United States Supreme Court (Fall 2007) News & Views

SCOTUS News & Views Fall 2007
(2007-2008 Session)

July 2008

Louisiana Asks Supreme Court to Reopen Child Rape Case

Mark Sherman, The Associated Press

7-22-08 -- Louisiana prosecutors asked the U.S. Supreme Court on Monday to revisit its recent decision outlawing the death penalty for people convicted of raping children. . . . The unusual request is based on the failure of anyone involved in the case -- lawyers on both sides as well as the justices -- to take account of a change in federal law in 2006 that authorizes the death penalty for members of the military who are convicted of child rape. . . . The Court almost never grants such requests, but lawyers for Louisiana said their situation was different because the 5-4 decision written by Justice Anthony Kennedy relied in part on what Kennedy called a "national consensus" against executing convicted rapists. . . . The ruling on June 25 drew harsh criticism from politicians in Louisiana and other states where executing those who rape children was authorized or under consideration. Presidential contenders John McCain and Barack Obama also said they disagreed with the outcome of the case.

About Face

A tool of the civil rights movement is increasingly unwelcome in the high court

By David G. Savage, ABA Journal

July 2008 Issue --  The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time. . . . Here’s another way to say it: Facial challenges are out. As-applied challenges are in. . . . In a series of rulings during the past two years, the court has rejected broad challenges to new laws while at the same time leaving open the door to a more targeted attack on some of the laws’ provisions. . . . In Crawford v. Marion County Election Board (PDF), decided April 28, the court rejected by a 6-3 margin a facial attack on an Indiana law that requires voters to have current, gov­ern­ment-issued photo iden­tification when they go to the polls. . . . The American Civil Liberties Union and the Indiana Democratic Party sued in 2005 to have the law voided on the grounds that it would severely burden the right to vote for those who are indigent, disabled, elderly or minorities. But the lawyers did not name a single plaintiff who had been deterred from voting because of the requirement.

Next Term: A Fatter, Faster Calendar for Supreme Court

Chief justice is hastening the argument calendar to front-load the 2008-09 term

Tony Mauro, Legal Times

7-3-08 -- The current term is history, so what's up for the Supreme Court's next term, which begins Oct. 6? More cases, heard more quickly, and possibly decided with more division among the justices than the term just ended. . . . The Court has already granted review in enough cases to fill 43 hours of oral argument, allowing Chief Justice John Roberts Jr. to hasten the argument calendar, and making it likely that the Court will decide more cases with signed opinions after argument than this term's 67, the lowest number in more than 50 years. . . . The cases pose a range of tough and possibly divisive issues from religion in the public square to expletives on the public airwaves. More about those later. At a Court that changes its ways rarely and uneasily, tinkering with the calendar is as significant as the cases it will consider. . . . Steering the Supreme Court's doctrine in a new direction is one thing. But altering its calendar -- that's a true sign that a new chief justice has taken control of the Court. Roberts announced the change in a June 6 speech at the judicial conference of the U.S. Court of Appeals for the D.C. Circuit. . . . In October and November, the justices will hear three arguments a day instead of two, likely leaving fewer cases to be argued next spring -- possibly as few as one a day. By front-loading the calendar, Roberts aims to give himself and his colleagues more decisions to write and issue through the winter, alleviating the Court's usual headlong race to finish the term's work in May and June.

June 2008

Supreme Court Strikes Down D.C. Gun Ban

Tony Mauro Legal Times

6-27-08 -- In a historic 5-4 decision Thursday, the Supreme Court declared for the first time that the Second Amendment protects an individual right -- not a collective or militia right -- to keep and bear firearms for self-defense. . . . The ruling ended the Court's nearly 70-year aversion to considering the meaning of the Second Amendment's oddly constructed language: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." . . . The immediate result of the ruling in District of Columbia v. Heller was to strike down the District's tough 32-year-old ban on handguns and its trigger-lock requirement on other firearms, which the city had said were essential to contain violence in the nation's capital. . . . The original plaintiff, D.C. resident Dick Heller, said immediately after the decision was handed down that he would seek a handgun permit soon, but it may be weeks or months before the D.C. bureaucracy, unaccustomed to handling gun permits, is ready to act. Mayor Adrian Fenty expressed disappointment at a press conference, adding, "More handguns will lead to more handgun violence." . . . "This is a great moment in American history," Wayne LaPierre, vice president of the National Rifle Association, said in a statement. The NRA did not initiate the D.C. challenge but eventually embraced it. But Chicago Mayor Richard Daley, whose city has a handgun law similar to D.C.'s, said the decision could bring a "return to the days of the Wild West," according to news reports.

Justices Strike Down 'Millionaire's Amendment' Campaign Finance Law

Pete Yost, The Associated Press

6-27-08 -- The Supreme Court on Thursday struck down the "millionaire's amendment," a campaign finance law intended to level the field for House candidates facing wealthy opponents who spend lots of their own money.

The law says that when candidates spend more than $350,000 from their own pockets, opponents may qualify to accept larger individual contributions than normally allowed and can receive unlimited coordinated party expenditures. . . . The justices, in a 5-4 ruling that reflects skepticism of campaign finance overhauls, said the law violates the First Amendment. . . . "We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other," Justice Samuel Alito wrote for the majority. . . . In dissent, Justice John Paul Stevens said that because the law "does not impose any burden whatsoever on the self-funding candidate's freedom to speak, it does not violate the First Amendment." Stevens highlighted the law's goal of fighting the perception that "congressional seats are for sale to the highest bidder."

High Court Makes Electric Rate Challenge Difficult

The Associated Press

6-26-08 -- The Supreme Court on Thursday made it difficult for utility companies to successfully challenge costly, long-term energy supply contracts negotiated during the West Coast energy crisis seven years ago. . . . The justices said in a 5-2 decision that the contracts must be presumed to be just and reasonable, absent serious harm to the public interest. . . . Writing for the majority, Justice Antonin Scalia nonetheless ruled in favor of the utilities on one point, saying the Federal Energy Regulatory Commission must provide a more complete explanation of why it upheld the agreements. . . . The presidentially appointed commission said the agreements were not contrary to the public interest. . . . In dissent, Justice John Paul Stevens said that both the commission and the Court majority have construed the federal regulators' authority too narrowly, setting up a rigid standard that Congress did not intend. Justice David Souter also dissented.

Supreme Court Reduces Damages Awarded in Exxon Case

Tony Mauro, Legal Times

6-26-08 -- A punitive damage award in the Exxon Valdez oil spill case that once amounted to $5 billion was knocked down to $507.5 million by the Supreme Court on Wednesday. . . . The 5-3 majority said that in the maritime law context, there should be a 1:1 ratio between compensatory and punitive damages. A trial judge had awarded $507.5 million in compensatory damages to a class of fishermen who suffered losses from the 1989 oil spill, so Justice David Souter, who wrote the majority opinion, said the punitive award should match that figure. The award had already been reduced to $2.5 billion on appeal, so Wednesday's decision saved Exxon Mobil nearly $2 billion. . . . Even though the ruling was based on maritime law, a unique branch of federal common law, the Souter opinion was full of concern about unpredictable "outlier" verdicts against corporations. . . . "The real problem, it appears, is the stark unpredictability of punitive awards," Souter wrote after a lengthy survey of the history of punitive damages.

Justices Reject Death Penalty for Child Rapists

Tony Mauro, Legal Times

6-26-08 -- For the third time in six years, the Supreme Court on Wednesday placed a category of defendants outside the reach of the death penalty, this time ruling that execution is unconstitutional for those whose crimes did not result in the death of the victim. . . . By a 5-4 vote, the Court reversed the death penalty for Patrick Kennedy, a Louisiana man sentenced for raping and seriously injuring, but not killing, his 8-year-old stepdaughter. He would have been the first person executed for non-homicide child rape since 1964. . . . The decision in Kennedy v. Louisiana came on the next to last day of the term and did not fit this term's pattern of generally greater unanimity in decision-making among the justices. . . . The Court struck down the death penalty for raping an adult in the 1977 case Coker v. Georgia, but until Wednesday it had not closed the door completely on executing those convicted of other non-homicide crimes against individuals. . . . Though instances of child rape can be "devastating in their harm, as here," Justice Anthony Kennedy wrote for the majority, "they cannot be compared to murder in their severity and irrevocability."

Supreme Court Rejects Death Penalty for Child Rape

By David Stout

6-26-08 -- The Supreme Court ruled, 5 to 4, on Wednesday that sentencing someone to death for raping a child is unconstitutional, assuming that the victim is not killed. . . . “The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony M. Kennedy wrote for the court. He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. . . . The court overturned a ruling by the Louisiana Supreme Court, which had held that child rape is unique in the harm it inflicts not just upon the victim but on society and that, short of first-degree murder, no crime is more deserving of the death penalty. . . . Justice Kennedy, while in no way minimizing the heinous nature of child rape, wrote that executing someone for that crime, assuming that the victim was not killed, violates the Eighth Amendment’s ban on cruel and unusual punishment, which draws it meaning from “the evolving standards of decency that mark the progress of a maturing society.” . . . “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint,” Justice Kennedy wrote.

Supreme Court overturns L.A. murder conviction

Justices' 6-3 ruling in a domestic violence case makes it more difficult for prosecutors to use victims' previous statements to police.

By David G. Savage, Los Angeles Times Staff Writer  

6-26-08 -- The Supreme Court dealt a setback to prosecutors in domestic violence cases Wednesday, ruling that a slain woman's earlier reports to the police of her boyfriend's threats may not be used against him at his trial unless it can be shown he killed her in order to silence her as a witness. . . . Often, when spouses or partners are found dead at home, the strongest evidence to show the victim was murdered comes from their earlier statements to police. But the high court, led by Justice Antonin Scalia, said the use of such statements at trial violates the defendant's right to "confront" the accuser. . . . The 6-3 decision overturned the murder conviction of a Los Angeles man who shot and killed his girlfriend. Dwayne Giles, the convicted killer, admitted he shot Brenda Avie six times when she came to his house in South Los Angeles on Sept. 29, 2002, but he said he acted in self-defense. . . . Giles was convicted after the jury heard a police officer's report quoting Avie. Three weeks before the slaying, the officer had responded to a domestic disturbance call and encountered the couple. The officer said he took the woman aside, and she said Giles had pulled a knife on her and had "threatened to kill her."

Supreme Court Says Right to Counsel Begins With First Appearance Before Judge

Justices begin final week before adjourning for summer

Tony Mauro, Legal Times

6-24-08 -- A defendant's Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand, the Supreme Court ruled on Monday. . . . The Court's 8-1 decision in Rothgery v. Gillespie County, Texas, came as the justices began their final week before adjourning for the summer. The justices will take the bench again on Wednesday and possibly one other day this week. . . . The ruling in Rothgery dealt with a Texas "magistration" procedure under which a defendant goes before a magistrate judge, has bail set, and can be imprisoned -- all without the involvement of a prosecutor or the appointment of defense counsel. . . . Walter Rothgery had been picked up in Fredericksburg, Texas, based on an erroneous California police report and was arrested as a felon with a firearm. He was jailed for a period, but posted bail. It was not until six months after his initial appearance before a judge that counsel was appointed -- at which point the lawyer documented the erroneous report and got Rothgery's indictment dismissed.

Death Row Inmate’s Case Gets 3rd Hearing

By Adam Liptak The New York Times

6-24-08 -- The Supreme Court agreed on Monday to have a third look at the case of a death row inmate in Tennessee, this time to consider whether he has forfeited the opportunity to argue that prosecutors withheld evidence important to his defense. . . . In its two earlier decisions, the Supreme Court reversed rulings from the federal appeals court in Cincinnati that had favored the inmate, Gary B. Cone. This time, the appeals court, the United States Court of Appeals for the Sixth Circuit, ruled for the prosecution, over the dissents of seven judges. . . . Mr. Cone, a decorated Vietnam War veteran, killed Shipley Todd, 93, and his wife, Cleopatra, 79, in their Memphis home at the end of a two-day crime spree in 1980. His only defense was that he had been in the throes of an amphetamine psychosis. . . . “This proved to be a tenuous defense, at best,” the Tennessee Supreme Court said in affirming Mr. Cone’s conviction and death sentence. There was no solid evidence, the court said, that Mr. Cone was even a drug user. . . . Indeed, a prosecutor called Mr. Cone’s claim that he was a drug addict “baloney.” Mr. Cone, the prosecutor said, was instead “a calm, cool professional robber.”

Supreme Court Agrees to Review Navy Sonar Case

Dina Cappiello, The Associated Press

6-24-08 -- The Supreme Court on Monday stepped into a dispute over the Navy's use of sonar off the Southern California coast and its potential harm to dolphins and whales. . . . Acting at the Bush administration's urging, the Court agreed to review a federal appeals court ruling that limits the use of sonar in naval training exercises. . . . Sonar, which the Navy uses primarily to locate enemy submarines at sea, can interfere with marine mammals' ability to navigate and communicate. There is some evidence that the technology has caused whales to strand on shore. . . . The administration says the decision by the 9th U.S. Circuit Court of Appeals in San Francisco jeopardizes the Navy's ability to train sailors and Marines for service in wartime. . . . The government also says national security interests can trump those of marine mammals, and that its use of mid-frequency sonar in training exercises hasn't caused any documented harm to dolphins or beaked whales. . . . The Navy applauded the high court's intervention.

Supreme Court Rules Against Long-Distance Phone Companies

The Associated Press

6-23-08 -- The Supreme Court ruled Monday that a collection agency with no financial stake in a case can sue on behalf of its customers. . . . The 5-4 decision addresses a basic legal point, that courts can only hear cases when plaintiffs suffer actual injuries that are traceable to a defendant's conduct. . . . In the case before the Court, APCC Services Inc. is trying to collect from Sprint Communications Co. and San Antonio-based AT&T Inc. for coinless long-distance calls over the networks of Sprint and AT&T. . . . APCC provides billing and collection services on behalf of pay-phone service providers. . . . Writing for the majority, Justice Stephen Breyer said APCC may pursue the claim, even though it has promised to turn over any money from the lawsuit to pay-phone service providers.

High Court Rejects Environmental Groups' Challenge to Mexican Border Fence

The Associated Press

6-23-08 -- The Supreme Court on Monday turned down a plea by environmental groups to rein in the Bush administration's power to waive laws and regulations to speed construction of a fence along the U.S.-Mexican border. . . . Homeland Security Secretary Michael Chertoff has used authority given to him by Congress in 2005 to ignore environmental and other laws and regulations to move forward with hundreds of miles of fencing in four states bordering Mexico. . . . The case rejected by the Court involved a two-mile section of fence in the San Pedro Riparian National Conservation Area near Naco, Ariz. The section has since been built. . . . "I am extremely disappointed in the Court's decision," Rep. Bennie Thompson, a Democrat, said. "This waiver will only prolong the department from addressing the real issue: their lack of a comprehensive border security plan."

Supreme Court Limits Self-Representation by Mentally Ill Defendants

Lawyers are good for something, it appears.

Tony Mauro, Legal Times

6-20-08 -- The Supreme Court on Thursday said that defendants found mentally competent to stand trial are not necessarily also competent to represent themselves at the trial. As a result, the Court ruled by a 7-2 vote that states may insist that mentally ill defendants be represented by counsel when "they are not competent to conduct trial proceedings by themselves." . . . The decision was one of five issued Thursday, leaving 10 cases outstanding for the Court to hand down next week, which is expected to be the Court's final week before adjourning for the summer. The Court will sit on Monday and another day next week, as yet unspecified. . . . In the case on self-representation, Justice Stephen Breyer said the traditional test for competence to stand trial -- the ability to consult with counsel and to assist in preparing the defense -- does not weigh the additional skills needed to represent oneself. Someone competent to stand trial, Breyer wrote, may nonetheless "be unable to carry out the basic tasks needed to present his own defense without the help of counsel." . . . The ruling came in Indiana v. Edwards, in which Ahmad Edwards, accused of attempted murder in a 1999 department store robbery, seeks to represent himself at trial. Three times he was found incompetent to stand trial, but by 2005, after psychiatric help he was found competent -- and he renewed a request to represent himself. The trial judge said no, but on appeal two Indiana courts said he had a right to represent himself under Supreme Court precedents. . . . Indiana appealed to the Supreme Court, arguing for a standard that would deny self-representation to defendants who "cannot communicate coherently with the court or a jury."

Supreme Court voids California union law

The legislation would have blocked employers that received state money from tapping those funds to speak out against labor organizations.

By David G. Savage, Los Angeles Times Staff Writer  

6-20-08 -- In a defeat for the union movement, the Supreme Court on Thursday struck down a first-in-the-nation law adopted in California that would have barred companies from speaking out against unions if they received state funds. . . . The justices in a 7-2 decision said the state measure conflicts with the free-speech zone created by federal labor law. . . . The ruling is likely to benefit especially companies in the healthcare industries, such as nursing homes, that receive some state funds and have low-level employees who are not unionized. It is a sharp setback for unions seeking to organize janitors, nurses, clerical workers and other employees in those areas.

Court Clarifies Standards For Denial Of Disability Benefits

In a ruling Thursday, it guides federal judges to weigh conflicts of interest by insurance companies.

By Warren Richey | Staff writer of The Christian Science Monitor

6-20-08 -- Judges must approach medical disability and health insurance disputes with a skeptical eye when they involve insurance companies that both evaluate and pay employee claims. . . . In a 6 to 3 decision announced Thursday, the US Supreme Court ruled that benefit denials by such companies must be examined with caution when circumstances suggest a high likelihood that financial considerations affected a benefits decision. . . . The court added that an apparent conflict of interest is only one of many factors that a reviewing judge must consider. . . . The ruling is important because it offers guidance to federal judges presiding over lawsuits challenging medical disability and health insurance determinations in group policies. . . . "When judges review the lawfulness of benefit denials, they will often take account of several different considerations of which a conflict of interest is one," writes Justice Stephen Breyer in the majority opinion. . . . The decision, in Metlife v. Glenn, comes in the case of an Ohio woman diagnosed with a severe heart condition, who had her disability benefits withdrawn by the Metropolitan Life Insurance Co.

Supreme Court Rules for Workers in Age Bias Suit

The Associated Press

6-19-08 -- The Supreme Court made it easier Thursday for employees to prove they have suffered discrimination because of their age. . . . In a 7-1 ruling, the Court said that when older workers are disproportionately affected by an employment decision, the employer bears the burden of explaining whether there was a reasonable explanation other than age for the company's action. . . . The case involves workers over 40 who challenged their dismissals from jobs at the Knolls Atomic Power Laboratory in upstate New York. . . . Thirty of the 31 workers laid off by the lab in 1996 were over 40. Twenty-six of those employees sued Knolls claiming that the layoffs violated the federal Age Discrimination in Employment Act. . . . Justice David Souter acknowledged, in his majority opinion, that the decision "makes it harder and costlier to defend" age discrimination lawsuits. But Souter said, "We have to read it the way Congress wrote it." . . . Justice Clarence Thomas wrote a brief dissent.

High Court Will Hear Case Against Ashcroft Over Post-9/11 Detention

Tony Mauro, Legal Times

6-17-08 -- The Supreme Court on Monday granted review in a case that the Bush administration warned could expose top government officials to distracting trials and personal liability for their actions in the war on terror. . . . The case, Ashcroft v. Iqbal, asks the Court to reverse a ruling by the 2nd U.S. Circuit Court of Appeals allowing a lawsuit to proceed against former Attorney General John Ashcroft and other top officials. The case, which was brought by a Pakistani citizen detained in New York after the 9/11 terrorist attacks, will be argued in the fall. . . . Javaid Iqbal claims that his detention in 2001 was the result of race-based policies devised by Ashcroft, FBI Director Robert Mueller and others, and that he was abused and discriminated against while imprisoned at the Metropolitan Detention Center in Brooklyn, N.Y. After 150 days of imprisonment, Iqbal was released and deported; he was never charged. . . . A 2nd Circuit panel ruled in 2007 that Iqbal's allegations were sufficient under current pleading standards to get past the summary dismissal stage, though Judge Jon Newman, who wrote the decision, noted there was "considerable uncertainty" about those standards. In a concurrence, Judge Jose Cabranes fretted that the panel's decision would provide a "blueprint" for other plaintiffs "to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes."

Supreme Court Rejects Exxon Appeal in Human Rights Case

Christopher S. Rugaber, The Associated Press

6-16-08 -- Exxon Mobil Corp. has failed to convince the Supreme Court to halt a human rights lawsuit against it. . . . The justices, without comment, on Monday rejected the energy company's appeal of a ruling on a 2001 lawsuit filed by International Rights Advocates on behalf of 11 villagers in Indonesia's Aceh province. . . . The suit, which did not seek a specific amount of damages, alleged that members of the Indonesian military committed rampant human rights abuses against the villagers while under Exxon's employ to guard a natural gas facility. The Indonesian government has been accused of brutally repressing separatist efforts in Aceh in the 1990s. . . . Lawyers for Exxon argued in a federal district court that the case should be dismissed because it involves issues of international relations that should be left to the executive branch. . . . The district court dismissed parts of the suit that relied on federal law, but allowed state-law claims to proceed. The lower court also dismissed claims against a natural gas firm owned by the Indonesian government.

Supreme Court Says Guantanamo Detainees Have Right to Challenge Detention

Scalia in dissent: 'The nation will regret what the Court has done today'

Tony Mauro, Legal Times

6-13-08 -- The Supreme Court on Thursday rejected the latest effort by the Bush administration and Congress to deny Guantanamo detainees the right to appeal their imprisonment in U.S. courts. . . . In a dramatic decision in Boumediene v. Bush that divided the Court 5-4, the justices struck down parts of the 2006 Military Commissions Act that stripped U.S. courts of jurisdiction over the habeas petitions filed by foreign nationals detained at the Guantanamo Bay facility in Cuba. The ruling ordered swift habeas hearings for the detainees. . . . Within hours of the decision, Royce Lamberth, chief judge of the U.S. District Court for the District of Columbia, where the petitions are pending, said, "I expect we'll call in the lawyers from both sides to see what suggestions they have for how we can approach our task most effectively and efficiently." As many as 200 detainees have habeas petitions pending, many of which were being held in anticipation of the Boumediene decision. . . . The Justice Department declined comment, with a spokesman saying the complex decision was still under review. At a press conference in Rome, President George W. Bush said, "We'll abide by the Court's decision. That doesn't mean I have to agree with it." Bush said further legislation might be considered.

High Court Rejects Sentencing Notification Rule

The Associated Press

6-13-08 -- The Supreme Court ruled Thursday that judges do not have to notify defendants and prosecutors when contemplating a prison term outside the range called for in federal sentencing guidelines. . . .  The 5-4 decision dealt with the fact that the guidelines are no longer mandatory, giving judges more flexibility in sentencing. . . . The concerns that prompted notification in a world of mandatory sentencing guidelines no longer provide a basis for extending the notification rule, Justice John Paul Stevens wrote in the majority opinion. . . . In dissent, Justice Stephen Breyer wrote "fairness justifies notice." . . . The decision came in the case of Richard Irizarry, who threatened to kill his ex-wife in Alabama and her relatives. . . . Irizarry was convicted and sentenced to 60 months in prison, nine months more than the guidelines' maximum and the maximum allowed under the law. The judge said the extra prison time was based on Irizarry representing a future danger to his ex-wife and family.

Supreme Court rejects limits on FOIA lawsuits

Associated Press

6-12-08 -- The Supreme Court has rejected limits on Freedom of Information Act lawsuits that seek the same information as earlier legal actions. . . . In a unanimous ruling, the justices said Thursday a lower court was wrong to conclude that a vintage airplane buff could not sue for the same documents that were sought by a fellow lover of antique aircraft. . . . Brent Taylor is executive director of the Antique Aircraft Association and a mechanic who restores vintage airplanes. He sued the Federal Aviation Administration for the plans for an antique F-45 plane. . . . Taylor filed his lawsuit less than a month after an appeals court issued its ruling against another member of the same organization who sought the same plans. . . . Government watchdogs and press freedom groups backed Taylor. They worried that government agencies would try to short-circuit efforts by people who request similar records for different reasons. . . . The case is Taylor v. Sturgell, 07-371.

Child-Abuse Claims vs. Parents' Rights

Supreme Court mulls whether to take a suit accusing Illinois of forcing families to give up rights.

By Warren Richey | Staff writer of The Christian Science Monitor

6-12-08 -- The US Supreme Court is being asked to determine whether procedures used in Illinois to investigate allegations of child abuse or neglect violate the fundamental rights of parents. . . . The case arises at a legal crossroads between the government's interest in moving quickly to safeguard children from abuse or neglect and the right of parents to raise and maintain a family without undue government interference. . . . The high court is scheduled to consider whether to take up the case, Dupuy v. McEwen, at its private conference Thursday. An order agreeing or refusing to hear the appeal could come as early as Monday. . . . State procedures to investigate allegations of child abuse have been a topic of national concern after more than 400 children from a polygamist group's ranch in west Texas were taken from their parents and held for nearly two months in foster care. The Texas Supreme Court later ordered state officials to return the children to their parents while the investigation continues. . . . At issue in the Illinois case is whether state officials can use the potential threat of placing children in foster care as a means to pressure parents to forfeit their parental rights. . . . Agents with the Illinois Department of Children and Family Services (DCFS) routinely advise parents in the initial stage of an abuse investigation that their children may be taken into state custody unless the parents agree to a state-imposed "safety plan." Such plans can require the accused parent or parents to leave the home immediately and cease all unsupervised contact with their children for the duration of the investigation, according to a lawsuit filed by a group of Illinois parents. . . . Imposition of the safety plan can be authorized by a single unconfirmed tip received via an anonymous child-abuse hot line, the suit says.

Government Loses High Court Case on Paralegal Costs

Marcia Coyle, The National Law Journal

6-11-08 -- A small security business, the victor in a long, expensive battle with the federal government over back wages, has won a U.S. Supreme Court ruling that "prevailing parties" under a fee shifting law can recover paralegal fees from the government at the market rate for those services. . . . In Richlin Security Service Co. v. Chertoff, No. 06-1717, the justices unanimously rejected all of the government's arguments that the Equal Access to Justice Act limited recovery of paralegal fees to the attorney's cost -- which was lower than the billed rate. . . . "It's important that clients, particularly those who take most advantage of EAJA -- Social Security claimants, veterans, disability claimants and small businesses -- be able to recover paralegal fees because those clients heavily use paralegals in many cases," said Richlin's high court counsel, Brian Wolfman, director of Public Citizen Litigation Group. . . . "The results the government was seeking would have made litigation of social security cases, veterans' benefits claims and small business cases, more expensive, which is exactly the opposite of what Congress was trying to achieve under EAJA," he added.

Supreme Court Limits Companies' Ability to Collect Multiple Royalties on Their Patents

Tony Mauro, Legal Times

6-10-08 -- The Supreme Court on Monday breathed new life into the doctrine of patent exhaustion -- thereby limiting the power of patent-holders over "downstream" transactions. . . . In a unanimous ruling authored by Justice Clarence Thomas, the Court stood firm behind the 150-year-old doctrine under which "the sale of a patented item terminates all patent rights to that item." In other words, the patent holder has little or no power to restrict what the purchaser does with the patented items after the first sale. . . . The ruling came in the case of Quanta Computer v. LG Electronics. The dispute arose over efforts to control what purchasers of Intel Corp. components did with those parts. The Korean company LG had licensed to Intel a series of patents on computer-related methods for use with Intel microprocessors and chipsets. Intel agreed to inform its customers that the LG licenses do not extend to any combination of Intel parts with non-Intel parts. Nonetheless Quanta, a Taiwan-based computer maker that bought Intel parts, combined them with non-Intel parts in ways that exercised the LG patents. LG sued Quanta for patent infringement.

Supreme Court Will Again Review $79.5M Punitive Damages Award Against Philip Morris

The Associated Press

6-10-08 -- The Supreme Court said Monday it will review a $79.5 million punitive damages judgment against Marlboro-maker Philip Morris for the third time. . . . The justices have twice struck down the award to the family of a longtime smoker of Marlboros, made by Altria Group Inc.'s Philip Morris USA. . . . Oregon courts have repeatedly upheld the judgment. The most recent ruling, in January, followed a high court decision last year that said jurors may punish a defendant only for harm done to someone who is suing, not other smokers who could make similar claims. . . . The justices will consider only whether the Oregon Supreme Court in essence ignored the U.S. high court's ruling, not whether the amount of the judgment is constitutionally permissible. . . . The case will be argued in the fall. . . . Altria associate general counsel Murray Garnick applauded the justices' decision to review the case again. . . . "The Court has previously instructed the Oregon appellate courts to properly apply the constitutional standards to the punitive damage award in this case. The Oregon courts have not done so, and so the Supreme Court has agreed to review the case once again," Garnick said.

High Court Deals Government Three Losses on Clement's Last Day as SG

Two pro-defendant decisions will make prosecuting money laundering more difficult

Tony Mauro, Legal Times

6-3-08 -- Paul Clement began his final day as solicitor general Monday morning at the Supreme Court, awaiting the Court's traditional farewell from the bench for those in his position. . . . But before the fond adieu came, the Court announced three opinions -- all of them losses for Clement as the government's top advocate before the Court. . . . And two of those were pro-defendant decisions that will make money-laundering prosecutions more difficult -- proving, if any proof was needed, that a conservative Supreme Court does not always favor the government in criminal cases. One decision was written by Justice Clarence Thomas and the other by Justice Antonin Scalia -- the Court's most conservative members. . . . "Their commitment to legal and structural principles trump any anti-defendant instincts that some pundits assume they have," Ohio State University law professor Douglas Berman wrote on his Sentencing Law and Policy blog. "Anyone inclined to make quick or broad assertions about jurisprudential and political trends in the Roberts Court needs to take a close look at all the unpredictable stuff going on throughout the Court's criminal docket." . . . In Cuellar v. United States, Thomas wrote for a unanimous Court that the mere fact that money being transported across U.S. borders was concealed does not constitute a violation of the money-laundering statute. The government has to prove additionally that the concealment was designed to hide the source, ownership, or control of the money, the Court said. . . . In United States v. Santos, a divided 5-4 Court led by Scalia gave a narrow interpretation of the money-laundering law's prohibition against the use of "proceeds" of criminal activities for various purposes. Giving a ringing endorsement to the rule of lenity, Scalia said the ambiguous word "proceeds" should be interpreted to mean "profits," not "receipts." "The tie must go to the defendant," Scalia said.

Ruling Against Type

As two decisions show, 'conservative' and 'liberal' don't mean everything at the Supreme Court.

Washington Post Editorial

6-3-08 -- TWO SUPREME Court decisions handed down yesterday point to the difficulty of predicting outcomes based on political leanings. . . . The justice who wrote a four-member plurality opinion in one case concluded that defendants were entitled to leniency; as a result, the lengthy money laundering sentences of two men who ran an illegal gambling operation in Indiana were thrown out. The justice writing in the second case concluded that the money laundering statute had been improperly used to convict a man trying to cross from the United States into Mexico with $81,000 hidden under the floorboards of a car. Both cases were defeats for the government. . . . What gives? Has there been a liberal coup on the court? Not quite. Justice Antonin Scalia, a staunch conservative, authored the decision in United States v. Santos in the case of the gambling duo; Justice Clarence Thomas, another conservative, penned the decision in Cuellar v. United States involving the cash-carrying driver. Both justices reached "liberal" results using arguably "conservative" approaches.

May 2008

High Court OKs Suits Against Retaliation Over Workplace Claims

Legal Times

5-28-08 -- In a pair of workplace discrimination cases, the Supreme Court on Tuesday made it easier for workers to sue employers who retaliate against them for reporting bias. One ruling, affecting private employers, will give employees more time to file suit and larger potential damage awards when they claim employer retaliation than they had before. In the other case, the justices ruled that the Age Discrimination in Employment Act also covers retaliation claims brought by federal workers against their employers. . . . One ruling, affecting private employers, will give employees more time to file suit and larger potential damage awards when they claim employer retaliation than they had before. The 7-2 decision was titled CBOCS West Inc. v. Humphries. . . . Under Title VII of the Civil Rights Act, Hedrick Humphries, an assistant manager at an Illinois Cracker Barrel restaurant, was deemed to have filed his racial discrimination complaint too late. He said he had been fired because he was black and because he had complained about racial bias directed against a co-worker. Under Title VII, once the Equal Employment Opportunity Commission has issued a "right to sue" letter, plaintiffs like Humphries have 90 days to file suit in federal court. Damages are also subject to caps depending on the size of the company.

Justices Uphold Retaliation Lawsuits

Federal, Private Workers Have Same Protections

By Robert Barnes and William Branigin, Washington Post Staff Writers

5-28-08 -- The Supreme Court said yesterday that workers who claim that they faced retaliation for complaining about racial or age discrimination may sue in federal court, and made clear that federal employees have the same protection as their counterparts in the private sector. . . . In a pair of decisions that drew support from both liberal and conservative justices, the court said its past decisions compelled the view that federal laws that protect workers from discrimination also protect them from retaliation for filing complaints, even if the words of the statute do not specifically say so. . . . "It's a huge victory for federal workers, who will enjoy the same protection from retaliation that private-sector employees receive," said Joseph Guerra, who argued the case for postal worker Myrna Gomez-Perez. He said that more than 1 million federal workers are covered by the Age Discrimination in Employment Act (ADEA).

A Discomfiting Threat to Free Speech

New York Times Editorial

5-21-08 -- The Supreme Court upheld a law on Monday that sweeps too broadly in its attempt to ban child pornography, which is repellent and illegal. Those who traffic in it must be punished, but this law is drawn in a way that also criminalizes speech that should be protected by the First Amendment. . . . .The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court’s analysis undermines protections for political speech. . . . The court has traditionally been extraordinarily careful, as it must be, both to protect children and the right to free expression. It has upheld bans on obscenity and on sexually explicit photos of children that do not meet the legal standard of obscenity. The court has emphasized, however, that these free-speech exceptions are narrow and that it would be vigilant about striking down restrictions that go beyond them. . . . In 2002, the court struck down parts of the Child Pornography Protection Act that banned images that appeared to be explicit depictions of children, even if they were actually pictures of adults or computer-generated images. Banning images in which there are no real children, the court held, violates the First Amendment.

Justices Rule Against So-Called 'Millennium Bomber'

By William Branigin, Washington Post Staff Writer 

5-19-08 -- The Supreme Court ruled today that the so-called "Millennium Bomber" violated a federal explosives law that increased his prison sentence when he entered the country in December 1999 as part of a plot to bomb Los Angeles International Airport. . . . In an 8-1 decision, the court upheld the conviction of Ahmed Ressam, an Algerian member of al-Qaeda, on one of nine charges that resulted in a 22-year prison sentence. Justice Stephen G. Breyer cast the lone dissenting vote. . . . The government considered the case a potentially crucial one for terrorism prosecutions, and Attorney General Michael B. Mukasey personally argued it in March, making his first appearance before the Supreme Court. . . . At issue was a federal law that mandates a 10-year prison term for anyone who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." The law gives prosecutors an extra tool in terrorism cases because it defines explosives broadly and provides for a mandatory sentence.

Supreme Court OKs tax breaks for muni bonds, overturns Kentucky case

Denver Business Journal

5-19-08 -- The U.S. Supreme Court ruled on Monday that states could continue to give tax breaks on in-state municipal bonds, while taxing interest on out-of-state bonds. . . . Colorado is among the states that exempt interest on in-state municipal bonds. . . . "This is good news for individual Colorado municipal bond investors," said Ron Speaker, president and CEO of Equus Private Wealth Management in Carbondale. "They can again invest with confidence." . . . The 7-2 decision in Kentucky v. Davis maintains the status quo, and is a relief for participants in the United States' $2.5 trillion municipal bond market. Many had feared turmoil if the high court had upheld a Kentucky court ruling that the tax breaks were unconstitutional, upending a century of tax practice.

Supreme Court upholds child porn law

by James Oliphant

5-19-08 -- The Supreme Court Monday upheld a federal law cited by authorities as an important tool to combat online child pornographers. . . . In the 7-2 ruling, the court dismissed arguments that the PROTECT Act, passed by Congress in 2003, was too broadly written and could make it a crime to possess or pander images that aren't sexually graphic. . . . In the opinion written by Justice Antonin Scalia, the court acknowledged that the statute also criminalized the pandering of kiddie porn images, not simply the possession of them, meaning that it regulates speech as well as conduct, saying: . . . Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network. Thus, an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute. . . . But Scalia said the category of speech the statute addresses is fair game for regulation, writing "that offers to give or receive what it is unlawful to possess have no social value and thus, like obscenity, enjoy no First Amendment protection."

Execution in officer's death stayed

U.S. Supreme Court will hear appeal concerning performance of lawyers

By Frank Green, Times-Dispatch Staff Writer

5-14-08 -- An execution date for Edward Nathaniel Bell for the 1999 capital murder of a Winchester police officer has been scrubbed for the second time this year. . . . The U.S. Supreme Court agreed yesterday to hear Bell's appeal, staying his scheduled July 24 execution. A date for arguments will likely not be set until October, and a decision by the justices is not expected until months later. . . . Bell, 42, murdered Sgt. Ricky Lee Timbrook in Winchester. Timbrook was shot in the head while pursuing Bell on foot. . . . Bell was to have been executed April 8, but that was delayed until July 24 by Gov. Timothy M. Kaine. At the time, there had been no executions in the country since Sept. 25 while the justices considered a challenge to the constitutionality of lethal injection. The Supreme Court allowed executions to resume on April 16. . . . Bell's appeal concerns the performance of his trial lawyers and is not about lethal injection. There are conflicting decisions among appeals courts on the technical issue raised by Bell, and the justices may resolve the matter.

Supreme Court Recusals Hit Home in Controversial
Apartheid Suit

Tony Mauro, Legal Times

5-13-08 -- For want of a quorum, the Supreme Court on Monday allowed a controversial lawsuit brought by South African citizens to proceed against American and foreign corporations for their role in perpetuating apartheid. . . . The companies, backed by the Bush administration and the South African government, had asked the high court to reverse a 2007 ruling by the 2nd U.S. Circuit Court of Appeals that said the suit could proceed under the Alien Tort Statute. . . . But in the order released Monday in American Isuzu Motors v. Ntsebeza, four justices -- Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer and Samuel Alito Jr. -- indicated they had recused themselves from acting on the petition, depriving the Court of the required six-justice quorum. Under the law, when the Court lacks a quorum, the lower court ruling is effectively affirmed -- which means the case remains alive. . . . Roberts, Breyer and Alito appear to have recused because they own stock in companies that are defendants in the suit, while Kennedy may have bowed out because his son Gregory is a managing partner at Credit Suisse, another defendant.

Court rules that magistrate may preside

By Pete Yost

5-12-08 -- (AP) — The Supreme Court ruled Monday that a federal magistrate may preside over jury selection in criminal cases, as long as the attorney for a defendant explicitly permits it. . . . The 8-1 decision came in a drug-trafficking case from Laredo, Texas, where a lawyer for defendant Homero Gonzalez allowed a magistrate to oversee the questioning of prospective jurors. On appeal, Gonzalez argued that the court should have obtained his consent before a magistrate presided. . . . In the majority opinion, Justice Anthony Kennedy said federal law allows the practice and that "this is not a case where the magistrate judge is asked to preside or make determinations after the trial has commenced." Justice Clarence Thomas dissented, saying, "Whatever their virtues, magistrate judges are no substitute" for U.S. District Court judges. . . . U.S. District judges are appointed by the president, confirmed by the Senate, have life tenure and their salaries cannot be reduced. Magistrates, appointed by U.S. District judges, have no such protection.

April 2008

Supreme Court Upholds Photo ID Law for Voters in Indiana

Mark Sherman, The Associated Press 

4-28-08 --  The Supreme Court ruled Monday that states can require voters to produce photo identification without violating their constitutional rights, validating Republican-inspired voter ID laws. . . . In a splintered 6-3 ruling, the Court upheld Indiana's strict photo ID requirement, which Democrats and civil rights groups said would deter poor, older and minority voters from casting ballots. Its backers said it was needed to prevent fraud. . . . It was the most important voting rights case since the Bush v. Gore dispute that sealed the 2000 election for George W. Bush. But the voter ID ruling lacked the conservative-liberal split that marked the 2000 case. . . . The law "is amply justified by the valid interest in protecting 'the integrity and reliability of the electoral process,'" Justice John Paul Stevens said in an opinion that was joined by Chief Justice John Roberts and Anthony Kennedy. Stevens was a dissenter in Bush v. Gore in 2000. . . . Justices Samuel Alito, Antonin Scalia and Clarence Thomas also agreed with the outcome, but wrote separately.

High Court: Do Health Insurance Plans Have Conflict Of Interest?

MetLife withdrew the long-term disability benefits of an Ohio woman after she got better.

By Warren Richey | Staff writer of The Christian Science Monitor

4-25-08-- Health insurance is a major issue under debate in the race for the presidency, but this week a controversial aspect of that business arrives at the US Supreme Court. . ..  On Wednesday, the justices are set to examine how judges should approach policyholder disputes involving companies that both evaluate and pay medical disability claims administered under a federal retirement income law. . . . Do such companies operate in a conflict of interest between caring for their policyholders and enriching their shareholders? If such a conflict exists, how rigorously should federal judges examine decisions to deny benefits? . . . Federal appeals courts are sharply divided on how to answer those questions. The high court will confront the issue in the case of an Ohio woman diagnosed with a severe heart condition who was granted long-term disability benefits that were later withdrawn by the Metropolitan Life Insurance Company (MetLife). . . . Because of her condition, the woman, Wanda Glenn, was found to be "totally disabled." She began receiving disability benefits. She also followed her physician's advice and a treatment program, and her health began to improve. When these improvements were reflected in her doctor's reports, MetLife cited the reports and withdrew the benefits. The company said Ms. Glenn was not totally disabled and could find sedentary work.

Supreme Court Considers Closely Watched Case That Could Help Workers Claim Disability Benefits

Christopher S. Rugaber, The Associated Press 

4-24-08-- The Supreme Court struggled Wednesday with how much weight to give an insurance company's potential conflict of interest when it denies an employee's health or disability benefits claim. . . . The lawyer representing the woman who sued MetLife Inc. over a disability claim argued that insurance companies have a financial incentive to deny claims. That conflict of interest should weigh heavily in employees' favor when they challenge benefit claims in court, Joshua Rosenkranz said in court papers. . . . The dispute is being closely watched by insurance companies and business groups. Depending on how the justices rule, the dispute could make it easier for employees to win benefit payments in court. . . . Disability benefits are a big business. Disability insurance plans cover 28 million Americans, and insurers paid more than $7.2 billion in long-term disability claims to more than 500,000 people in 2006, according to court papers filed by the U.S. Chamber of Commerce, America's Health Insurance Plans and the American Benefits Council.

Supreme Court Justices Appear Torn Over 'Millionaires' Amendment'

Tony Mauro, Legal Times 

4-23-08 -- Supreme Court justices appeared torn Tuesday over the constitutionality of the so-called "Millionaires' Amendment," a law that allows the opponents of rich, self-financing candidates for Congress to receive higher contributions from individuals and parties than would otherwise be allowed. . . . Led by Justice Antonin Scalia, several justices expressed doubt that the First Amendment allows government to manipulate campaign speech in this way, solely to "level the playing field" among candidates for office. "Do you think we should trust our incumbent senators and representatives to level the playing field for us?" Scalia asked at one point. . . . At another, Scalia asked whether, under the same theory, Congress could pass a law to help those who go up against candidates who are eloquent. "You make him talk with pebbles in his mouth, or what?" Even though the law does not cover presidential campaigns, the 2008 campaign for the White House made its way into the courtroom nonetheless. . . . Andrew Herman, the lawyer arguing against the provision in the case Davis v. Federal Election Commission, was suggesting that not all millionaires are such formidable candidates that their opponents need extra help.

Court to hear case that could help workers claim benefits

By Christopher S. Rugaber, AP Business Writer

4-23-08 -- When Wanda Glenn first sought disability benefits from MetLife Inc. in 2000, she "never in a million years" expected it would end up as a Supreme Court case. . . . But on Wednesday, the justices will hear oral arguments in a dispute that is being closely watched by insurance companies and business groups. Depending on how the justices rule, the case could make it easier for employees to win health and disability benefit payments in court. . . . Disability benefits are a big business. Disability insurance plans cover 28 million Americans, and insurers paid more than $7.2 billion in long-term disability claims to more than 500,000 people in 2006, according to court papers filed by the U.S. Chamber of Commerce, America's Health Insurance Plans and the American Benefits Council.

Supreme Court Turns Down Exxon's Appeal of $112 Million Verdict

Christopher S. Rugaber, The Associated Press 

4-22-08 -- Exxon Mobil Corp. suffered a defeat at the Supreme Court Monday, as the justices refused to consider an appeal by the oil giant of a $112 million damage award in an environmental lawsuit. . . . The court's decision Monday, without comment, effectively ends the litigation. . . . The case began in 1997 when a former Louisiana judge, Joseph Grefer, and his family sued Exxon, alleging that a contractor had contaminated the family's land with radioactive waste. . . . The contractor cleaned pipes for Exxon Mobil and other oil companies and left the waste, which occurs naturally as a result of oil and gas production, on the property. None of the Grefers were sickened by the waste. . . . The Grefers were initially awarded $1 billion in punitive damages and $56 million in compensatory damages by a Louisiana jury. The Louisiana appeals court ultimately reduced the punitive award to $112 million.

Supreme Court Lifts Stays of Executions for Three Death-Row Inmates

Michael Graczyk, The Associated Press

4-22-08 -- The Supreme Court, fresh off its decision that lethal injection was a constitutional method of execution, lifted reprieves Monday for three death-row inmates around the country, including a Texas man who was waiting only a few feet from the death chamber when his life was temporarily spared. . . . Prosecutors in the Texas case and one each from Alabama and Mississippi were moving quickly to set new execution dates after a seven-month national hiatus. . . . The Supreme Court blocked the execution of Carlton Turner Jr., from suburban Dallas, and others last fall while they considered whether Kentucky's lethal injection procedure, similarly used by other death penalty states, was unconstitutionally cruel. . . . The high court rejected the Kentucky case last week in a 7-2 vote. . . . Besides Turner, who killed his parents, the Court Monday cleared the way for the executions of Thomas Arthur of Alabama and Earl Wesley Berry of Mississippi. . . . Turner won his delay late Sept. 27 as he waited in a holding cell a few feet from the nation's busiest death chamber in Huntsville, Texas, where 26 convicted killers were executed last year.

A Radioactive Petition Lands Before the Supreme Court

Tony Mauro, Legal Times 

4-18-08 -- The solicitor general's name on a petition before the Supreme Court carries a lot of weight all by itself. But when it is joined by the top lawyers for the Departments of State, Defense, Commerce and Energy, it is likely to get the full attention of the justices and their law clerks. . . . Those are the names on a petition that will be considered at the Court's conference for possible grant or denial as early as the week of April 21. The case, United States v. Eurodif, involves the import of low-enriched uranium (LEU), a critical ingredient in the production of nuclear power. Billed as the first time the United States has brought an anti-dumping case to the Supreme Court, it also gives the high court a chance to take a skeptical look at another ruling by the U.S. Court of Appeals for the Federal Circuit. (That court's patent decisions have not fared too well at the hands of the Supreme Court in recent years.) . . . The anti-dumping statute allows the imposition of special duties on foreign imports that are sold in the United States at less than fair value. When American utilities simply buy LEU from the enricher, no one disputes that the law comes into play. But in the case before the high court, the utilities sent unenriched uranium to the enricher, paid the enricher for "separative work units," and received back LEU.

Supreme Court Upholds Kentucky's Lethal Injections

Stevens becomes first member of high court to openly oppose capital punishment since Blackmun's 1994 retirement

Tony Mauro, Legal Times 

4-16-08 -- The de facto nationwide moratorium on executions for the last six months is likely at an end as a result of the Supreme Court's 7-2 decision Wednesday upholding Kentucky's protocol for lethal injections. . . . Two death row inmates had challenged the procedure used by Kentucky and 34 other states, claiming that if improperly administered, it could cause excruciating pain before death, in violation of the Eighth Amendment ban on "cruel and unusual" punishment. . . . But Chief Justice John Roberts Jr., writing for himself and two other justices in the majority, said the inmates had not established the kind of "objectively intolerable risk of harm" necessary to render a procedure unconstitutional. . . . Within hours of the decision, Virginia Gov. Tim Kaine lifted that state's moratorium on executions, which he had imposed while the Kentucky case was pending. . . . The splintered decision in Baze v. Rees leaves open possible future challenges to lethal injection, however, and was notable also for the fact that Justice John Paul Stevens declared that he now views the death penalty as unconstitutional. Stevens, who turns 88 on April 20, becomes the first member of the high court to openly oppose capital punishment since Harry Blackmun's retirement in 1994.

Justice Stevens Renounces Capital Punishment

Supreme Court Memo By Linda Greenhouse

When Justice John Paul Stevens intervened in a Supreme Court argument on Wednesday to score a few points off the lawyer who was defending the death penalty for the rape of a child, the courtroom audience saw a master strategist at work, fully in command of the flow of the argument and the smallest details of the case. For those accustomed to watching Justice Stevens, it was a familiar sight. . . . But there was something different that no one in the room knew except the eight other justices. In the decision issued 30 minutes earlier in which the court found Kentucky’s method of execution by lethal injection constitutional, John Paul Stevens, in the 33rd year of his Supreme Court tenure and four days shy of his 88th birthday, had just renounced the death penalty. . . . In an opinion concurring with the majority’s judgment, Justice Stevens said he felt bound to “respect precedents that remain a part of our law.” But outside the confines of the Kentucky case, he said, the time had come to reconsider “the justification for the death penalty itself.” . . . He wrote that court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.

Supreme Court Sends Tax Case Back to Illinois

Also, justices rule in Clintwood Elkhorn Mining case

Tony Mauro, Legal Times

4-16-08 -- Tuesday was Tax Day at the Supreme Court as it was in the rest of the nation, with the justices handing down two tax rulings, including one that could affect big corporations facing tax bills in several states. . . . Chief Justice John Roberts Jr. took note of the April 15 coincidence as he opened the Court session, announcing that, "Remarkably enough, we have two tax cases to announce today." . . . The first was MeadWestvaco Corp. v. Illinois Department of Revenue, closely watched by revenue-thirsty states seeking to tax multistate and international corporations. . . . The dispute arose when Ohio-based Mead sold its LexisNexis research service in 1994, realizing $1.5 billion in capital gain. Illinois assessed Mead $4 million in taxes for what it believed was its apportioned share of taxes on the gain. Mead, now MeadWestvaco, appealed, but Illinois won in state courts under a broad theory that viewed LexisNexis as serving the "operational purpose" of Mead, even though it was not fully integrated or centrally managed as part of Mead's "unitary business."

Supreme Court Restricts the Taxation of Income of Companies Based Out of State

By Linda Greenhouse

4-16-08 -- I A unanimous Supreme Court decision on Tuesday limited the ability of states to tax the income that companies with out-of-state headquarters earn from their investments in businesses in their home state. . . . The ruling vacated a decision of the Appellate Court of Illinois in a case that drew the attention of two dozen states and many multistate corporations. . . . The Illinois court had upheld the state’s right to tax the $1 billion in capital gains earned by the Ohio-based MeadWestvaco Corporation, on the $1.5 billion sale in 1994 of an Illinois-based subsidiary, the Lexis/Nexis online research service. . . . MeadWestvaco, arguing that Illinois did not have the right to reach across state lines to tax the passive income from what amounted to an arm’s-length investment, paid the $4 million tax bill under protest and sued for a refund. . . . Although the amount of tax at issue was relatively small, given MeadWestvaco’s huge gain from an initial investment of $6 million in the Data Corporation, the company that became Lexis/Nexis, the principle at stake was considered an important one. . . . Over many years, the Supreme Court has developed rules to permit states to tax the portion of an out-of-state company’s revenue that reflects its home-state operations, while at the same time shielding multistate companies from duplicate taxation.

Justices let stand youth's 30-year prison term

By James Vicini, Reuters

4-14-08 -- The U.S. Supreme Court let stand on Monday a sentence of 30 years in prison for a youth who killed his grandparents when he was 12, rejecting his appeal arguing that it was cruel and unusual punishment. . . . Attorneys for Christopher Pittman said he is the nation's only inmate serving such a harsh sentence for a crime committed at such a young age. Pittman was tried as if he were an adult. The high court declined to hear his appeal without any comment. . . . In 2005 a jury convicted Pittman of the double murders committed four years earlier when he shot his grandparents with a shotgun as they slept in bed and then set fire to their home in Chester, South Carolina. . . . He received the minimum sentence of 30 years in prison, without the possibility of parole. . . .Defense lawyers argued the antidepressant drug he was taking led him to commit the murders. But the South Carolina Supreme Court rejected that argument and others raised by Pittman's attorneys, and upheld his conviction and sentence.

Ten Commandments back in court

The Supreme Court will consider whether putting them in a park means giving other religions a place in the sun too.

L.A. Times Editorial

04-09-08 -- When the Supreme Court ruled 46 years ago that official prayers in public schools violated the 1st Amendment, it infuriated those who claimed that public institutions should reflect the fact that this is "one nation, under God" -- the God of the Jewish and Christian Scriptures, that is. . . . In recent years, however, supporters of religion in the "public square" often have taken a different tack, arguing not that this is a Christian (or Judeo-Christian) nation but that individual believers have a free-speech right to express their religious views on government property. For example, the American Center for Law and Justice, a public-interest law firm founded by religious broadcaster Pat Robertson, is "dedicated to the ideal that religious freedom and freedom of speech are inalienable, God-given rights." . . . What government may not do, the high court said as long ago as 1947, is "set up a church [or] pass laws which aid one religion, aid all religions, or prefer one religion over another." Given that precedent, the state of Texas argued a few years ago that a Ten Commandments monument on the grounds of the state Capitol didn't violate the 1st Amendment because it was part of a "museum-like setting" that featured other messages. Besides, the "driving purpose" of the display was to symbolize secular law. By a 5-4 vote, the court upheld the display.

Property group appeals to Supreme Court in Atlantic Yards case

by The Associated Press

04-01-08 -- A group of property owners and tenants facing eviction to make room for a new basketball arena in Brooklyn for the New Jersey Nets has petitioned the U.S. Supreme Court to hear its case. . . . The Atlantic Yards project calls for 16 skyscrapers, an 18,000-seat arena for New Jersey's basketball franchise, and thousands of apartments. The area currently is occupied by a rail yard, industrial buildings, and some businesses and homes. . . . An appeals court in February rejected a lawsuit by the 11 property owners and tenants. The plaintiffs had argued that using eminent domain for the project would violate the Constitution because it would primarily benefit the developer, not the public. . . . Originally, 334 people lived in homes and apartment buildings on the site. Now, about 35 remain, according to Develop Don't Destroy, a non-profit community-run group in Brooklyn. The rest have either been bought out by the developer or evicted from apartment buildings the company controls. The number of active businesses on the site has dropped from 33 to seven.. . . Nets principal owner and project developer Bruce Ratner had called the lower court's decision a victory for the public good that would bring thousands of affordable homes and needed jobs to Brooklyn.

Supreme Court Upholds Delaware's Veto Power Over British Petroleum Project

High court appointed a special master to sift through thousands of documents and hear arguments from both sides

Tony Mauro, Legal Times

04-01-08 -- British Petroleum will have to find another site for a planned $600 million natural gas terminal after the Supreme Court on Monday upheld Delaware's right to nix the plan -- even though the bulk of it would sit on New Jersey soil. . . . By a 6-2 vote, the Court ruled that Delaware can exercise what amounts to veto power over the project because a 2,000-foot pier would extend into parts of the Delaware River owned by Delaware. . . . The high court rejected arguments that because the terminal, known as Crown Landing, would be mainly built in Logan Township, N.J., the Garden State had exclusive authority over all parts of it, including the wharf extending into Delaware. . . . The two justices born in New Jersey, Antonin Scalia and Samuel Alito Jr., were the only members of the Court to side with New Jersey in the dispute. Justice Stephen Breyer recused himself. According to his latest financial disclosure form, Breyer owns between $15,001 and $50,000 in BP stock.

Supreme Court Agrees to Take Free Speech Case on Religious Monument

Justices also agree to step into case involving payroll deductions for labor union political activity

Pete Yost, The Associated Press

04-01-08 -- The Supreme Court on Monday agreed to step into two free speech cases, one involving a church that wants to place a religious monument in a park and the other on payroll deductions for labor union political activity. . . . Officials in Pleasant Grove City, Utah, asked the court to step into the lawsuit brought by the religious group known as Summum, saying that if the group prevails, governments would be inundated with demands to display donated monuments. . . . The dispute stems from Pleasant Grove City's refusal to allow the display of a "Seven Aphorisms of Summum" monument in the same park that is the home for a Ten Commandments monument donated by the Fraternal Order of Eagles 47 years ago. . . . The 10th U.S. Circuit Court of Appeals in Denver ruled in favor of the church, saying the monument remains the private speech of the donor and that the park is a public forum. . . . The conservative American Center for Law and Justice is representing Pleasant Grove City in the case.

WISCONSIN

Judges can still punish acquitted defendants

In refusing to consider a Wisconsin man's appeal, the Supreme Court says jurists can issue prison sentences even if the jury has cleared a defendant of certain crimes.

By David G. Savage, Los Angeles Times Staff Writer

04-01-08 -- The Supreme Court declined Monday to reconsider a legal rule that might surprise most Americans: Judges can punish defendants for certain crimes even after a jury has acquitted them of those charges. . . . In recent years, the justices have described the right to jury trial as one of the bedrock principles of American law. At the same time, they have been unwilling to say that a jury's not-guilty verdict on some charges means the defendant cannot be punished. Instead, the court has said judges may take into account "acquitted conduct" when they decide on a prison term. . . . The case of Mark Hurn of Madison, Wis., provides a stark example of the rule. . . . Hurn was given an additional 15 years in prison for possessing crack cocaine, even though a jury acquitted him of the charge. He was convicted of having powder cocaine in his house, a charge that would warrant between two and three years in prison under federal sentencing guidelines. . . . But he was sentenced to nearly 18 years in prison, as though he had been convicted on both counts.

March 2008

Justice loses challenge on Hill raid

By Jerry Seper

03-31-08 -- The U.S. Supreme Court today refused to hear an appeal by the Justice Department to overturn a court ruling saying the May 20, 2006, raid by FBI agents of Rep. William J. Jefferson's Capitol Hill office was unconsitututional. . . . In a major victory for the Louisiana Democrat, the ruling means that thousands of pages of documents and other items seized in the raid, none of which have been turned over to prosecutors, will have to be reviewed to determine if they are privileged under the Speech or Debate Clause — a constitutional privilege that protects lawmakers from legal action for legislative activities. . . . In August, a federal appeals court panel ruled that FBI agents violated Jefferson's constitutional rights when they raided his office in a bribery and corruption investigation. The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit required the Justice Department to return privileged documents taken from the Rayburn Building, but did not include the $90,000 FBI agents found in the freezer of the lawmaker's Washington home.

Supreme Court Hears Case Involving Mentally Ill Defendants Representing Themselves

Tony Mauro, Legal Times

03-27-08 -- When mentally ill defendants are found competent to stand trial, does that also mean they are competent enough to represent themselves in court? . . . The Supreme Court struggled with that question Wednesday during an oral argument that weighed the Sixth Amendment right to self-representation against a state's interest in not having trials "descend into farce." Along the way, some lawyer jokes were also cracked. . . . The issue in the case Indiana v. Edwards is whether a state may impose a higher standard of competence for self-representation than the fairly minimal test for deciding if a defendant is competent to stand trial. The Indiana Supreme Court ruled that Ahmad Edwards, diagnosed as a schizophrenic, was denied his right to represent himself at a 2005 trial for a department store robbery and shooting. . . . The trial judge had determined that while Edwards met the standard for competence to stand trial -- he understood the proceedings and could assist his lawyer -- he did not have the additional competence to represent himself. . . . Indiana, backed by the Justice Department, argue that in the interest of protecting both the reality and appearance of fairness and dignity of the courts, states should be allowed to set higher standards for self-representation. . . . "If the public sees the spectacle of a mentally ill defendant ... attempt to communicate to the jury on his own in a very delusional way, it really casts the justice system into disrepute," Deputy U.S. Solicitor General Michael Dreeben told the justices.

High court to consider self-representation

By Maureen Groppe, Gannett News Service

03-26-08 -- A shoe shoplifting incident that escalated into a lunchtime shooting in downtown Indianapolis nearly a decade ago is now the basis for the Supreme Court to decide how much latitude states have to determine if a defendant is capable of representing himself at trial. . . . The Supreme Court is set to hear oral arguments Wednesday in an Indiana case in which a Marion County judge decided a defendant with a history of mental illness was competent to stand trial, but not to represent himself as he requested. . . . When Ahmad Edwards appealed his conviction of attempted murder and other charges, the Indiana Supreme Court agreed Edwards had the right to represent himself and reversed his conviction. . . . The Indiana attorney general's office appealed, arguing that allowing mentally impaired defendants to represent themselves undermines fair trials and erodes public confidence in the system. . . . "The consequences often are disastrous for both the defendants and the integrity — not to mention dignity — of the criminal justice system," the Indiana attorney general's office wrote in its brief to the court.

Supreme Court Sides With Texas in Dispute With Bush

High court's 6-3 decision drew strong reaction on both sides

Tony Mauro, Legal Times

03-26-08 -- In a landmark decision at the intersection of state, federal and international law, the Supreme Court on Tuesday ruled that neither the World Court nor President George W. Bush can mess with Texas when it comes to that state's enforcement of its own criminal laws. . . . The justices, in a 6-3 decision that drew strong reaction on both sides, ruled that neither the international court nor a directive by President Bush, both aimed at enforcing a consular rights treaty signed by the United States, amounted to "enforceable federal law" that could be imposed on Texas. . . . The World Court, known formally as the International Court of Justice, had told Texas in 2004 to review the state convictions of 51 Mexican nationals who had not been informed of their rights under the treaty to seek legal assistance from the Mexican consulate. While an earlier version of the case was pending before the Supreme Court in 2005, President Bush issued a memorandum stating he would meet the treaty obligations by "having state courts give effect" to the World Court ruling.

Saucier Than Usual, the Supreme Court Tackles a Precedent

Tony Mauro, Legal Times

03-25-08 -- In granting review in a new case on police immunity Monday, the Supreme Court took the rare step of announcing its intention to examine whether one of its relatively recent precedents, Saucier v. Katz, "should be overruled." The unusual announcement came in the form of an order directing the parties in the new case, Pearson v. Callahan, to brief that issue in addition to the questions presented by the case. . . . The 2001 decision in Saucier established a two-step test for deciding whether police deserve immunity from lawsuits claiming they violated someone's constitutional rights. First, it must be established that the claimant's constitutional rights were violated. If so, the next question is whether that right was clearly established -- in other words, well-enough known that a reasonable officer should have known what it was.

Justice Scalia and Oscar the Grouch

Tony Mauro, Legal Times

03-20-08 -- Tuesday was a historic day at the Supreme Court, not just because of the oral argument in the Second Amendment case D.C. v. Heller. It also marked the first time that Oscar the Grouch entered the annals of Supreme Court jurisprudence. . . . Justice Antonin Scalia is the one to thank for this milestone. He mentioned the famous Sesame Street character in a tart rebuke aimed at Chief Justice John Roberts Jr. The mention was contained in a Scalia dissent filed in the case of Washington State Grange v. Washington State Republican Party, decided Tuesday. . . . In that decision, authored by Justice Clarence Thomas, the Court upheld the "top two" primary system in Washington state, which allows candidates to list on the ballot their party preferences -- whether or not the party they prefer wants to be identified with them. The parties complained their First Amendment right not to associate with the candidates would be violated, and voters would be confused. . . . In a concurrence, Roberts supported the majority's view that voter confusion was not at all certain just because a candidate says, "I prefer the Democratic party." To illustrate his point, Roberts said that the statement "I like Campbell's soup" would not necessarily imply any connection with the Campbell Soup Co.

High Court Justices Throw Out Death Sentence, Conviction in Case Involving Racial Prejudice

Justice Samuel Alito, writing for the majority, said the trial judge should have blocked Williams from striking a black juror

Mark Sherman, The Associated Press

03-18-08 -- The U.S. Supreme Court threw out the death sentence and conviction in a murder case Wednesday, citing racial prejudice in the actions of a prosecutor who kept blacks off the jury. . . . By a 7-2 vote, the justices said Louisiana state prosecutor Jim Williams improperly excluded blacks from the jury that convicted Allen Snyder of killing his estranged wife's companion. Snyder is black, and the jurors were white. . . . Justice Samuel Alito, writing for the majority, said the trial judge should have blocked Williams from striking a black juror. . . . Justices Clarence Thomas and Antonin Scalia dissented. Thomas said he would not "second-guess" the judge. . . . During jury selection in the trial, Williams disqualified all five blacks in the pool of prospective jurors. The Supreme Court ruled in 1986 that prosecutors may not exclude people from a jury solely because of their race. The court already had sent Snyder's case back to the Louisiana courts following a ruling in 2005 that bolstered the prohibition on race bias in jury selection.

Supreme Court Hears Arguments in D.C. Gun Ban Case

Afterwards, gun-control advocates seemed less pessimistic than before the arguments, though they did not predict victory

Tony Mauro, Legal Times

03-19-08 -- When Supreme Court Justice Anthony Kennedy is cast as the swing vote in a case before the Court, he often waits until late in the oral argument to tip his hand. . . . But as the Court considered the landmark Second Amendment case D.C. v. Heller on Tuesday, Kennedy was quick to lay bare his view on the scope of the right to bear arms contained in the amendment. The first part, he said, was meant to reaffirm "the existence and the importance" of the treatment of state militias contained in the Constitution itself. The second part, Kennedy asserted, means that "in addition" there is a right to bear arms, which he later declared was a "general right." . . . The Second Amendment reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." . . . Kennedy's comments appeared to spell trouble for efforts by the District of Columbia to revive its strict handgun ban, although lawyers for both the Bush administration and gun-rights advocates acknowledged that some lesser regulation of the right would be acceptable. . . . Counting Kennedy, it appeared that five or more justices

Supreme Court Will Hear Case on Broadcast Indecency

Tony Mauro, Legal Times 

03-19-08 -- Thirty years after it approved FCC rules banning the use of "indecent" language on broadcast television and radio, the Supreme Court on Monday agreed to look at the issue again -- this time in the context of the fleeting use of expletives in live broadcasts. . . . At issue in the case of FCC v. Fox Television Stations is the seemingly spontaneous use of the "F-word" by Cher in 2002 and Nicole Richie in 2003 on Fox broadcasts of the Billboard Music Awards. . . . In accepting an award, Cher said critics had counted her out for decades, and she added, "So fuck 'em. I still have a job, and they don't." . . . Richie got an award for her role in a reality show that had her living a rural life. "Have you ever tried to get cow shit out of a Prada purse?" she asked on the air. "It's not so fucking simple." . . . After receiving complaints, the FCC ruled that these instances and others violated its 2001 policy that seemed to extend the ban on indecent language to "even relatively fleeting" instances. The commission also ruled against NBC when the singer Bono exclaimed during a Golden Globes award broadcast in 2003 that the award was "fucking brilliant." The commission did not levy fines, however, finding that networks did not have adequate notice of its policy.

U.S. Supreme Court to review '94 murder case

By Christine Clarridge, Seattle Times staff reporter

Archive | The story of a drive-by murder

03-19-08 -- The U.S. Supreme Court has agreed to consider whether to reinstate the murder conviction of the driver in a fatal drive-by shooting of a Ballard High School student 14 years ago. . . . The Supreme Court is slated to hear oral arguments this fall in the case of Cesar Sarausad II, who was a 19-year-old University of Washington engineering student when Melissa Fernandes was fatally shot at Ballard High on March 23, 1994. . . . The 9th U.S. Circuit Court of Appeals in San Francisco had overturned Sarausad's second-degree murder conviction because it determined that King County Superior Court Judge Larry A. Jordan erred when he told jurors Sarausad could be convicted of murder regardless of whether he knew of any plan for a killing. . . . The appeals panel ruled that the jury should have been told Sarausad could be convicted of murder only if he knew the triggerman had a gun and planned to kill. . . . The state appealed the 9th Circuit decision, and the Supreme Court agreed on Monday to hear the case.

Justices Overturn Death Sentence in La.

By David Stout

03-19-08 -- The Supreme Court on Wednesday overturned the conviction and death sentence of a Louisiana man who killed his estranged wife in a jealous rage, finding that the trial judge “committed clear error” in excluding black jurors. . . . By 7 to 2, the court ruled in favor of Allen Snyder, whose case came before the justices for the second time last December, two years after they had sent it back to the Louisiana Supreme Court and told that tribunal to consider whether the jury selection had been tainted by racial bias. . . . The Louisiana high court reaffirmed the conviction and sentence by a vote of 4 to 3, but the United States Supreme Court on Wednesday overturned that judgment, finding that, even under the wide deference that appellate courts must grant trial courts, the trial of Mr. Snyder, who is black, was tainted. . . . The opinion, written by Justice Samuel A. Alito Jr., found that the prosecutor’s reasoning for excluding all black jurors was highly implausible, and that the trial judge should not have accepted it.

Supreme Court to Hear Arguments Over Reimbursement of Paralegal Costs

Issue is crucial to small firms litigating against U.S. government

Marcia Coyle, The National Law Journal

03-17-08 -- A small security business that waged a long and successful court battle with the federal government over back wages is asking the U.S. Supreme Court to hold that a federal law, enacted nearly 30 years ago, allows reimbursement of paralegal expenses at market rates and not at a law firm's cost. . . . Congress enacted the Equal Access to Justice Act (EAJA) to level somewhat the playing field for small businesses and individuals litigating against the federal government. It allows them, if successful, to be reimbursed for attorney fees and other expenses. But the law is silent on how to treat paralegal services. . . . "For big law firms, EAJA fees don't make any difference to them," said Brian Wolfman of Public Citizen Litigation Group, high court counsel to Richlin Security Service, the firm seeking reimbursement. But paralegals are used heavily by smaller firms in the hundreds of Social Security, veterans and contract cases filed predominantly in the U.S. Court of Appeals for the Federal Circuit and in other circuits as well, he said. . . . On Wednesday, Wolfman will argue that the Federal Circuit was wrong on law and logic when it held -- contrary to court interpretations of similar fee-shifting statutes -- that paralegal services are not embraced by the statute's phrase "attorney fees," but fall into the category of "other expenses," reimbursable at actual cost. Richlin Security Service v. Chertoff.

Court Will Examine Profanity Rules

By Mark Sherman, Associated Press Writer

03-17-08 -- The Supreme Court on Monday stepped into a legal fight over the use of curse words on the airwaves, the high court's first major case on broadcast indecency in 30 years. . . . The case concerns a Federal Communications Commission policy that allows for fines against broadcasters for so-called "fleeting expletives," one-time uses of the F-word or its close cousins. . . . Fox Broadcasting Co., along with ABC, CBS and NBC, challenged the new policy after the commission said broadcasts of entertainment awards shows in 2002 and 2003 were indecent because of profanity uttered by Bono, Cher and Nicole Richie. . . . A federal appeals court said the new policy was invalid and could violate the First Amendment.

Case could expand rights to court-appointed lawyers.

By Chuck Lindell, American-Statesman Staff
03-17-08 -- Walt Rothgery, a modest man with a hard-luck life, is about to be immortalized by the U.S. Supreme Court. . . . His case, resulting from a mistaken arrest six years ago, will be argued before the nation's highest court Monday. The ensuing opinion will be known as the Rothgery decision — discussed by journalists, dissected by legal scholars and cited by lawyers in future legal briefs. . . . "Isn't that something?" said Rothgery, 57, a store manager for a party supply rental business. . . . "Just to be sitting in the (Supreme Court) chambers and hearing a case involving me, I don't really know how I'll feel," he said, groping for the right description. "Awe? Give me another word." . . . Rothgery's case could expand, or at least better define, when criminal defendants are entitled to a lawyer if they cannot afford to hire one. He has the support of the American Bar Association, National Association for the Advancement of Colored People and 24 high-profile law professors, including Jordan Steiker of the University of Texas. . . . Rothgery's supporters want Texas counties to appoint a lawyer during a suspect's first court appearance, when charges are explained and a trip to jail is possible. Such a practice could have saved Rothgery from three weeks in jail and the stigma of being arrested, which left him unable to find a job and deeply in debt, lawyer Andrea Marsh said.

D.C. Gun Case Draws Crowd of High Court 'Friends'

By Robert Barnes, Washington Post Staff Writer

03-10-08 -- With the Supreme Court examining for the first time in 70 years the right to bear arms guaranteed by the Second Amendment, a group of gay and transgender gun owners called the Pink Pistols could not miss out on a chance to tell the justices about its special needs. . ..  With the opaque and oddly punctuated 27 words of 18th-century prose at last under the microscope, linguistic professors wanted the court to know that "the Second Amendment's absolute construction functions as a sentence modifier." . ..  With the intentions of the Framers in question and modern social policy at stake, justices considering whether the District of Columbia's ban on handguns violates the Constitution have received an avalanche of advice from professors, doctors, social scientists, district attorneys, historians, religious groups, members of Congress and, of course, Vice President Cheney.

Supreme Court defers action on TV 'expletives' case

By David G. Savage, Los Angeles Times Staff Writer

03-05-08 -- The Supreme Court took no action today on the government's move to levy large fines on broadcasters who let expletives slip on the air during daytime or early evening hours -- leaving the issue still pending before the court. . . . At times, the justices debate a pending appeal and defer action until they have had more time to consider an aspect of the case. The court will next issue orders on pending appeals March 17. . . . Last year, an appeals court in New York blocked the Federal Communications Commission from enforcing its new rule against "fleeting expletives." And Bush administration lawyers had urged the Supreme Court to take up the dispute and to give the FCC a green light to enforce the new policy. . . . The appeal was considered by the high court in its closed conference on Friday, but the justices did not say today whether they had agreed to hear it or deny it. . . . Lawyers for Fox TV and the other networks had urged the justices to stay out of the case. They said the FCC should be forced to explain why the agency had changed course in 2004 and adopted a near zero-tolerance policy for broadcast expletives.

February 2008

Supreme Court Could Limit Damages in Exxon Valdez Case

Packed courtroom hears historic 90 minutes of arguments

Tony Mauro, Legal Times

02-29-08 -- The Supreme Court on Wednesday appeared unwilling to toss out the $2.5 billion punitive damage award against Exxon Mobil Corp. for the massive Exxon Valdez oil spill 19 years ago. . . . But the justices also seemed to think that $2.5 billion was too much, pointing toward a possible compromise decision that will give partial victories both to the oil company and the class of 32,000 Alaska fishermen and others involved in the case. . . . The historic 90 minutes of arguments in Exxon Shipping v. Baker represent the culmination of years of litigation seeking compensation for the lingering effects of the 11 million-gallon oil spill on the lives and economy of Prince William Sound. A jury awarded the group $287 million in compensatory damages and $5 billion in punitives, but the U.S. Court of Appeals for the 9th Circuit cut the punitive award in half.

Supreme Court Says FedEx Employees Can Sue Over Age Discrimination

As a result of the EEOC's failure to notify, the chance for an informal dispute resolution process was lost

Mark Sherman, The Associated Press 

02-29-08 -- The Supreme Court decided Wednesday that employees who claim job discrimination should not suffer because of mistakes made by the federal agency charged with investigating their allegations. . . . The 7-2 ruling allows an age discrimination lawsuit to proceed against FedEx Corp. . . . The majority opinion by Justice Anthony Kennedy is critical of the Equal Employment Opportunity Commission, which failed to notify FedEx that 14 employees had filed a complaint. Companies must be told about complaints before discrimination lawsuits can be filed. . . . As a result of the EEOC's failure to notify, the two sides lost the benefit to engage in an informal dispute resolution process. . . . The lower court that will now hear the case "can attempt to remedy this deficiency" by allowing for conciliation and possible settlement, Kennedy wrote.

Justices Side With West Virginia Smokers in Lawsuit Against Tobacco Companies

The Associated Press 

02-27-08 -- The Supreme Court on Monday rejected a tobacco industry request to intervene in a lawsuit by over a thousand West Virginia smokers. . . . The justices declined to examine a trial procedure in which a jury first determines whether smokers as a group are entitled to punitive damages before establishing whether any single smoker is entitled to compensation. . . . Later, a new jury addresses issues unique to each alleged smoking victim who sued. . . . West Virginia courts are allowing the approach, which has been used in other types of lawsuits, including claims for asbestos exposure. . . . The second phases of such trials rarely occur, because the two sides usually settle once they know the value of the case. . . . Tobacco companies oppose use of the legal device, which lawyers call "reverse bifurcation."

Did Allison Engine Case Throw a Rod Before the U.S. Supreme Court?

Tony Mauro, Legal Times 

02-27-08 -- Oral argument in the whistleblower case of Allison Engine Company v. United States took a strange twist Tuesday when Supreme Court justices, at least temporarily, seemed convinced that crucial facts of the case were not quite what they had appeared. After seemingly new information emerged, an exasperated Justice Antonin Scalia said to one of the lawyers, "I wish you had said that in your brief, because we could have saved ourselves a lot of reading." . . . The case is a test of the False Claims Act, which rewards whistleblowers who report when the U.S. government is being defrauded by those who do business with it. At issue is whether the law only covers those cases in which a fraudulent bill is presented directly to the government -- or, alternatively, it could also cover subcontractor situations in which government funds may be misspent, but the actual fraudulent bill is presented not to the government directly but to a company or other institution, like a hospital, that receives federal funds.

Interpreting the Supreme Court's Medical Device Decision

By Justin Ewers

02-22-08 -- On the face of it, the Supreme Court's decision this week to shield medical device makers from lawsuits appeared to be a big win for business—and a possible sign of hard times to come for consumers. In an 8-to-1 decision, the justices ruled against a New York man, Charles Riegel, who died after a balloon catheter made by Medtronic burst after being inserted during an angioplasty in 1996. Riegel's wife sued, but the court sided with the company, saying states don't have the right to impose liability on medical device makers so long as the devices have been approved by the FDA. . . . Consumer advocates were outraged, viewing the decision as the first blow struck by an increasingly pro-business court. The ruling, after all, effectively makes the FDA—an agency that has struggled recently in its monitoring role—the final word on medical devices: If the agency gives a product its approval, consumers harmed by a device may have limited legal recourse. Democrats on Capitol Hill are beside themselves. "In enacting legislation on medical devices, Congress never intended that FDA approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices," Sen. Ted Kennedy said in a statement. "Congress obviously needs to correct the court's decision."

Justices Will Hear Case on Evidence Suppression

By Linda Greenhouse

02-20-08 -- In theory, a criminal-law doctrine known as the exclusionary rule forbids prosecutors from using evidence obtained by the police as the result of an improper search. In practice, the rule has significant exceptions, like for evidence obtained in good faith through reliance on an invalid search warrant or as the result of erroneous information from a court official. . . . Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal. . . . The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police. . . . In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol. . . . He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.

High Court Negs Judge Alex; Scalia Opines on Preemption

Posted by Dan Slater , WSJ Blog

The Mill of Justice is cranking at full-speed today down at 1 First Street NE. Herewith are decisions in three of the more interesting Supreme Court cases:

02-20-08 -- Judge Alex Dismissed: Alex Ferrer (pictured), a dashing former judge who now settles disputes on daytime television, has been locked in conflict with his former manager, Arnold Preston — an ex-criminal defense lawyer who now produces a gospel talent show on cable — over how much the former manager should’ve received in commissions. The question before the court today was not who’s right, but who gets to decide who’s right. (Click here for a WSJ front-page profile of Ferrer and his case from last month.) The Court ruled 8-1 against Ferrer, holding that an arbitrator must decide the dispute. Here’s the decision.

Scalia On Preemption: In an 8-1 ruling penned by Justice Scalia, the court held that federal medical-device regulations preempt state product liability suits unless there’s a parallel FDA violation. Here’s the early report from WSJ on the Medtronic case, and here’s the opinion. Justice Ginsburg was the lone dissenter.

Sue, 401(k)-holders, Sue!: In another closely watched case, the court granted individual 401(k) participants the right to sue plan administrators under ERISA for breach of fiduciary duty. Click here for the AP story; here for the opinion. . . . The language of the law refers to recovering money for the “plan” rather than for an individual, which raised the question of whether a participant can sue solely for himself. Justice John Paul Stevens, writing for the court, said that such lawsuits are allowed. “Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,” Stevens said.

DOJ Urges Supreme Court to Stop Lawsuit Alleging Companies Aided Apartheid

Christopher S. Rugaber, The Associated Press

02-19-08 -- The Bush administration has asked the Supreme Court to throw out a lawsuit that accuses more than 30 U.S. and European corporations of violating international law by assisting South Africa's former apartheid government. . . . The case -- three suits being considered jointly -- seeks up to $400 billion in damages from corporations such as Ford Motor Co., IBM Corp., Citigroup Inc. and General Electric Co., for their business relationships with the South African government from 1948 to 1994, according to court papers.  . . . The case is the latest test of an 18th-century law known as the Alien Tort Claims Act, which allows foreigners to sue in U.S. courts over international law violations. Originally intended to allow foreigners to seek redress for piracy and other wrongs, the law has been increasingly used in the last 15 years to sue corporations for their alleged involvement in human rights abuses overseas. . . . Yahoo Inc., for example, was sued last year for its decision to provide China's government access to a political dissident's e-mail account.

Retaliation Cases Hit High Court En Masse

Justices to review trio of key cases

Marcia Coyle, The National Law Journal

02-04-08 -- Job retaliation challenges have arrived en masse at the U.S. Supreme Court as part of the largest onslaught of employment cases on the docket in years. . . . The justices have decided two major retaliation cases in the past three years. This term alone, they have granted review in three cases, two to be argued in February and one -- perhaps with the greatest potential impact of the three -- as yet unscheduled. . . . The increased number is not surprising given the surge in retaliation charges filed with the Equal Employment Opportunity Commission in the past decade. By the end of fiscal 2006, retaliation charges filed under all civil rights statutes represented nearly 30 percent of all discrimination charges filed that year. . . . "It was sort of an odd circumstance that the case law had not been very developed under retaliation for many years," said employment discrimination scholar Michael Selmi of George Washington University Law School. "Attorneys just started to plead it more. Once the case law started developing, courts became more attentive to these claims and that furthered the law as well."

January 2008

Court Rules Inmates Can't Sue for Property Loss

By Robert Barnes, Washington Post Staff Writer 

01-23-08 -- Abdus-Shahid M.S. Ali's lawsuit against prison guards was based on allegations of harassment and mistreatment. But the Supreme Court's decision yesterday that he is barred from suing rests on an ambiguous federal statute that has confounded the courts and sharply divided the justices. . . . It involves the word "any." . . . Ali's lawsuit alleging a missing Koran and prayer rug is barred under the Federal Tort Claims Act, the court said in a 5 to 4 ruling, because the law includes prison guards among those immune from suit. . . . The confusion in the courts comes because the immunity is mentioned in a section of the law that blocks lawsuits against the government over the "loss of goods, merchandise or other property" detained by customs or excise officers. The law then adds "or any other law enforcement officer."

Commas, Clauses and Missing Butter at the Supreme Court

Tony Mauro, Legal Times 

01-23-08 -- Excelling at grammar has not seemed to be among the skills required of a Supreme Court justice. Law clerks and the reporter of decisions take care of that, right? . . . But this term, grammar knowledge is looming large. As previously reported, the meaning of the commas in the Second Amendment could be a major factor in deciding D.C. V. Heller, the critical case testing Washington, D.C.'s strict handgun ordinance. . . . Tuesday, in a much lower-profile decision, Ali v. Federal Bureau of Prisons, grammar also plays a role in interpreting the statute at issue. And if you parse it closely, it may even offer some hints about how the justices will handle the Second Amendment case as well. . . . Invoking the Federal Tort Claims Act, inmate Abdus-Shahid Ali sued the bureau for losing some of his personal belongings during a prison transfer. The government, supported by all lower courts and now the Supreme Court, said Ali's claim should be dismissed, because of an exception in the law that gives immunity from liability for "any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise or other property by any officer of customs or excise or any other law enforcement officer."

Supreme Court Steps Into Suit Over Advertising of 'Light' Cigarettes

Mark Sherman, The Associated Press

01-21-08 -- The Supreme Court agreed Friday to a cigarette maker's request to decide whether tobacco companies can be sued under state law for allegedly deceptive advertising of "light" cigarettes. . . . The tobacco industry is trying to head off a wave of state-based challenges regarding the light cigarettes, even as it is appealing a federal judge's order to stop marketing cigarettes as "low tar," "light," "ultra light" or "mild" because they mislead consumers. . . . The issue before the justices is whether state laws against unfair marketing practices may be used in suits against the tobacco companies or whether federal law bars such lawsuits. The Federal Cigarette Labeling and Advertising Act says states can't impose any requirements on the advertising or promotion of cigarettes. . . . A federal judge initially threw out a suit filed by three Maine residents against Altria Group Inc. and its Philip Morris USA Inc. subsidiary that alleged the advertising of light cigarettes was unfair and deceptive.

Supreme Court Limits Trusts' Tax Deductions

The Associated Press

01-18-08 -- The Supreme Court upheld limits Wednesday on income tax deductions for trusts and estates, ruling against the family that created Pepperidge Farm. . . . The Court said trusts ordinarily may not deduct the full cost of investment advice on their income tax returns. Those expenses are deductible only when they exceed 2 percent of adjusted gross income, the same limits faced by individual filers, Chief Justice John Roberts said for a unanimous Court. . . . The case arose over a relatively small tax dispute, $4,448, involving the income tax return filed by the trust established by the will of Henry A. Rudkin, former chairman and founder of the Pepperidge Farm company. . . . The trust was funded with the proceeds of the sale of Pepperidge Farm to the Campbell Soup Co. The trust had $2.9 million in assets and $625,000 in income in 2000, the year of the disputed return. . . . The case is Knight v. Commissioner of Internal Revenue, 06-1286.

U.S. Supreme Court Upholds New York State's
Judicial Election System

Daniel Wise and Joel Stashenko, New York Law Journal  

01-18-08 -- The U.S. Supreme Court on Wednesday unanimously upheld the constitutionality of New York state's convention system for nominating Supreme Court justices. . . . Although four justices, in two separate concurring opinions, expressed strong reservations about the wisdom of the 86-year-old process, the Court held that, while New York's system might be unfair, it is not unconstitutional. . . . The Court's majority opinion, written by Justice Antonin Scalia and joined by seven of the Court's eight other justices, said that traditional electoral practice "gives no hint of even the existence, much less the content, of a constitutional requirement for a 'fair shot' at party nomination." . . . Indeed, Scalia wrote, "Party conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates." . . . The outcome had been widely anticipated after oral argument in October, when justices from both the conservative and liberal wings of the Court expressed skepticism about the challenge mounted by the Brennan Center for Justice.

Investors Lose Again, Thanks to Supreme Court

Commentary by Susan Antilla

01-18-08 -- (Bloomberg) -- The U.S. Supreme Court gave us more evidence earlier this week of what people in the stock market already knew: This is no time to be an investor. . . . People who buy shares in companies that defraud them can't sue those who may have helped in an illegal deed, the court said. Money lost because Smith Co. and Jones Co. lent a hand while Acme Co. cooked the books? The court says tough luck unless Smith and Jones somehow led you to buy Acme's stock. . . . This judicial gift came via the Jan. 15 decision in Stoneridge Investment Partners LLC versus Scientific-Atlanta Inc. and Motorola Inc. Stoneridge, a Malvern, Pennsylvania, money manager, alleged that the two cable-television box-makers helped pull off an accounting fraud that let Charter Communications Inc. show more revenue than it really had. The court ruled on whether Stoneridge could sue so-called abettors, not on whether the allegations were true.

High Court's 'Stoneridge' Ruling a Win for Business Defendants

Ruling will likely affect litigation by Enron investors seeking billions from bankers and Wall Street firms

Tony Mauro, Legal Times

01-16-08 -- The Supreme Court on Tuesday handed a solid win to third-party defendants in securities litigation -- including law firms, accountants and bankers -- by shielding them from broad "scheme liability" for their tangential role in corporate fraud. . . . The victory came in the much-awaited case of Stoneridge Investment Partners v. Scientific-Atlanta Inc. and Motorola Inc., in which investor groups that sued the cable operator Charter Communications for fraud also pursued the companies that sold cable boxes that figured in some of Charter's fraudulent transactions. . . . By a 5-3 vote, the Court said that because investors victimized by Charter did not rely on any statements or omissions made by the vendors Scientific-Atlanta and Motorola, the vendors could not be held liable under Section 10(b) of the Securities Exchange Act of 1934.

Supreme Court Rules on Lawyers 'Phoning It In'

Handling plea via phone not necessarily ineffective

Marcia Coyle, The National Law Journal

01-15-08 -- The U.S. Supreme Court, in a Jan. 7 unsigned opinion, reversed a federal appellate court decision holding that a defense lawyer who participates in a plea hearing by speakerphone was presumptively ineffective. . . . Joseph L. Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His lawyer was not physically present at the plea hearing but was linked to the courtroom by speakerphone. . . . After being sentenced to 25 years in prison, Van Patten, with different counsel, moved to withdraw his no-contest plea in the Wisconsin Court of Appeals. He argued that his Sixth Amendment right to counsel was violated by his trial counsel's physical absence from the plea hearing. . . . The state appellate court found no constitutional violation. Van Patten then sought habeas relief in federal court. The district court denied relief, but the 7th U.S. Circuit Court of Appeals reversed, relying on U.S. v. Cronic, 466 U.S. 648 (1984).

Supreme Court Hears Arguments on Whether Search
Was Proper After Arrest That Violates State Law

Stevens questions the time lag between the arrest and the search

Pete Yost, The Associated Press

01-15-08 -- Driving on a suspended license, David Lee "Chubs" Moore nonetheless had the law on his side. But was it enough? . . . Maybe not, the Supreme Court suggested Monday, as the justices questioned whether evidence in criminal cases should be suppressed following arrests that violate state laws. . . . At issue is the cocaine conviction of Moore, who was pulled over by Portsmouth, Va., detectives who suspected he was driving while his license was suspended. Instead of sending Moore on his way after writing a court summons -- as required by Virginia law -- police arrested him and found crack cocaine in his jacket. . . . The Virginia Supreme Court threw out the case and overturned his five-year prison term after concluding the search following his arrest was unconstitutional. The state attorney general sought help from the U.S. Supreme Court.

Supreme Court Lets Stand Experimental-Drug Ruling

By Robert Barnes, Washington Post Staff Writer 

01-15-08 -- The Supreme Court yesterday declined to consider whether dying patients have a right to be treated with experimental drugs not yet approved by the Food and Drug Administration. . . . The court, without comment or recorded dissent, let stand a ruling by the U.S. Court of Appeals for the D.C. Circuit, which said the terminally ill have no constitutional right to drugs the agency considers safe enough only for additional testing. . . . The challenge was brought by the Washington Legal Foundation and the Abigail Alliance for Better Access to Developmental Drugs. The alliance is headed by Frank Burroughs of Fredericksburg and named in honor of his daughter, Abigail Burroughs, who was diagnosed at 19 and died at 21 of a form of cancer rare in someone her age. . . . The young woman died in 2001, and the drug she was seeking was later approved.

Cuomo Stands Alone on 2nd Amendment

By Joseph Goldstein Staff Reporter of the Sun

01-14-08 -- In arguing that the Second Amendment case now before the Supreme Court shouldn't have any bearing on state gun control laws, Attorney General Cuomo is finding himself largely alone among state attorneys general. . . . Mr. Cuomo filed a brief, signed onto by only four other states and Puerto Rico, to the federal high court last week in District of Columbia v. Heller, which will be heard in March. In the case, the Supreme Court will review whether Washington, D.C., residents have a right under the Second Amendment to keep handguns at home for self-protection. The District of Columbia has what amounts to a blanket ban on handguns. . . . The question of whether states can regulate gun ownership is not at the forefront of the D.C. case. But gun rights proponents say a decision endorsing a reading of the Second Amendment that favors private gun ownership will lead to challenges of state gun control laws.

A Different 'Right to Life'

Commentary By Steven Walker

01-11-08 -- Today the Supreme Court will consider a petition to hear a case raising profound issues regarding the right of individuals to make their own health-care decisions. The case is Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach. . . . The suit claims that FDA violates the due process rights of terminally-ill patients, who have exhausted all approved options and are unable to enter a clinical trial, by prohibiting access to promising investigational drugs. . . . Consider the plight of such patients. They search for clinical trials of new drugs that might extend their lives. Nearly all are ineligible. Of the few who do qualify, many learn the trial is fully enrolled and closed, or too far away. Others face a 50-50 chance of getting a placebo (a sugar pill) under blinded conditions (meaning neither they nor their doctors know what they are getting). Many are allowed to die without being told about or offered the active drug.

Justices Debate Stare Decisis

Tony Mauro, Legal Times 

01-09-08 -- An otherwise mind-numbing Supreme Court ruling Tuesday morning nonetheless contains an interesting debate among the justices about an issue that often comes up during confirmation hearings: stare decisis, or the importance of respecting precedent. Justice Stephen Breyer, in reading a summary of his decision from the bench, seemed to deliberately highlight what he wrote about the issue, which actually takes up only a few sentences at the end of the 7-2 decision. . . . At issue in the case decided Tuesday, John R. Sand & Gravel Co. v. United States, was the statute of limitations for claims involving mining leases made to the U.S. Court of Federal Claims. In reaching his conclusion, Breyer relied on a series of precedents dating back to the 1880s. But he also discussed somewhat related and more modern decisions that the petitioner, the gravel company, asserts have rendered the older precedents "anomalous."

For the Supreme Court, a Docket Full of Drama

High-profile election-year cases will keep justices in the limelight

Tony Mauro, Legal Times 

01-07-08 -- From the moment it returns to the bench today, the Supreme Court will be embarking on a schedule that almost guarantees it will make controversial headlines in the midst of the 2008 presidential campaign. . . . At times in its history, the high court has deliberately stepped back from the limelight in presidential election years. But for all its talk of judicial modesty, the current Court seems to be ignoring the political calendar and saying, "Bring it on." . . . The Court's high-profile year begins at 10 a.m. Monday with consideration of Baze v. Rees, a challenge to the lethal-injection formula used in most executions.

The pace continues Wednesday with arguments in Crawford v. Marion County Election Board, which could affect the 2008 election directly by either upholding or striking down voter identification laws -- laws that critics say will suppress Democratic voter turnout.

December 2007

Law School Clinic Asks U.S. Supreme Court To Hear Major Juvenile Justice Case

University of Texas at Austin

12-19-07 -- The Supreme Court Clinic at The University of Texas School of Law filed Monday (Dec. 17) a certiorari petition with the U.S. Supreme Court asking it to review the sentence of a South Carolina prisoner, Chris Pittman, who is serving a 30-year term without parole for an offense he committed when he was 12 years old. . . . No other inmate in the country is serving so severe a sentence for an offense committed at such a young age. . . . The cert petition asks the Supreme Court to address for the first time whether its reasoning in the 2005 Roper v. Simmons decision, which prohibited the death penalty for minors, also protects 12-year-old children who receive lengthy mandatory sentences without possibility of parole.

Supreme Court Clinic Files
Certiorari Petition with U.S. Supreme Court 

Read certiorari petition [PDF].

View appendix documents [PDF].
Appendix parts 1 and 15 contain charts and tables.

Supreme Court Enhances Judges' Sentencing Discretion

In a pair of key decisions, high court reaffirms that federal sentencing guidelines are merely advisory

Tony Mauro, Legal Times

12-12-07 -- In a pair of important decisions Monday, the Supreme Court gave federal trial judges much greater latitude to deviate from federal sentencing guidelines. . . . In one of the decisions, Kimbrough v. United States, the Court voted 7-2 to allow judges to weigh the controversial disparity between guideline sentences for crack and powder cocaine offenses in giving defendants a below-guideline sentence. . . . In a separate decision with potentially broader impact, the same 7-2 majority ruled in Gall v. United States that judges may deviate from the guidelines without having to demonstrate that "extraordinary circumstances" required sentencing outside the guidelines. . . . Justice John Paul Stevens, writing for the majority in Gall, said sentencing judges must give "serious consideration" to deviations and must explain their reasoning. But he added that in doing so, judges need not even presume the guidelines are reasonable and instead "must make an individualized assessment based on the facts presented."

High Court Justices Rule in Favor of Defendant on Gun Issue

The Associated Press 

12-12-07 -- The Supreme Court unanimously refused on Monday to broaden the impact of a law that adds extra prison time to the sentences of drug traffickers who use a gun in carrying out their crimes. . . . In a 9-0 decision, the Court said the tough anti-crime provision does not apply to traffickers who trade drugs for guns. . . . The Court overturned the gun-related conviction of Michael A. Watson of Ascension Parish, La., who told a man who turned out to be a government informant that Watson wanted a weapon for self-protection and was willing to trade illegal drugs for it. . . . The issue in the case was whether receiving a gun in exchange for drugs constitutes "use" of the gun under federal law. The federal government "may say that a person 'uses' a firearm simply by receiving it in a barter transaction, but no one else would," wrote Justice David Souter. "Given ordinary meaning and the conventions of English, we hold that a person does not 'use' a firearm'' under federal law "when he receives it in trade for drugs."

The Supreme Court's habeas hearing

How the justices reacted to the case for giving Guantanamo inmates more rights.

Los Angeles Times Editorial

12-10-07 -- A few months after the attacks of Sept. 11, 2001, the U.S. government transported almost 700 suspected terrorists who had been captured abroad to Guantanamo Bay Naval Base in Cuba, where the Bush administration assumed -- wrongly -- that they would have no opportunity to challenge their confinement in a U.S. court. But what if the alleged enemy combatants had been deposited somewhere else -- say, in a prison under the control of the CIA in Egypt or Poland? . . . Last week, the Bush administration's lawyer tried to convince the Supreme Court that the 300-some remaining detainees might as well be in Egypt or Poland because Congress has excluded Guantanamo from the reach of a federal statute authorizing prisoners to seektheir release by using the ancient writ of habeas corpus. Fortunately, a majority of the justices seemed skeptical of that claim. Even without a statute, prisoners held in the United States have access to habeas under the Constitution, which says that Congress may suspend the writ only in cases of rebellion or invasion. More important, as Justice Ruth Bader Ginsburg noted at last week's argument, the court ruled in the 2004 case of Rasul vs. Bush that Guantanamo was under the "exclusive jurisdiction and control" of the United States.

High Court Justices Clash on Detainee Rights

Tony Mauro, Legal Times

12-7-07 -- The Supreme Court appeared deeply divided Wednesday over just how much due process Guantanamo Bay detainees deserve in challenging their imprisonment -- and how much they already have. . . . Twice before, related issues have gone before the high court, and twice the Court has ruled in favor of the detainees. But on Wednesday, that trend seemed in jeopardy, as justices weighed the impact of a law passed by Congress last year that stripped U.S. courts of jurisdiction to hear habeas corpus appeals from detainees and established a limited appeal process. . . . It also appeared possible that the Court will return the case to lower courts for a fuller examination of the adequacy of the new appeals process as a substitute for traditional habeas corpus review. . . . But neither side wants further delay. The Bush administration hopes to proceed with military tribunals that have been revised several times and ensnared in litigation, and the detainees' representatives seek an end to nearly six years of unreviewed imprisonment at the U.S. base in Guantanamo Bay, Cuba.

Justices Will Decide Who Owns Money Misappropriated by Marcos

Suit stems from Merill Lynch account the Philippines dictator set up in 1972

The Associated Press

12-5-07 -- The Supreme Court on Monday stepped into a dispute over who owns money misappropriated by Philippines dictator Ferdinand Marcos, a case in which the United States supports the government of the Philippines. . . . The Republic of the Philippines claims ownership of the $35 million at issue and asked the justices to take the case after two U.S. courts awarded the stolen funds to 10,000 victims of the Marcos regime. . . . The lawsuit stems from an account set up with a $2 million deposit by Marcos in 1972 at Merrill, Lynch, Pierce, Fenner & Smith Inc. in New York. Merrill Lynch went to court in 2000 to determine who the money belonged to. . . . The Philippines government asserted sovereign immunity and said the case could not proceed in U.S. courts.

Race to the Bottom

The Supreme Court takes on the O.J.-obsessed prosecutor.

By Dahlia Lithwick

12-5-07 -- The central facts in Snyder v. Louisiana are not in dispute. Allen Snyder stabbed his estranged wife and her boyfriend in August 1995. The boyfriend died. An all-white jury found him guilty and imposed the death penalty. The question for the high court today is whether the Louisiana prosecutor in the case improperly used peremptory challenges to exclude all five black prospective jurors because of their race. The question that may have nothing whatever to do with this case—although it sure makes things wacky—is whether that same prosecutor then went on to invoke the O.J. Simpson trial to inflame his all-white jury, telling them, ominously, that "the perpetrator in that case ... got away with it."

Court to rule on right to lawyer

Lyle Denniston, Scotus Blog

12-03-07 -- The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only ataches when a prosecutor prepares to or makes a charge. . . .  The case of Rothgery v. Gillespie County, Texas (07-440) was one of three newly granted cases.  The other two cases involve an appeal by the Philippine government in a dispute over control of the assets of the late president, Ferdinand E. Marcos, and an appeal by the federal government over the right to sue the government for a tax refund in a constitutional lawsuit, if the taxpayer has failed to first pursue a tax refund claim with the Internal Revenue Service and then filed a refund claim in federal court.

The Supreme Court Faces the Kangaroo Courts

By Joanne Mariner

12-03-07 -- This week, the Supreme Court will consider--again--whether prisoners held at Guantanamo have the right to go to court to challenge their detention. At oral argument on Wednesday in the consolidated cases of Boumediene v. Bush and Al Odah v. U.S., the Court will hear opposing views as to the constitutionality of the Military Commissions Act of 2006, which purports to bar the courts from hearing habeas corpus petitions brought by detainees on Guantanamo. . . . Constitutional Questions / In Rasul v. Bush, decided in 2004, the Court held that the habeas jurisdiction of the federal courts extends to Guantanamo. However, Congress attempted to overrule the impact of that decision in passing the Military Commissions Act last year.

November 2007

Supreme Court Argument Report:
Justices Examine State Law on Internet Tobacco Sales

Laurel Newby, Law.com 

11-30-07 -- The Supreme Court justices on Wednesday considered whether the Federal Aviation Administration Authorization Act of 1994 pre-empts a Maine law aimed at blocking Internet sales of tobacco to minors. The parties disagreed sharply about whether Congress left the door open for state regulation after the statute's enactment, and also about the extent of the burden that air and ground carriers would bear in complying with Maine's law. . . . Maine's Tobacco Delivery Law requires that carriers check that packages containing tobacco products have been sent from licensed retailers and verify a purchaser's age on delivery. The New Hampshire Motor Transport Association challenged the law, and the district court held that it was pre-empted by the FAAAA, which prohibits states from regulating the rate, route or service of an air, ground or motor carrier. The 1st U.S. Circuit Court of Appeals affirmed.

Court to decide detainees' rights

Justices try to balance protection of nation, protection of individual

By Joan Biskupic, USA TODAY 

11-28-07 -- Supreme Court justices will hear a dispute next week over the rights of Guantanamo detainees that presents a fundamental question of prisoners' ability to be heard in court. The case arises as the justices increasingly exert their authority in terror-related clashes. . . . In recent years, the Supreme Court and President Bush have engaged in a contentious series of chess moves over the legal rights of foreigners held at Guantanamo and detainees elsewhere. Three times since 2004, the court ruled against Bush detention policies. In opinions and statements from the bench, the justices have shown particular impatience with administration efforts to keep detainees' cases from federal judges. . . . "The court doesn't like to be told, 'You don't have a role to play here,' " University of Chicago law professor Dennis Hutchinson says.

Supreme Court Takes On 'Me, Too' Age Bias

One of four critical age bias cases set for high court review

Marcia Coyle, The National Law Journal

11-26-07 -- Employers predict juror confusion and prejudice, minitrials within trials, and lengthy and costly discovery. Workers warn of meritorious claims lost forever and a major civil rights statute undermined. . . . In a classic confrontation between management and labor, the U.S. Supreme Court on Dec. 3 will hear arguments in a job bias case with implications far beyond the statute at its core, the Age Discrimination in Employment Act. . . . Sprint/United Management Co. v. Mendelsohn, No. 06-1221, is one of four age bias-related cases on the high court's docket this term. It asks the justices whether a district court must admit so-called "me, too," evidence, or testimony by people in the same company as the plaintiff who claim they suffered discrimination from a different supervisor. . . . "There are certain parts of the ADEA that are specific to the ADEA, but this is a more general question about the proof scheme under all employment discrimination cases," said employment law scholar Paul Secunda of the University of Mississippi School of Law. . . . The decision may apply equally to the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964; race discrimination claims under 42 U.S.C. 1981; and certain parts of the Family and Medical Leave Act, he said. . . . "There is potentially a big impact," said Secunda.

Retirement-Fund Case at Top U.S. Court May Bolster Right to Sue

By Greg Stohr, Bloomberg

11-26-07 -- James LaRue says he tried to change the investments in his employer-offered 401(k) retirement plan in time to avoid the brunt of the 2001-02 stock market plunge. . . . The problem, LaRue claims in a lawsuit the U.S. Supreme Court will consider today, is that his employer didn't do as he asked, costing him almost $100,000. ``He had some money in high- risk investments, and he wanted to get rid of those and put the money in government bonds,'' said LaRue's lawyer, Robert Hoskins of the Foster Law Firm in Greenville, South Carolina. . . . The justices will decide whether LaRue can try to recoup the money by suing his former employer, Dallas-based management- consulting firm DeWolff Boberg & Associates. The court's answer will shape the rights of the 70 million Americans who hold $3.3 trillion in 401(k) plans and other so-called defined- contribution retirement programs.

High Court May Shift in Cases Over Bad Lawyering

Defense lawyers fear that justices are backing away from opinion that set standards for ineffective assistance claims

Tony Mauro, Legal Times

11-14-07 -- The Supreme Court in 1984 established new standards for assessing whether a lawyer's performance was so bad that his or her client's right to a fair trial was compromised. . . . "An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair," the Court proclaimed in Strickland v. Washington. . . . Twenty-three years later, however, many experts say that the promise of Strickland has gone unfulfilled, with underpaid and overwhelmed lawyers still allowed to give indigent defendants subpar representation. . . . And now criminal defense lawyers fear that the Supreme Court is starting to retreat from Strickland itself. On Nov. 5, the high court agreed to consider Arave v. Hoffman, an Idaho case that will weigh the obligation of lawyers to explain to their clients the consequences of not accepting a plea agreement.

Supreme Court Argument Report: An Arbitration 'Case of the Century'?

Laurel Newby, Law.com 

11-9-07 -- The Supreme Court justices on Wednesday considered a case concerning whether the Federal Arbitration Act precludes federal courts from reviewing arbitration awards for factual or legal error if parties have specified in an arbitration agreement more expansive judicial review than that provided for in the statute. Justice Stephen Breyer jokingly called it "the case of the century," saying that, because of the many potential issues for remand, the case might "take a hundred years to finish." . . . In an environmental cleanup dispute between Mattel Inc. and its Oregon landlord, Hall Street Associates LLC, an arbitration agreement between the parties provided that the arbitrator's findings of fact and conclusions of law could be reviewed by the district court at the request of either party, and that the court could vacate, modify or correct an award if the findings of fact were not supported by substantial evidence or the conclusions of law were erroneous. . . . Carter G. Phillips, counsel for petitioner Hall Street, conceded that "there is a limit to party autonomy" under the FAA, but argued that parties in arbitration agreements are "perfectly free to decide whether they want ... issues to be decided conclusively by the arbitrator or to have them adjudicated at the end of the day by the federal court."

A Question of Commas in D.C. Gun Case. Period.

Tony Mauro, Legal Times

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." — TEXT OF THE SECOND AMENDMENT

11-9-07 -- When Supreme Court justices sit down Friday to ponder whether they should rule on the constitutionality of Washington, D.C.'s strict gun control ordinance, they should be forewarned that they are stepping into a quagmire. . . . No, not the political quagmire over gun control. Another suddenly intense debate is enveloping the case -- this one over what all those commas in the Second Amendment meant in late 18th-century America. . . . It may sound way beyond trivial, but it's not: The grammar war is under way. . . . You can blame the U.S. Court of Appeals for the D.C. Circuit for igniting this esoteric debate. It ruled on March 9 that because of the Second Amendment's second comma, the first half of the amendment -- the militia half -- is basically a throat-clearing preface that does not qualify the individual right to bear arms that the second half protects. Judge Laurence Silberman, who wrote the 2-1 decision, went on to conclude that the district's handgun ban violates that individual right.

Supreme Court Argument Report:
EEOC Takes a Beating From the Justices

Stevens takes chief justice for a walk down memory lane

Laurel Newby, Law.com

11-7-07 -- The Supreme Court on Tuesday heard argument in the first of the term's closely watched employment cases, concerning what constitutes a charge of discrimination under the Age Discrimination in Employment Act. The Equal Employment Opportunity Commission received a drubbing from several members of the Court for its inconsistencies in processing such claims. And in another case, Chief Justice John Roberts Jr. got a reminder of his past life as a high court advocate. . . . On Dec. 3, 2001, Federal Express courier Patricia Kennedy filed an intake questionnaire and affidavit with the EEOC alleging age discrimination in violation of the ADEA. Kennedy and a number of other FedEx employees filed a class action suit on April 30, 2002. Kennedy subsequently filed a formal charge with the EEOC on May 30, 2002. The case is Federal Express Corporation v. Holowecki, et al. . . . Under the ADEA, an individual seeking to bring a civil action against his or her employer must file a charge of discrimination with the agency, then wait 60 days to bring suit, during which time the EEOC is to notify the employer of the charge and seek conciliation between the parties.

'This Case Is Like Milk':
High Court Considers State Tax on Municipal Bonds

Supreme Court Argument Report: Justices also hear challenge to state valuation of railroad property

Laurel Newby, Law.com

11-7-07 -- During argument Monday in a Commerce Clause challenge to a state practice of making income from in-state municipal bonds tax-exempt, Supreme Court Justice Stephen Breyer considered whether the bond market is more like garbage collection or the milk industry. In a second case involving state taxation, Justice David Souter asked whether Congress, in a statute prohibiting tax discrimination against railroads, "was engaging in Pontius Pilate's exercise, 'what is truth?'" . . . In Department of Revenue of Kentucky v. Davis, Kentucky taxpayers George and Katherine Davis filed suit alleging that the state violates the Commerce Clause by exempting from taxation interest income from Kentucky municipal bonds while taxing income from out-of-state bonds.

Supreme Court Argument Report: Justices Get Metaphysical

Laurel Newby, Law.com 

11-2-07 -- In a lively hour of argument Wednesday, the Supreme Court justices debated the distinction between rights and remedies, the Court's authority to promulgate new constitutional rules through its decisions, and an issue that Justice Stephen Breyer termed "metaphysical." . . . Throughout the argument in the case, which involves states' power to apply U.S. Supreme Court decisions to state criminal procedures using a retroactivity standard broader than the federal one, the justices frequently jumped in to respond to their colleagues' questions and comments themselves -- at one point leaving one of the arguing attorneys completely out of the mix for some time. . . . In Danforth v. Minnesota, the petitioner is challenging his 1999 conviction based on the high court's 2004 confrontation clause ruling Crawford v. Washington, which limited the use of out-of-court testimony in criminal trials. The Minnesota Supreme Court, applying the U.S. Supreme Court's 1989 precedent in Teague v. Lane, found that the Crawford holding establishes a new rule of federal constitutional procedure, and that the the state could not apply it under its own retroactivity principles.

October 2007

Supreme Court Argument Report: The Tail of the Dog

Laurel Newby, Law.com

10-31-07 -- The U.S. Supreme Court heard argument in two cases Monday on diverse topics -- but both had the justices spending the majority of the time parsing statutory language and very little time discussing policy objectives. . . . In Klein & Co. Futures v. Board of Trade of the City of New York, the Court considered whether the class of persons who can recover damages for losses from the Board of Trade of the City of New York in the event the board engages in illegal conduct includes those who process trades as well as those who buy and sell commodity contracts. . . . Argument in Klein focused on the statutory construction of a provision of the Commodities Exchange Act that provides the right to recover actual losses to those "engaged in any transaction on" or "subject to the rules of" a commodity board of trade. . . . Chief Justice John Roberts Jr. said that "the market is there for the buyers and the sellers. That's the central transaction." Whether or not clearinghouses or futures commission merchants (FCMs) such as petitioner Klein & Co. Futures Inc. are covered by the statute, Roberts said, "it's an awful big stretch to say they are central to the market."

Supreme Court Argument Report: Justices Consider Dueling Hypotheticals in Child Porn Case

Laurel Newby, Law.com

10-31-07 -- The Supreme Court justices on Tuesday wrestled with a challenge to the constitutionality of a federal child pornography law, with counsel for both sides fielding tough questions that included hypotheticals involving popular mainstream movies, along with what Justice Stephen Breyer described as "schoolboy behavior." . . . In United States v. Williams, Michael Williams challenges what is known as the anti-pandering provision of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (the PROTECT Act). The act was passed by Congress in 2003 after the Court struck down two provisions of the 1996 Child Pornography Protection Act dealing with "virtual" child pornography (images of child pornography that do not depict real children). . . . The PROTECT Act provision prohibits knowingly advertising, promoting, presenting, distributing or soliciting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material," is child pornography. . . . The 11th U.S. Circuit Court of Appeals held that the statute was vague, stating that "the non-commercial, non-inciteful promotion of illegal child pornography, even if repugnant, is protected speech under the First Amendment."

Fight over TV indecency is on high court's doorstep

Case tests FCC's attempt to limit expletives

By Joan Biskupic, USA Today

10-25-07 -- The dirty words that started the ruckus were fleeting, but their consequences for television have been long-lasting. . . . At the December 2002 Billboard Music Awards, Cher waved her "Lifetime Achievement" trophy and said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em." At the Golden Globes the next month, U2 lead singer Bono accepted an award by saying, "This is really, really (expletive) brilliant." At another Billboard Awards in 2003, TV star Nicole Richie used expletives as she joked about removing cow manure from a purse. . . . As the Federal Communications Commission was reviewing viewer complaints about the incidents, Janet Jackson's breast was exposed during a Super Bowl halftime show on Feb. 1, 2004. The next month, the FCC, in an unprecedented move, said that even a one-time use of vulgarities associated with "sexual and excretory functions" violated indecency standards. It cited NBC for Bono's remarks, then Fox Television for those by Cher and Richie. . . . The FCC's stance has inspired a legal battle — now on the Supreme Court's doorstep — over how rigorously the government can police what's on TV.

Right to confront accuser propels pedophile's case

The U.S. Supreme Court will hear a Minnesota man's appeal over a 1996 trial in which the victim, 6, testified on videotape.

By Kevin Diaz, Star Tribune

10-22-07 -- Stephen Danforth has followed a twisted legal path from disbarred Minnesota attorney to test case for the right to confront an accuser. . . . From the Prairie Correctional Facility in Appleton, Minn., where he is serving a 26-year term for sexually abusing a 6-year-old boy, he will follow a Supreme Court case he launched in his new incarnation as a jailhouse lawyer. . . . His case, Danforth vs. State of Minnesota, will be heard before the U.S. Supreme Court later this month. But there will be little, if anything, said about the day in July 1995 when he molested the son of a friend at a swimming pool in Richfield. . . . Instead, the case, like so many that reach the nation's highest court, will turn on intricate rules of criminal procedure, testing the reach of federal court rulings into state courts.

Justices to Hear Challenge to Money-Laundering Law

By Linda Greenhouse

10-17-07 -- The Supreme Court agreed on Monday to decide whether hiding the proceeds of an illegal activity, like a drug transaction, can be prosecuted as money laundering under federal law. . . . This straightforward statutory question has roiled the lower federal courts, prompting a complaint by two conservative members of the federal appeals court in New Orleans earlier this year that the government’s expansive interpretation of the most commonly used money-laundering statute amounted to “prosecution run amok.” . . . That complaint, which came in a dissenting opinion, was perhaps what led the Supreme Court to decide, over the Justice Department’s opposition, to review the decision that had prompted it. The case is an appeal by a man who was stopped on a Texas highway on his way to the Mexican border and found to be carrying $83,000 in cash hidden under the floorboards of his car. . . . The government’s theory was that the driver’s behavior in concealing the cash met the description of international money laundering, defined in a 1986 statute as transportation or transmission designed to “conceal or disguise the nature, the location, the source, the ownership, or the control” of the proceeds of illegal activity.

Supreme Court Poised to Unleash Trial Lawyer Onslaught?

Adverse Decision in Stoneridge Investment Partners v. Scientific-Atlanta Would Expand the Reach of Class-Action Lawsuits and Resume Jackpot Justice Avalanche

CFIF.ORG

10-12-07 -- The United States Supreme Court stands at the precipice of a decision that could unleash a trial lawyers' orgy of frivolous new securities litigation, and nothing short of America's economic competitiveness teeters on that precipice.  . . . In one of the most critical business-related cases in recent memory, the Court heard oral arguments this week in Stoneridge Investment Partners v. Scientific-Atlanta.  The issue presented is whether disgruntled shareholders and their trial lawyer shepherds will be allowed to sue not just the crime-committing company that actually defrauded them, but also third-party companies with whom that fraudulent company conducted business.  . . . In other words, trial lawyers would be able to target deep-pocketed companies that didn't mislead the public.  Even the threat of such lawsuits would cost America's economy billions in litigation and settlement costs.

High Court Justices Question Power of Bush Order
in 'Medellin' Case

Presidential directive that Texas heed World Court ruling on rights of jailed foreign nationals is aggressively challenged

Tony Mauro, Legal Times 

10-12-07 -- In a sometimes chaotic oral argument Wednesday that exceeded the usual time limits, the Supreme Court struggled to sort out a death penalty case that pits the state of Texas against its former governor, President George W. Bush, in a battle over states' rights and the scope of international treaties. . . . The argument in Medellin v. Texas, scheduled for one hour, ended up lasting an hour and 26 minutes, with justices asking a total of 176 questions. All three lawyers addressing the Court were allowed to blow past the red lights on the podium that signal the end of their allotted time and usually force advocates to end their arguments in mid-sentence, if not mid-word. . . . Justices were so aggressively inquisitive that at one point Justice John Paul Stevens asked meekly if the lawyer before him could be allowed to answer his question "without interruption by all of my colleagues."

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The U.S. Supreme Court has posted online the transcript of oral argument in Medellin v. Texas, No. 06-984: You can access it at this link.

NYC Loses Round Before Supreme Court on Tuition Payback Policy for Learning-Disabled Students

Mark Fass, New York Law Journal 

10-12-07 -- The U.S. Supreme Court has affirmed a federal appellate decision allowing the father of a learning-disabled child to seek private school tuition reimbursement from New York City without first giving the city's public school program a chance to meet the boy's needs. . . . Just nine days after hearing oral arguments in Board of Education v. Tom F., 06-637, the Court split 4-4, thereby affirming the 2nd U.S. Circuit Court of Appeals' finding in favor of Mr. F. -- the boy's father, former Viacom chief Tom Freston. . . . In its two-sentence, per curiam opinion, the Court did not reveal the judges' individual votes, stating only, "The judgment is affirmed by an equally divided Court. Justice Kennedy took no part in the decision of this case." . . . Per Court protocol, Kennedy did not reveal the reason for his recusal. . . . The case centers on conflicting interpretations of a 1997 amendment to the Individuals with Disabilities Education Act (IDEA), which requires states to provide "free appropriate" public education for students with disabilities. The specific issue is whether that law requires children -- here, Freston's son, Gilbert -- to first receive "special education and related services" from a public agency before their families pursue reimbursement.

Justices Appear Skeptical of Investor Class Actions in 'Stoneridge' Case

Tony Mauro, Legal Times

10-10-07 -- Weighing what has been billed as the securities fraud case of the decade, the Supreme Court on Tuesday seemed poised to slam the door shut on investor class actions aimed at deep-pocket third-party defendants such as accountants, lawyers and bankers. . . . The fast-paced, hourlong oral arguments in Stoneridge Investment Partners v. Scientific-Atlanta and Motorola played out before a Supreme Court chamber packed with spectators, including Enron plaintiffs, who have a big stake in the outcome of the case. . . . Chief Justice John Roberts Jr. took a leading role in the arguments, repeatedly asserting that the high court should "get out of the business" of expanding private causes of action for investors without the express say-so of Congress. "Congress has taken over," Roberts said, citing recent legislation aimed at curtailing investor class actions.

Supreme Court Argument Report:
Calling Noam Chomsky and Gertrude Stein

In linguistics debate, will justices decide that a use is a use is a use?

Laurel Newby, Law.com

10-10-07 -- Before hearing argument in the closely watched Stoneridge securities fraud case Tuesday, the justices considered Watson v. U.S., a case centered on an issue of statutory interpretation that has split the circuits: whether the receipt of a firearm in exchange for drugs constitutes "use" of the firearm during and in relation to a drug trafficking offense. . . . An intriguing portion of the argument and the justices' questioning circled around the normal or natural meaning of the word "use." Several of the justices wrestled with what Justice Stephen Breyer and others termed the case's "linguistic" issues -- but they seemed to differ on how dispositive those matters were.

Outrage erupts over Bush demands in murder case

Appeal of torture-slaying conviction could set U.N. law over U.S.
© 2007 WorldNetDaily.com

10-10-07 -- President Bush's demands in the Medellin murder case, now being heard before the U.S. Supreme Court, are "bizarrely grotesque," according to the chief counsel for the Alliance Defense Fund. . . . And the warning from ADF Chief Counsel Benjamin Bull notes that the case could result in U.S. laws being subjugated to U.N. resolutions and rules to the point that local police officers will have to spend more time studying international law than catching criminals. . . . "The notion that an international body can Mirandize the right of an illegal immigrant to call a consulate, so that if the local police trip up and innocently don't to it, a convicted rapist-torturer-murderer goes free, goes beyond bizarrely grotesque," Bull, whose organization has filed an amicus brief on the issue, told WND. . . . At issue is the death penalty verdict for Jose Medellin, who confessed in 1993 to participating in the rape and murder of two Houston teenagers. Jennifer Ertman and Elizabeth Pena were sodomized and strangled with their shoe laces. Medellin then boasted of keeping one girl's Mickey Mouse watch as a souvenir of the crime.

Supreme Court Argument Report: Opening Day

Laurel Newby, Law.com

10-2-07 -- On the traditional first Monday in October, Chief Justice John Roberts Jr. announced from the bench that he was pleased to open a new term of the U.S. Supreme Court. It is a term that is already taking shape with high-profile cases and contentious issues. Law.com's new Supreme Court argument report provides argument highlights -- as well as an unofficial tally of justice behavior and a quote of the day. . . . First up on Monday morning: the consolidated cases of Washington State Grange v. Washington State Republican Party and Washington v. Washington State Republican Party. At issue is a state election system in which candidates may self-select a political party preference on the ballot without proving an affiliation with, or nomination from, that party. Voters can vote for any candidate, and the two candidates who receive the highest number of votes in the primary, regardless of party affiliation, advance to the general election.

Supreme Court Argument Report:
Justices Tackle Sentencing, Again

Laurel Newby, Law.com

10-2-07 -- Another Supreme Court term, another chapter in the sentencing saga. The justices heard argument Tuesday in two cases that test how much discretion federal district court judges have in sentencing defendants and examine the standard federal circuit court panels should apply in reviewing those sentences on appeal. At issue in one of the cases: the controversial 100:1 ratio used in calculating sentences for trafficking crack as opposed to powder cocaine. . . . After the Court's 2005 decision in United States v. Booker made the U.S. Sentencing Guidelines advisory rather than mandatory and held that appeals courts should review sentences for "reasonableness," the circuits adopted various standards for that review. Most fall under the general category of proportionality review, whereby the more the district court deviates from the guidelines range, the stronger the justification needed for the variance. . . . Tuesday's cases, Gall v. United States and Kimbrough v. United States, pick up where the Court left off last term, when the justices ruled in Rita v. United States that circuit courts could presume a within-guideline sentence to be reasonable. A second sentencing case last term, Claiborne v. United States, concerning circuit court standards for judging reasonableness of below-guidelines sentences, was vacated after oral argument due to the death of the petitioner.

Supreme Court Heads Into New Term

Some see rightward drift stalled in array of criminal law cases

Tony Mauro, Legal Times 

10-1-07 -- After bulking up the Supreme Court's docket on Sept. 25 with 17 additional cases, the justices head into their new term today facing a full array of hot button issues -- executive power, death penalty, Internet free speech -- that will continue to measure just how far to the right the Roberts Court is heading on the eve of a presidential election. . . . Last term was widely viewed as a sharp turn by the Court in a conservative direction. But this term might be different. At least one keen Court-watcher predicts that simply because of the different lineup of cases this term, by next June it will be conservatives, not liberals, who will be angry at the Supreme Court. . . . "The take-away from this term will be much less conservative," says Supreme Court specialist Thomas Goldstein of Akin Gump Strauss Hauer & Feld, who caused a stir by predicting more liberal outcomes in a post on his widely read SCOTUS blog. He cautions that he is not predicting a liberal shift in the justices as such, but merely that by looking at the Court's highest profile cases one by one, the liberal side may win in many of them.

September 2007

Supreme Court Recusals

The justices should explain the reasons when they remove themselves from cases.

Washington Post Editorial

9-27-07 -- IN MARCH, Chief Justice John G. Roberts Jr. recused himself from what has been billed as the most important securities case to come before the Supreme Court in decades. Last week, he did an about-face, announcing that he will be sitting on the bench when the case of Stoneridge Investment Partners v. Scientific-Atlanta et al. is argued on Oct. 9. Justice Roberts did not explain why he removed himself; nor did he offer an explanation of why he now believes that he can properly participate in the matter. Justice Stephen G. Breyer also recused himself last spring without explanation and remains off the case. This silence is unnecessary and could be counterproductive. . . . A justice must remove himself from deciding a case if his "impartiality might reasonably be questioned." A financial interest or the significant participation of a close family member in a case could serve as triggers. Justices have traditionally declined to elaborate on why they've stepped aside.

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

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