United States Supreme Court (Spring 2007) News & Views

Click for U.S. Supreme Court in History & Today
by: Nancy Salvato

SCOTUS News & Views Spring 2007
(Fall 2006 Session)

August 2007

Fair Pay, the Right Way

The House overcorrects a Supreme Court decision.

Washington Post Editorial

8-15-07 -- BEFORE LEAVING for its August recess, the House of Representatives approved legislation to blunt the impact of a Supreme Court ruling that severely constricted the opportunity for workers to seek redress in court for pay discrimination. The legislation is needed, but the House included provisions that could unnecessarily burden employers. These problems should be addressed in the Senate, where a companion bill has been filed. . . . The legislation is a reaction to the Supreme Court's decision in Ledbetter v. Goodyear, in which it ruled that workers must file pay discrimination grievances with the Equal Employment Opportunity Commission within 180 days of an employer's discriminatory pay decision. The ruling, while a defensible reading of the law, is impractical. How is a worker to know -- essentially at the moment her employer makes a pay decision -- that she's unfairly being paid less than her male counterparts? Employers jealously guard pay information, and credible specifics about who's being paid what are rarely the subject of lunchroom chit-chat.

The Supreme Court Wreaks Havoc in the
Lower Federal Courts--Again
By Michael C. Dorf

8-13-07 -- Here's a pop quiz. Can you name the most important Supreme Court decision of the last Term? Was it Gonzales v. Carhart, the ruling upholding the federal Partial Birth Abortion Act? Or how about Parents Involved in Community Schools v. Seattle School District No. 1, which invalidated the voluntary use of race by public school boards in Kentucky and Washington? . . . Not even close, at least by one important measure: How many times has the ruling been cited by the lower federal courts? According to my WestLaw research at the end of last week, the partial-birth abortion case had been cited eleven times since it was decided in April, and the schools case had been cited just twice since it was decided in late June. . . . In contrast, the hands-down winner for most-cited was Bell Atlantic Corp. v. Twombly. Since the case was decided in late May, it has been cited by the lower federal courts a whopping 457 times. Indeed, it has been cited almost 300 times in July and August alone. . . . If you've never heard of the Twombly ruling, that's probably because you don't litigate in the federal courts. And therein lies the rub: The Twombly case, as I explain in this column, concerns the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery (interrogatories, depositions, document requests and the like). It is fundamentally about what we might call "lawyer's law." However, the case was produced by a Supreme Court whose Justices have had very little experience as trial lawyers, and no experience at all as trial court judges. Unfortunately, here and elsewhere, that lack of experience sometimes shows.

July 2007

Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court

Tony Mauro, Legal Times

7-30-07 -- The case of District of Columbia v. Heller is barely at the Supreme Court's starting gate, yet nearly everyone involved has a growing sense that this will be the Big One. . . . It is shaping up as the case that finally forces the Court to decide one of the most keenly debated issues in constitutional law: the full meaning of the right to keep and bear arms declared by the Second Amendment. . . . Washington, D.C., Mayor Adrian Fenty is appealing a March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down the city's handgun ban on Second Amendment grounds. The Court has given the city until Sept. 5 to file, and the other side -- residents who want the ban overturned -- say they too want high court review. If the Court accepts, the case could be argued early next year. . . . But even as the case heats up, factions on both sides seem to be getting cold feet. The concern is that even after nearly 70 years of high court silence, the time might not be right for it to speak to the Second Amendment question.

Gun Owners Urge Court To Move Case Along

Posted by Lyle Denniston

7-20-07 -- Washington, D.C., residents who oppose the city's strict handgun control law urged the Supreme Court on Wednesday to move along, without delay, the city government's appeal of a federal appeals court striking down that law under the Second Amendment. Invoking the half-century old admonitions of the late Justice Felix Frankfurter, the local citizens told the Court that it should not be difficult for city lawyers to promptly prepare their petition for review. The document can be found here. . . . The challengers to the local law told the Court that they"look forward" to supporting Supreme Court review of the case, but argued that the city's appeal papers should be filed, as now scheduled, "no later than Aug. 6." . . . The city on Monday asked Chief Justice John G. Roberts, Jr., for a 30-day extension of the time to file the city's petition in the case of District of Columbia, et al., v. Heller, et al. (extension application 07A51). The city argued that it had taken on additional attorneys who needed to become familiar with the issues, and that city officials had only recently decide actually to appeal the case.

Assault on Second Amendment

Terence P. Jeffrey

7-20-07 -- A useful illustration of how American freedom could fade away can be seen in a contrast between the city government of Newton, Mass., in 1775, and the city government of Washington, D.C., in 2007. . . . On Jan. 2, 1775, as historian David Hackett Fischer recounts in "Paul Revere's Ride," the good people of Newton held a town meeting. The issues they discussed were similar in a certain sort of way to the issues that might be discussed today by the D.C. Council. They included a proposed gun law and entitlement program. . . . In Newton, the gun law and entitlement program were one and the same. The Newtonians thought it so important for every man in town to own a gun that they were ready to give him one if he could not afford it. "Voted," say the town records, "that the Selectmen use their best discretion in providing firearms for the poor of the town who are unable to provide for themselves." . . . D.C. Mayor Adrian Fenty does not see guns the way our Founders did. In his view, they are not tools for defending individual liberty, they are instruments of criminality. . . . This week, Mr. Fenty announced the District would appeal to the Supreme Court a March U.S. Court of Appeals for the District of Columbia decision that ruled a District gun law unconstitutional. The law flatly bans possession of a handgun — even in one's own home — unless the gun was registered before 1976. "Wherever I go, the response from the residents is, 'Mayor Fenty, you've got to fight this all the way to the Supreme Court,"' said Mr. Fenty.

City To Battle at High Court Over Special Education

By Joseph Goldstein, Staff Reporter of the Sun

7-20-07 -- The federal government is siding against New York City in a case before the U.S. Supreme Court that parents of children with disabilities are watching closely. . . . The case is likely to set standards for when localities must reimburse parents for private school tuition for students with a range of disabilities. The New York City Department of Education says it must only pay for private school if, after a child is first placed in a public school special education program, the school is unable to meet the needs of the child. The city claims that any other policy will require it to pay for the bias many parents have toward an expensive private education. . . . But the U.S. solicitor general, Paul Clement, argues that the city's policy denies some children immediate access to an appropriate education. In a brief filed to the federal high court this week, the solicitor general's office claims that the city is responsible for funding a private education for students the school system is unable to serve even when the child has never spent a day in public school. . . . The case, which will be argued before the U.S. Supreme Court this fall, is the second this year in which the Justice Department has opposed the city. The city won the first case, which involved local property taxes the city had assessed against foreign governments.

High Court's New Rules Address Critics' Privacy Concerns

Tony Mauro, Legal Times 

7-18-07 -- The Supreme Court appears to have backed away from a controversial proposed rule change that critics said would have threatened the privacy of groups that file amicus curiae or friend-of-the-court briefs with the justices. Following a public comment period that apparently led the justices to reconsider their proposal, the Court on Tuesday issued new rules that will take effect Oct. 1. . . . The original proposal would have had the effect of requiring amicus filers to disclose if parties or their counsel were members of the amicus group or had helped finance the brief. The aim was to prevent parties to get two bites at the apple -- one, a brief filed by the party itself and the second, a brief filed by an amicus group but written or financed by the party. But amicus groups across the spectrum protested that the rule would invade the cherished privacy of their membership rosters. Former members of the solicitor general's office also protested that the rule as written originally would have required government lawyers to reveal, for example, whether they paid dues to the American Civil Liberties Union or the National Rifle Association.

The Supreme Court Fails Semantics

7-11-07 -- One of the skills expected of judges is the ability to understand specialized legal language; this they are trained to do in law school. It also falls to judges to interpret ordinary language. In this they receive no special training, and, from time to time, fail. The recent US Supreme Court decision in Morse v. Frederick is a case in point. . . . The case concerns an incident that occurred when students at a high school in Alaska were let out of school to observe the Olympic Torch Relay. A group of students, among them Joseph Frederick, held up a banner with the words "BONG HiTS 4 JESUS". When the principal, Deborah Morse, demanded that they take it down, Frederick refused. As a result he was suspended. . . . The case raises a number of issues about the free speech rights of high school students that have been the subject of extensive commentary and debate elsewhere. An issue that has not been adequately addressed is what Frederick said that justified punishment. The Supreme Court majority is of the view that the school had the right to punish Frederick for the slogan because it encourages the use of drugs, which it is the policy of the school to discourage. Here is Chief Justice Roberts' majority opinion, in which he was joined by Associate Justices Alito, Kennedy, Scalia, and Thomas, on this point: . . . The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner's words - that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use - demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. . . . Associate Justice Thomas does not address this issue in his concurring opinion, which is devoted primarily to his view that high school students have no free speech rights and that Tinker should be overturned. Associate Justice Alito in his concurring opinion explicitly limits the school's power to forbidding advocacy of illegal drug use, stating that advocacy of the legalization of the use of marijuana, for example, would fall within the student's First Amendment rights.

Detainee Lawyers' Constitutional Wrongs

By Alan Nathan, FrontPageMagazine.com

7-11-07 -- You cannot execute a battle as you might an indictment nor prosecute a war as you might a trial. The Framers of the Constitution knew this when they wrote in Article I, Section 9 that Congress had the right to suspend habeas corpus, “when in cases of rebellion or invasion the public safety may require it.” So why is the Supreme Court allowing Guantanamo Bay prisoners to argue that they’re entitled to challenge their incarcerations in our federal courts? . . . More importantly, why is the court violating the separation of powers by endeavoring to adjudicate that which is not within their jurisdiction, and is therefore something in which they have no standing? . . . The Supreme Court in Hamden v Rumsfeld last year found that Congress’ suspension of habeas corpus in the Detainee Treatment Act of 2005, could not retroactively apply to Osama bin Laden’s aid/driver, Salim Ahmed Hamden. To that extent the court was right because ex post-facto laws are unconstitutional. . . . However, any detainees caught after that effective date are impenetrably insulated from the Supreme Court. Why? Because the justices can’t rule that the Constitution is in opposition to its own text. Idiots!

Who's behind the integration decision?

It's the Pacific Legal Foundation, champion of right-wing causes for 35 years.

By Mark Tushnet

7-9-07 -- THE SEATTLE school integration case decided by the Supreme Court last month was brought in the name of a group called Parents Involved in Community Schools on behalf of Jill Kurfirst and her ninth-grade son. But it was a little-known, Sacramento-based organization called the Pacific Legal Foundation — a conservative public interest law firm involved in the case from the beginning — that developed many of the legal arguments five justices ultimately found persuasive. . . . Where did the foundation come from? The story begins with former Justice Lewis F. Powell. Shortly before he was nominated to the court in 1971, Powell, then a Virginia lawyer, wrote a memo to a friend at the U.S. Chamber of Commerce titled "Attack on the American Free Enterprise System." In it, Powell worried that liberal groups had nurtured specialist lawyers and developed litigation strategies to defend government regulation. Businesses, he argued, were suffering because they had a "disposition to appease" and weren't able to present a countervailing view of what constituted the public interest.

High Court Reveals a Mind for Business

In a term marked by 5-4 rulings, no one proved to be a better friend to corporate America than Alito

Tony Mauro, Legal Times

7-2-07 -- For years, if not decades, leading U.S. Chamber of Commerce lawyer Robin Conrad has told anyone who will listen that a conservative Supreme Court is not always a pro-business Supreme Court. . . . For example, conservative Justices Antonin Scalia and Clarence Thomas have never been able to find, in their copies of the Constitution, any basis for limiting high punitive damage awards that are the bane of the business community. . . . But now, at the end of a course-changing, gut-wrenching Supreme Court term littered with heated 5-4 decisions, one bit of clarity is shining through: the Roberts Court, and especially its newest member, Samuel Alito Jr., are both very conservative and very pro-business -- more so than any Supreme Court in decades. . . . "We've been representing the business community before the Supreme Court for 30 years," Conrad says, "and this is our strongest showing since the inception" of the National Chamber Litigation Center, the chamber's litigation arm, where Conrad is executive vice president. She counts 13 wins in the 16 cases in which the center filed briefs on the merits.

Free Speech From The Mouths Of Babes

by Selwyn Duke, NewsWithViews.com

7-2-07 -- The Supreme court handed down three free speech rulings that find favor with conservatives. One of them is Morse et al. v. Frederick, a case involving the free speech rights of students. At issue is a five year old incident wherein a Juneau-Douglas High School senior named Joe Frederick raised a 14-foot banner stating "Bong Hits 4 Jesus" and was subsequently suspended for "drug speech" by then school principal Deborah Morse. Writing for the majority in a five to four decision in favor of the school, Chief Justice John Roberts reasoned that the First Amendment should not be applied in this case because the student was encouraging drug use. . . . While I agree with the principal's actions and take solace in the knowledge that educators' hands won't be further tied, the Supreme Court's ruling does nothing to address what is the underlying problem. In fact, with the convoluted logic displayed by virtually all members of the court, it's hard to find much to applaud in this judgement. . . . The real issue here extends far beyond this one case and harks back to a precedent set in 1969 in the Tinker v. Des Moines ruling, which divined from the Constitution a right to free speech in schools. Upon issuance of that decision the court stated, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." . . . Really? What can hardly be argued is that the donning of a black robe confers intelligence, wisdom or even much useful knowledge upon the wearer. . . . The truth here can be found in one of the few bright spots in this case. Writing in his concurrence, Justice Clarence Thomas drove to the heart of the matter in saying, ". . . it cannot seriously be suggested that the First Amendment 'freedom of speech' encompasses a student's right to speak in public schools."

June 2007

Supreme Court Overturns 'Dr. Miles' Antitrust Precedent

Breyer reads dissent from bench, predicts rise in price of goods at retail

Tony Mauro, Legal Times

6-29-07 -- Dr. Miles is dead. . . . The Supreme Court on Thursday overturned a 1911 precedent -- known by law students everywhere as the Dr. Miles rule -- under which minimum retail prices established by manufacturers were deemed to be an automatic or per se violation of the Sherman Antitrust Act. . . . Citing modern-day market realities and economic theory, Justice Anthony Kennedy wrote for the 5-4 majority that the per se rule was of "slight relevance" and no longer valid. . . . Instead, he said, "Vertical price restraints are to be judged according to a rule of reason." The ruling was Leegin Creative Leather Products v. PSKS Inc. . . . Justice Stephen Breyer led the dissenters and recited excerpts from the bench, lamenting the Court’s cavalier treatment of a long-obeyed precedent. If Dr. Miles could fall, Breyer suggested that the long-standing antitrust exemption granted to Major League Baseball could be at risk. Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg joined Stevens.

Ending Term, High Court Strikes Down Race-Based School Programs

In key separate opinion, Kennedy says race can be a consideration in limited instances

Tony Mauro, Legal Times 

6-29-07 -- In a historic final day of the Supreme Court term Thursday, the justices by a 5-4 vote struck down plans in Seattle and Louisville, Ky., that used race as a factor in making public school assignments. . . . With both sides invoking the landmark case Brown v. Board of Education -- either to attack consideration of race by public schools or to support it -- the decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education represented a major doctrinal shift that can be traced to the Court's new members, Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. . . . "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," declared Roberts in an opinion stating his views and those of Justices Alito, Antonin Scalia and Clarence Thomas, the Court's only African-American member.

Supreme Court Blocks Execution of Mentally Ill Killer in Texas

Pete Yost, The Associated Press 

6-29-07 -- A divided Supreme Court on Thursday blocked the execution of a Texas killer whose lawyers argued that he should not be put to death because he is mentally ill. . . . The Court ruled 5-4 in the case of Scott Louis Panetti, who shot his in-laws to death 15 years ago in front of his wife and young daughter. . . . The convicted murderer says that he suffers from a severe documented illness that is the source of gross delusions. "This argument, we hold, should have been considered," said Justice Anthony Kennedy, who wrote the majority opinion. . . . Panetti's lawyers wanted the Court to determine that people who cannot understand the connection between their crime and punishment because of mental illness may not be executed.

Even in Agreement, Scalia Puts Roberts to Lash

By Linda Greenhouse

6-27-07 -- It’s not every day that one Supreme Court justice, even one as rhetorically unrestrained as Justice Antonin Scalia, characterizes another justice, let alone the chief justice of the United States, as a wimp and a hypocrite. . . . Yet Justice Scalia did something very close to that, not once but twice, in separate opinions on Monday. As a result, he has served to lift the curtain a bit on the differences within the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so. . . . In the campaign finance case, he accused Chief Justice John G. Roberts Jr. of “faux judicial modesty” for writing an opinion that in Justice Scalia’s view effectively overturned the court’s 2003 campaign finance decision “without saying so.” The clear implication was that the chief justice lacked the courage or honesty to overturn the precedent openly as Justice Scalia himself would have done. . . . “This faux judicial restraint is judicial obfuscation,” he said. . . . And Justice Scalia was scathing in his criticism of an opinion signed by Chief Justice Roberts that limited, but did not completely abolish, the right of taxpayers to go to court to challenge government expenditures that promote religion. Justice Scalia would have gone on to shut the courthouse door completely, not simply limiting but overturning the precedent that the new ruling invoked.

Commentary: The assault on "faux judicial restraint"

Commentary Lyle Denniston

6-27-07 -- Now and then, a footnote in a Supreme Court opinion is so provocative, so perceptive, or both, that it speaks almost as loudly as the body of the opinions themselves. In the election campaign ads ruling on Monday, Justice Antonin Scalia unleashes this broadside at the main opinion, written by Chief Justice John G. Roberts, Jr.: . . . "[T]he principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation." . . . Aside from the substance of the remark, it is especially noteworthy because it is a direct assault on the version of judicial modesty that seems to be -- at least at this early stage of the "Roberts Court" -- the decision-making style that the new Chief Justice has so often advocated publicly. (Perhaps also to be left aside is that Justice Scalia himself joined earlier in the Term in a ruling by the Court, in the partial-birth abortion decision -- Gonzales v. Carhart -- that can be read as having overruled precedent without saying so.)

In 5-4 Vote, Supreme Court Rejects Election Ad Restrictions

Tony Mauro, Legal Times

6-26-07 -- The Supreme Court on Monday seriously weakened a key feature of the McCain-Feingold campaign finance law, possibly ushering in a new era of high court disapproval of measures aimed at reining in campaign excesses. . . . "Enough is enough," Chief Justice John Roberts Jr. wrote, referring to the expansion of government restriction on campaign speech that should be protected by the First Amendment. "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." . . . By a 5-4 vote, the Court said that the 2003 law's ban on pre-election ads that mention candidates by name and are paid for directly by corporations and unions was unconstitutional -- at least as it was applied to the advertisements at issue in the case before it. The ban applied during the 30 days before a primary and the 60 days before a general election. . . . Roberts devised a new standard that would allow such ads to be banned only if the ad is "susceptible of no other interpretation than as an appeal to vote for or against a specific candidate."

Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case

Mark Sherman, The Associated Press 

6-26-07 -- The Supreme Court tightened limits on student speech Monday, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner. . . . Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the Court in a 5-4 ruling. . . . Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau, Alaska, en route to the Winter Olympics in Salt Lake City. . . . Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all. . . . His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

Justices Quash Suit Over Funds For Faith Groups

By William Branigin, Washington Post Staff Writer

6-26-07 -- The Supreme Court ruled yesterday that federal taxpayers cannot challenge the constitutionality of White House efforts to help religious groups obtain government funding for their social programs, handing a victory to President Bush's faith-based initiatives program. . . . In a 5 to 4 decision, the court blocked a lawsuit by a Wisconsin-based group of atheists and agnostics against the White House Office of Faith-Based and Community Initiatives. The court ruled that the suit, by the Freedom From Religion Foundation and three of its taxpaying members, could not go forward because ordinary taxpayers lack legal standing to challenge executive branch expenditures. The ruling reversed a January 2006 decision in favor of the foundation by the U.S. Court of Appeals for the 7th Circuit.

Supreme Court Refuses Tenn. Custody Case

By Woody Baird, Associated Press Writer

6-26-07 -- The U.S. Supreme Court refused Monday to get involved in a custody fight over an 8-year-old girl whose Chinese parents have been trying for seven years to get her back from temporary foster care. . . . Without comment, the high court rejected a request to review a Tennessee Supreme Court ruling that Anna Mae He must be returned to birth parents Shaoqiang and Qin Luo He. . . . "This is wonderful news for my family," Shaoqiang He said of the high court decision. . . . Hes, Chinese nationals who came to Memphis so Shaoqiang He could attend college, put their daughter in the home of an American couple, because of financial hardships, when she was a month old under a private foster care arrangement.

Supreme Court reviews FDA protection

The Supreme Court yesterday agreed to consider whether federal regulatory approval of medical devices shields manufacturers from most product liability lawsuits in state courts.

Associated Press

6-26-07 -- The decision could upend a growing consensus in the federal appeals courts that the Food and Drug Administration's regulation of the devices -- particularly the agency's stringent pre-marketing approval process -- generally does protect the companies from lawsuits. . . . The justices ignored the advice of the Bush administration, which agreed with a federal appeals court and recommended last month the court turn down the case. The Clinton administration had taken the opposite position -- that liability lawsuits could proceed -- in a similar case nine years ago.

Court will hear Louisiana death case

6-26-07 -- (AP) The Supreme Court agreed Monday to review whether race played a role in the selection of an all-white jury that imposed a death sentence on a black man in Louisiana. . . . Allen Snyder was convicted in 1996 of stabbing his estranged wife 15 times and killing a man with whom she was talking. . . . The Louisiana Supreme Court ruled that race had no part in the prosecutor's decisions involving black potential jurors. . . . Dissenting justices said the prosecutor's prejudice was shown by two comparisons he made between Snyder's case and that of O.J. Simpson, who had been acquitted in 1995 of killing his ex-wife and a friend of hers. . . . The U.S. high court had previously ordered the state court to take another look at the case, following a decision overturned a black Texas man's murder conviction and death sentence because prosecutors struck nearly all African-Americans from the jury.

High Court to Hear Internet Cigarette Fight

The Associated Press

6-26-07 -- The Supreme Court on Monday agreed to consider reinstating Maine's law aimed at regulating Internet sales of cigarettes to keep them out of the hands of minors. . . . Trade associations for delivery companies successfully argued in an appeals court that a federal statute supporting the free flow of interstate commerce pre-empted the Maine law. . . . The Maine attorney general, who asked the Supeme Court to hear the case, argues that states should be allowed to exercise their historic public health police powers to stop delivery of tobacco to children. . . . To comply with the state law, carriers must specially inspect every package containing tobacco and destined for delivery in Maine.

High Court Raises the Bar for Investors Alleging Securities Fraud

Tony Mauro, Legal Times 

6-22-07 --The Supreme Court on Thursday made it easier for corporate defendants to seek and win dismissal of lawsuits filed by investors alleging stock fraud or market manipulation. . . . By an 8-1 majority, the Court raised the threshold that plaintiffs must cross in initial pleadings to show that defendants had the intention to deceive or defraud. . . . Justice Ruth Bader Ginsburg, writing for the majority in Tellabs v. Makor Issues & Rights, said the plaintiffs' inferences about the defendant's knowledge of wrongdoing must be "cogent, and at least as compelling as any opposing inference of non-fraudulent intent." The Court rejected a more lax standard, which required only that plaintiffs allege facts from which "a reasonable person" could infer fraudulent intent.

Supreme Court Sets Rules for 'Reasonable' Prison Sentences

Mark Sherman, The Associated Press 

6-22-07 --The Supreme Court made it harder Thursday for most defendants to challenge their federal prison sentences. . . . Appeals courts that review prison terms imposed by trial judges may deem them reasonable if they fall within federal sentencing guidelines adopted in the mid-1980s, the high court said. . . . The justices upheld a 33-month sentence given to Victor Rita for perjury and making false statements. Rita is a 25-year military veteran and former civilian federal employee. . . . The prison term falls within the guidelines range and was upheld by the 4th U.S. Circuit Court of Appeals, posing the question of whether sentences within the guidelines ordinarily will be considered reasonable. . . . The vast majority of federal prison sentences fall within the guidelines.

Supreme Court Upholds Limits on High School Sports Recruiting

Mark Sherman, The Associated Press

6-22-07 --The Supreme Court said Thursday that athletic associations can enforce limits on recruiting high school athletes without violating coaches' free speech rights. . . . The high court ruled in a longstanding dispute between a Tennessee athletic association and a football powerhouse, the private Brentwood Academy near Nashville. . . . The school challenged a rule of the Tennessee Secondary School Athletic Association, which governs high school sports in the state. The association bars schools from contacting prospective students about their sports programs. . . . In a unanimous ruling, the Court said that "hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams and foster an environment in which athletics are prized more highly than academics." . . . Games have rules, Justice John Paul Stevens said for the Court. "It is only fair that Brentwood follow them," Stevens said.

Court Hands High School A Loss In Recruiting Case

By Robert Barnes , The Washington Post

6-22-07 --The Supreme Court decided unanimously Thursday that a state high school athletic association may restrict its member schools from contacting potential student athletes. . . . The decision capped a 10-year, multimillion-dollar legal battle between the Tennessee Secondary School Athletic Association and athletic powerhouse Brentwood Academy, a private school near Nashville that boasted the state's most successful football coach. . . . The association found Brentwood coach Carlton Flatt violated its rules by contacting some eighth-graders about spring practice, even though the boys had already said they were going to attend Brentwood. The school argued that was a violation of Flatt's First Amendment rights.

Supreme Court Grants Banks Broad Implied Immunity From Antitrust Lawsuits

Tony Mauro, Legal Times 

6-20-07 -- In a big win for the securities industry, the Supreme Court on Monday sided with Credit Suisse and other investment banks and dismissed an antitrust class action filed by IPO investors. . . . By a 7-1 vote in Credit Suisse Securities v. Billing, the Court gave the banks broad implied immunity from antitrust lawsuits, ruling that antitrust laws do not apply to the syndication and marketing techniques used in initial public offerings. The Court justified its conclusion in part on the grounds that the Securities and Exchange Commission is better qualified than judges and juries in antitrust cases to determine the legality of conduct in the complex field of initial offerings. . . . "Antitrust courts are likely to make unusually serious mistakes," Justice Stephen Breyer wrote for the majority, repeatedly expressing distrust for judges and juries. Speaking about the complex line-drawing that is involved in determining which conduct by underwriters is illegal, Breyer asked, "Who but the SEC could do so with confidence?" . . . Breyer's strong deference to the SEC in Monday's case could mark a new high-water mark for the regulatory state that could be applied in other contexts, including telecommunications and environmental law, where it could be argued that regulators have more expertise than courts.

Court: Passenger can challenge traffic stop

By James Vicini

6-20-07 -- (Reuters) - A passenger in a car pulled over for a traffic violation can challenge the stop for violating the constitutional protection against unreasonable searches and seizures, the U.S. Supreme Court ruled unanimously on Monday. . . . The justices held that the California Supreme Court was wrong in ruling that any constitutional violations when a police officer illegally stops a vehicle may be challenged only by the driver. . . . The high court's opinion written by Justice David Souter said the passenger in such cases can be considered "seized," basically unable to leave the scene when the police make the traffic stop, and can also challenge the stop. . . . Steven Shapiro of the American Civil Liberties Union applauded the ruling for recognizing that the average passenger does not feel free to leave when police pull over a car.

Supreme Court Turns Down State Tax Cases

Christoper S. Rugaber, The Associated Press

6-20-07 -- The Supreme Court on Monday declined to consider two cases that center on the issue of when states can tax companies outside their borders, disappointing many business groups that wanted the Court to limit the ability of states to do so. . . . The justices, without comment, let stand rulings by state courts in West Virginia and New Jersey that allowed those states to levy income and franchise taxes on companies that do not have a physical presence in the states, such as employees, stores or an office. . . . Previous Supreme Court rulings have held that a state can only levy sales and use taxes against companies that have a physical presence in the state. Several business groups argued in court filings that the "physical presence rule" extends to income and franchise taxes as well. . . . In 2006, however, the West Virginia Supreme Court of Appeals ruled that the state could levy income taxes on MBNA America Bank, a credit-card issuer based in Delaware, because the company earned substantial revenue from customers in the state. MBNA was later purchased by Bank of America Corp. in 2006.

Beware of the Judge

The Supreme Court's doctrine of tough luck

Washington Post Editorial

6-18-07 --KEITH BOWLES was convicted of murder in an Ohio state court and sentenced to 15 years to life in prison. As was his right, Mr. Bowles challenged his conviction in federal court. He lost, though the judge and the clerk in the case didn't let him know before the deadline for appealing. When he learned of the ruling, Mr. Bowles asked for extra time. The judge agreed -- and gave Mr. Bowles 17 days. Mr. Bowles filed his notice of appeal 16 days later. Trouble was, despite the judge's instructions, the law that sets out the time frame for such actions provides for only a 14-day extension. On Thursday, the Supreme Court, splitting 5 to 4, threw out Mr. Bowles's claim, ruling that even though he had complied with the judge's order, he was still too late. . . . This may not be the most momentous legal issue of the term -- unless, of course, you are Mr. Bowles -- but it is a sad example of miserly jurisprudence. The majority opinion, by Justice Clarence Thomas, insisted that the court was left with no choice but to dismiss the case; these time limits, Justice Thomas said, are "jurisdictional," and failing to comply with them, for whatever reason, divests courts of the ability to hear the claim. In less legalistic language: tough luck.

Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide

Tony Mauro, Legal Times 

6-15-07 -- The case of Bowles v. Russell did not generate headlines at any point in its journey to the Supreme Court. And when it was decided by the high court Thursday, no justice spoke in angry dissent. . . . But the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. . . . Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004. . . . After habeas relief had been denied and 30 days passed, federal rules of appellate procedure allowed for a 14-day extension to file an appeal. But inexplicably, the judge in the case, Donald Nugent of the Northern District of Ohio, gave Bowles 17 days to file instead of 14. Bowles appealed on the 16th day, and his appeal was rejected as untimely.

Justices curb unions' political use of fees

Public employee groups need a member's explicit approval before use dues for advocacy, Supreme Court rules unanimously.

By David G. Savage, Times Staff Writer

6-15-07 -- In a setback for organized labor, the Supreme Court ruled Thursday that states may bar public employee unions from using compulsory dues for political purposes unless individuals give their explicit approval. The 9-0 ruling opens the door for states to pass laws restricting use of union dues. . . . Nationwide, 12 million workers in public- and private-sector jobs are required to pay dues or fees to a union even if they elect not to join, and the National Right to Work Committee and other opponents of unions have fought these forced dues as unconstitutional. . . . President Bush and other conservatives have campaigned in favor of "paycheck protection" laws to limit the political use of union dues, long a major source of funding for Democratic candidates. Thursday's ruling in favor of such a law in Washington state implicitly endorsed those efforts.

U.S. Supreme Court Supports New York City’s Effort to Collect Taxes on Some U.N. Missions

By Linda Greenhouse

6-15-07 -- New York City can go forward with its effort to collect unpaid property taxes from foreign governments that use part of their United Nations missions for housing, the Supreme Court ruled on Thursday. . . . The court rejected an argument by India and Mongolia that the principle of sovereign immunity shielded them from a lawsuit the city filed in 2003 to establish its right to collect what it says is now about $25 million in unpaid taxes and interest. . . . “Property ownership is not an inherently sovereign function,” Justice Clarence Thomas said for the 7-to-2 majority. . . . The dissenters were Justices John Paul Stevens and Stephen G. Breyer. . . . The decision upheld a ruling issued last year by the United States Court of Appeals for the Second Circuit, in Manhattan. . . . The Supreme Court agreed to hear the appeal by India and Mongolia at the urging of the Bush administration, which told the court that allowing suits against foreign countries for unpaid property taxes would “adversely affect the nation’s foreign relations.” . . . Michael A. Cardozo, New York City’s corporation counsel, said on Thursday that to the contrary, “this is a critical decision for the rule of law.”

Justices, 5-4, Accept No Excuses From Inmate for Mistaken Late Filing of an Appeal

By Linda Greenhouse

6-15-07 -- A narrow Supreme Court majority on Thursday agreed that a lower court properly dismissed the appeal of a man who missed a federal filing deadline by three days because of a federal district judge’s erroneous instructions. . . . The defendant, Keith Bowles, who is serving a sentence of 15 years to life for murder, had argued that given the judge’s erroneous instruction — that he had 18 days to file an appeal instead of the 14 that federal law allows — his case should come within the “unique circumstances” doctrine that the Supreme Court created to recognize unusual instances when jurisdictional rules need not be strictly enforced. . . . The court, however, used the case to announce it was overruling the two precedents the Supreme Court had used when it established the “unique circumstances” doctrine in the 1960s. Writing for the majority, Justice Clarence Thomas said the court now regarded the doctrine as illegitimate. “If rigorous rules like the one applied today are thought to be inequitable,” Justice Thomas added, the remedy should come from Congress.

High Court Goes Against Labor in Pension Case

The Associated Press 

6-12-07 -- The Supreme Court on Monday decided against imposing a new requirement on employer pension plans. . . . In a unanimous decision, the justices said companies do not have a duty to consider an invitation to merge their pension plans as an alternative to terminating them. . . . The ruling came in the case of Crown Vantage Inc., a bankrupt paper company that received a merger proposal from a labor union pension fund to cover Crown's 17 pension plans. . . . At the time, Crown had already decided to terminate its pension plans and was considering using the money to buy annuities for plan participants and beneficiaries. Such a transaction would have enabled the company to recoup a $5 million surplus, which would have gone to the company's creditors.

Justices Allow Companies to Seek Recovery of Costs in Voluntary Superfund Cleanups

Pete Yost, The Associated Press 

6-12-07 -- The Supreme Court strengthened a landmark anti-pollution program Monday, enabling companies to recover costs when they voluntarily clean up hazardous material. . . . In a unanimous ruling, the justices said the federal Superfund law allows lawsuits to recover costs incurred in voluntary cleanups. The Bush administration had argued otherwise. . . . The law is worded "so broadly as to sweep in virtually all persons likely to incur cleanup costs" and the government's interpretation "makes little textual sense," said the opinion by Justice Clarence Thomas. . . . The case involves a company that contracted with the U.S. government to retrofit rocket motors. Atlantic Research Corp. voluntarily cleaned up pollution from rocket propellent that seeped into the soil and groundwater. . . . The company then sued the government in an effort to recoup some of the cleanup costs.

Supreme Court: Philip Morris Cannot Move Case to Federal Court Based on FTC Regulation

Andrew DeMillo, The Associated Press

6-12-07 -- A lawsuit against Philip Morris Cos. Inc. by smokers who claimed the company deceived consumers in the marketing of its "light" cigarettes must be tried in Arkansas state court and cannot be moved to federal court, the U.S. Supreme Court ruled Monday. . . . The unanimous decision came in a case that Lisa Watson and Loretta Lawson filed against the Richmond, Va.-based cigarette company in Pulaski County Circuit Court in 2003. The women argued that the company's Marlboro and Cambridge cigarettes weren't as low in tar and tobacco as advertised. . . . Philip Morris, a part of Altria Group Inc., moved the case to federal court in Little Rock, saying it could do so because the company was pervasively regulated by the Federal Trade Commission. The Court said the fact that a federal agency directs a company's activities does not permit removing the case to federal court. . . . "This was a slam dunk on behalf of our clients," said Darrin Williams, a Little Rock attorney who represented the two women. "It says no, corporations, you can't move a case to federal court because you don't want to go to state court."

High Court Rules Against Home Aide on Wages

By Steven Greenhouse

6-12-07 -- The United States Supreme Court ruled yesterday against a home care aide from Queens and upheld federal regulations that exempt most home care workers from minimum-wage and overtime protections. . . . In a 9-to-0 decision, the court rejected the arguments made by the home care aide, Evelyn Coke, that the Labor Department’s regulations should be invalidated because they conflict with Congress’s intent to broaden wage protections. . . . The ruling upset labor unions and women’s groups, which fear that it will push many of the nation’s 1.4 million home care workers into worse financial straits. But home care agencies and federal and city officials applauded the ruling, saying it would reduce labor costs for home care, costs that are largely borne by various levels of government. . . . The Bloomberg administration filed an amicus brief in the case, arguing that a victory for Ms. Coke could force the city, state and federal governments, which finance home care through Medicaid, to pay $250 million more a year to the 60,000 home care attendants in the city. . . . One of Ms. Coke’s sons said his mother was too ill to comment.

Supreme Court to Review Disparity in Crack and Powder Cocaine Sentences

Mark Sherman, The Associated Press 

6-12-07 -- The Supreme Court agreed Monday to review whether judges are required to impose dramatically longer sentences for crack cocaine than for cocaine powder, stepping into a long-running dispute with racial overtones. . . . Most crack cocaine offenders in federal courts are black. . . . The justices said they would hear the case of Derrick Kimbrough in the fall. Kimbrough, who is black and a veteran of the first war with Iraq in 1991, received a 15-year prison term for dealing crack and powder cocaine, as well as possessing a firearm in Norfolk, Va. . . . That was shorter than the federal sentencing guidelines that called for a range of 19 to 22 years in prison. . . . At Kimbrough's sentencing hearing, U.S. District Judge Raymond A. Jackson said the higher range was "ridiculous."

Assault Launched on High Court's Pay Disparity Ruling

Congress urged to undo decision that bars many unequal pay claims; Ledbetter is scheduled as witness in Tuesday hearing

Osita Iroegbu, Legal Times

6-11-07 -- When a Supreme Court ruling last month made it more difficult for victims of unequal pay to sue their employers, advocates for the American business community celebrated. . . . "We are thrilled," Karen Harned, executive director of the National Federation of Independent Business Legal Foundation, said at the time. . . . The thrill, however, could be gone -- and sooner rather than later. Almost immediately after the May 29 decision in Ledbetter v. Goodyear Tire & Rubber Co., Democratic staffers were quietly, yet urgently, crafting legislation to reverse the 5-4 ruling during what was supposed to be recess week on the Hill. . . . In Ledbetter, the Court's majority found that a claim of pay discrimination must be filed with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory action -- not 180 days from the complainant's last paycheck, as it had been previously interpreted. . . . The ruling sparked a stinging dissent from Justice Ruth Bader Ginsburg, the only woman on the bench. She called the Court's interpretation of Title VII "parsimonious" and, in what some saw as a call to action, remarked that "the ball lies in Congress' court" to correct the ruling.

Supreme Court to take FedEx age discrimination case

Associated Press

6-6-07 -- The Supreme Court said Monday that it will consider whether an age discrimination lawsuit against FedEx Corp. can proceed. . . . At issue is whether a group of 14 FedEx employees, led by Patricia Kennedy and Paul Holowecki, followed proper procedures in suing FedEx for age discrimination. . . . The Memphis, Tenn.-based company is arguing that the suit should be dismissed because Kennedy did not file a formal charge alleging age discrimination with the Equal Employment Opportunity Commission until after she sued FedEx. The other employees joined Kennedy’s complaint.

Ruling Affirms Judges' Authority

High Court Backs Exclusion of Juror In Capital Case

By Charles Lane, Washington Post Staff Writer

6-6-07 -- The Supreme Court bolstered trial judges' authority to shape juries in death penalty cases yesterday, ruling that a court in Washington state properly disqualified a man who expressed doubts about capital punishment during pretrial questioning. . . . By a vote of 5 to 4, the justices concluded that the exclusion was reasonable and consistent with Supreme Court precedents, which require that jurors in capital cases be "death qualified" -- able to impose death if the law provides for it, even if they oppose capital punishment. . . . The prospective juror said he supported the death penalty, but only if the killer might otherwise go free and kill again. Prosecutors argued that this meant he would automatically vote against the death penalty, because Washington allows an alternative of life in prison without parole. . . . The trial judge agreed, and the prospective juror was dismissed. The defendant, Cal Coburn Brown, was convicted and sentenced to death. But the defense appealed, and the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, overturned the sentence. The high court overturned that ruling yesterday.

Insurers must warn consumers about rates

Notification is required if a credit report boosts the price, justices rule.

By David G. Savage, Times Staff Writer

6-6-07 -- Consumers who are charged higher rates for insurance because of a poor credit report must be notified by the insurer, the Supreme Court ruled Monday. . . . However, the justices shielded most insurance firms from being sued in such cases, except when the insurer recklessly violates federal law. . . . The Fair Credit Reporting Act of 1970 was intended to protect consumers and to shield them from the hidden power of a bad credit report. Sometimes the credit report contains errors, and consumers should have a chance to learn about the mistakes and correct them, lawmakers said. . . . The law says companies must notify consumers whenever they are subjected to an "adverse action" because of information in their credit file. A company that "willfully fails" to follow the law can be sued and be required to pay damages. . . . Until Monday, courts were split on what constituted "adverse action" and a "willful" violation.

DECISIONS

Justices Rule on Proving Violations in Credit Reporting Cases

Pete Yost, The Associated Press 

6-5-07 -- The Supreme Court sided with two insurance companies Monday in a case involving alleged violations of the Fair Credit Reporting Act. . . . The law requires insurance companies and other businesses to notify customers who are charged more because of their credit ratings. . . . In a unanimous decision, the justices said Geico General Insurance Co. did not violate the law and that Safeco might have, but did not do so recklessly. . . . The insurance industry said a decision against it could have subjected companies to billions of dollars in punitive damages for failing to notify customers. . . . Thirteen state insurance commissioners said that a lower threshhold for proving liability -- adopted by the 9th U.S. Circuit Court of Appeals in San Francisco -- would motivate compliance with the law. . . . To find liability, a company's conduct must be more than "merely careless," wrote Justice David Souter.

High Court Says Florida Does Not Have to Pay Nudist's Lawyers

The Associated Press

6-5-07 -- The Supreme Court made it harder Monday to recover legal fees from the government, ruling against a woman who sued for the right to form a peace sign in the nude in a Florida park. . . . The justices ruled unanimously against Toni Anne Wyner, a nudist from Fort Pierce, Fla. . . . Wyner won a federal court ruling that allowed her and other performers to go forward with their protest in the nude on Valentine's Day 2003. . . . Based on the order, known as a preliminary injunction, a federal judge ruled that Florida should pay Wyner's lawyers $25,000 in legal fees. . . . But Wyner's lawsuit also was a broader challenge to a Florida law that bans nudity on beaches, arguing that the law violated her First Amendment right of free expression. . . . Wyner lost that fight and the Supreme Court said that what matters is the final resolution of the lawsuit.

Supreme Court Reinstates Death Sentence for Man Who Argued Juror Was Wrongly Excluded

Mark Sherman, The Associated Press 

6-5-07 -- The Supreme Court reinstated the death sentence Monday of a man convicted of carjacking, rape and murder who initially won a reprieve by arguing that a potential juror was wrongly excluded from his trial. . . . The Court, in a 5-4 decision, said that the Washington state judge who presided over the trial of Cal Coburn Brown properly used his discretion to excuse a potential juror who expressed equivocal views about the death penalty. . . . The juror in question was challenged by prosecutors because he indicated he would impose the death penalty only if the defendant were in the position to kill again. Jurors' options were limited: they could sentence Brown to death or life in prison with no parole. . . . Defense lawyers did not object at trial. When the issue was raised on appeal, Washington state courts and a federal judge affirmed the conviction.

REFUSAL

Supreme Court Declines Case of Ala. Leukemia Victim's Widow

The Associated Press 

6-5-07 -- The widow of a leukemia victim failed to persuade the Supreme Court Monday to consider allowing her to sue oil companies over her husband's exposure to a toxic chemical, a case her lawyer calls a legal "Catch 22" in Alabama. . . . The justices without comment declined to take up the case of Martha Jane Cline, who is trying to hold the companies accountable for her late husband's health problems. Jack Cline, of Vance, Ala., died in January. . . . The Alabama Supreme Court ruled that he waited too long to sue, even though Cline didn't know he was sick until after the deadline to sue had passed. Cline's attorney, Robert Palmer, who has filed many suits in other states over exposure to toxic chemicals, said all other states have a time limit that begins when a person learns of an illness.

Conley R.I.P.

By Philip K. Howard

6-4-07 -- Recently, almost unnoticed, the Supreme Court repudiated a 1957 ruling, Conley v. Gibson, which opened the floodgates to abusive litigation. Now the Court needs to figure out how to put the lawsuit genie back in its bottle. . . . In Conley, the Supreme Court had instructed judges to almost never dismiss a claim. Cited in an amazing 40,000 decisions over the past 50 years, Conley gave lawyers carte blanche to sue for almost anything: "A complaint should not be dismissed … unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." . . . Conley and its progeny changed American culture. With judges unable to dismiss claims, suing for the moon became standard practice. Justice became a weapon for extortion. The effects rippled through daily dealings. Spontaneity was replaced by legal fear. . . . In a 2005 Harris poll, only 16% of Americans said they would trust our system of law if someone brought a baseless claim. Distrust of justice directly correlates to the loss of freedom in daily choices. . . . Conley v. Gibson is no longer the law of the land. Justice David Souter, writing for a 7-2 majority in an important antitrust case, Bell Atlantic v. Twombly, held that the "famous observation" in Conley "has earned its retirement."

May 2007

Injustice 5, Justice 4