Justices Hear Case on Releasing Sex Offenders

The Associated Press, Law.com

01-12-10 -- The idea of the federal government being able to indefinitely commit people considered "sexually dangerous" after their federal prison terms are complete seemed attractive to some Supreme Court justices. . . . Lower courts have said the federal government cannot do this. But in arguments before the high court Tuesday, Solicitor General Elena Kagan said the government has the responsibility to ensure that sexual predators are not turned back onto the streets. . . . The federal government's responsibility and power extends to ensuring "those people who have been in custody are released responsibly," Kagan said. . . . Federal public defender G. Alan DuBois said this practice would overstep official bounds when it comes to sentencing people for federal crimes. "Civil commitment has never been part of the criminal justice system," he said.

High Court Justices Grill Both Sides in Confrontation Clause Case

Tony Mauro, The National Law Journal

01-12-10 -- The U.S. Supreme Court's decision last year in Melendez-Diaz v. Massachusetts caused an uproar among prosecutors by interpreting the Constitution to require that forensic and other evidence be presented mainly in person, not by affidavit. . . . On Monday, the Court heard arguments in a case that could be a vehicle for reversing that 5-4 decision (pdf) less than a year after its issuance. But that outcome appears far from certain. . . . Justice Sonia Sotomayor, who was not on the Court for the Melendez-Diaz case, sent out mixed signals on whether she would provide the vote needed for reversal. (Her predecessor David Souter was in the majority.) As has become her custom, Sotomayor actively questioned both sides during Monday's argument in Briscoe v. Virginia.

Supreme Court Drops Undecided Prosecutorial Immunity Case After Parties Settle

Tony Mauro, The National Law Journal

01-05-10 -- The U.S. Supreme Court announced late Monday that it had dismissed an important pending case over prosecutorial immunity after being alerted that the dispute had been settled. The action stops in its tracks a case that could have produced a landmark decision that many believed would have reined in the longstanding tradition that prosecutors cannot be held liable for their actions as prosecutors. . . . The case, Pottawattamie County v. McGhee and Harrington, was brought by Curtis McGhee Jr. and Terry Harrington, who had been found guilty in the 1977 murder of John Schweer, a retired police officer in Council Bluffs, Iowa. The two, who spent 25 years in prison before being freed in 2003, sued Iowa prosecutors for violating their civil rights by falsifying evidence used against them before arrest and at trial. They were released after being able to document the actions taken by prosecutors to doctor evidence and influence testimony to point the finger at them, even though there was another suspect.

SEND NEWS RELEASES

VIA EMAIL

 

Victims-of-Law Open Discussion Click to join victimsoflaw_discuss