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United States Supreme Court
(2008-2009) Session
SCOTUS Fall 2008 Decisions
(2008-2009 Session)
December 2008
Court action sought on Massey-Benjamin
Brief asks justices be barred from voting on cases involving large
campaign contributors
In a brief filed this week, a coal
company owner and his company asked the U.S. Supreme Court to make
it illegal for a state Supreme Court justice to accept millions in
campaign contributions from an individual and then vote on legal
decisions involving that same individual.
By
Paul J. Nyden, Staff writer
12-31-08 --
In a brief filed this week, a coal company owner and his company
asked the U.S. Supreme Court to make it illegal for a state Supreme
Court justice to accept millions in campaign contributions from an
individual and then vote on legal decisions involving that same
individual. . . . The brief was filed Monday by lawyers for Hugh
Caperton and Harman Mining Corp., in their appeal of a case
involving a $50 million Boone County jury verdict against A.T.
Massey Coal Co., now Massey Energy. With interest, that verdict is
now worth more than $76 million. . . . Justice Brent Benjamin cast
the deciding votes in two 3-2 decisions to overturn the verdict,
after Massey CEO Donald L. Blankenship spent about $3 million of his
own money to get Benjamin elected in November 2004, defeating
incumbent Justice Warren McGraw. . . . The U.S. Supreme Court has
scheduled oral arguments in the case for March 3. . . .
Brief for Petitioners
click here.
Supreme Court to talk about Obama 3rd time
Berg eligibility case set for
conference Jan. 9
© 2008 WorldNetDaily
12-19-08 --
One of the original legal challenges to President-elect Barack
Obama's eligibility for office to reach the U.S. Supreme Court now
has been scheduled for a conference, a meeting at which the justices
discuss its merits and whether to step into the fray. . . .
Online schedules posted by the court show the case
brought by attorney Philip J. Berg is set for a conference Jan. 9. .
. . The case is one among several that already have reached the U.S.
Supreme Court and address the issue of Obama's eligibility to occupy
the Oval Office under the U.S. Constitution's requirement that
presidents be "natural born" citizens. . . . Berg has submitted
several requests for injunctions, seeking the court's order to stay
proceedings in the electoral process until his case is heard, but
the request have been rejected. . . . His original claim, however,
remains on track to be heard.
Justice Kennedy Rejects 2 More Challenges to Obama Citizenship
The
Associated Press
Supreme Court Justice Anthony Kennedy
has rejected two more efforts to get the Court to consider whether
President-elect Barack Obama is eligible to take office. . . .
Kennedy on Wednesday denied without comment an appeal by Philip J.
Berg, a Pennsylvania attorney, that claims Obama is either a citizen
of Kenya or Indonesia and is ineligible to be president because he
is not a "natural-born citizen" of the U.S. as required by the
Constitution. Another appeal from California, based on Berg's
claims, also was denied. . . . Individual justices and the entire
Court
have turned down emergency appeals over Obama's
eligibility at least seven times in the past six weeks.
Animal cruelty case pushed to top court
By Paula
Reed Ward, Pittsburgh Post-Gazette
12-17-08 --
The Department of Justice has asked the U.S. Supreme Court to take
up an animal cruelty case, arguing that an appeals court erred in
declaring unconstitutional a federal law that bans selling
depictions of animals being tortured. . . . . The first case to go
to trial under the new law -- passed in 1999 -- occurred in U.S.
District Court in Pittsburgh. Robert J. Stevens, a Virginia man who
sold videos of pitbulls fighting and killing pigs, was charged with
three counts of selling depictions of animal cruelty. . . . . The
law was initially written to protect small animals that are maimed,
tortured and killed in "crush videos," in which a woman usually in
high heels stomps on animals as a type of sexual fetish. . . . .
However, in 2004, the U.S. attorney's office in Pittsburgh applied
it to dogfighting videos. . . . . In January 2005, a jury convicted
Mr. Stevens after deliberating for just 45 minutes. . . . . He
appealed his conviction and 37-month prison sentence to the 3rd U.S.
Circuit Court of Appeals, arguing that the videos were protected
free speech.
Supreme Court Issues Surprise Ruling Against Cigarette Makers in
Pre-emption Case
Tony
Mauro, Legal Times
12-16-08 --
In a surprise 5-4 decision Monday, the Supreme Court ruled that a
state lawsuit brought by Maine smokers could proceed against
Altria Group, parent company of
Philip Morris USA, for fraudulently advertising the
health benefits of "light" cigarettes. . . . . Justice John Paul
Stevens, writing for the majority in
Altria Group v. Good (pdf), rejected Altria's assertion
that the Federal Cigarette Labeling and Advertising Act pre-empts
state tort actions. The ruling runs against the Court's recent
trend in favor of federal pre-emption in cases involving
tort litigation against businesses. . . . . Altria had argued that
in passing the law, Congress sought to regulate advertising with one
set of rules, not 50 that might be imposed through state actions.
The company was represented
at oral argument by former solicitor general Theodore
Olson, now a partner at Gibson, Dunn & Crutcher.
U.S. Supreme Court Revives Former Guantanamo Detainees' Case
The
Associated Press
12-16-08 --
The U.S. Supreme Court breathed new life Monday into a lawsuit filed
by former detainees at Guantanamo Bay over alleged torture and abuse
of their religious rights. . . . . The justices threw out an appeals
court ruling that dismissed claims by four British men that, during
their time at the U.S. naval base in Cuba, they were beaten,
shackled in painful stress positions, threatened by dogs and
subjected to extreme medical care. . . . . They also allege they
were harassed while practicing their religion, including forced
shaving of their beards, banning or interrupting their prayers,
denying them copies of the Koran and prayer mats and throwing a copy
of the Koran in a toilet bucket.
Supreme Court turns down another appeal that claims Obama ineligible
to be president
Associated Press
12-15-08 --
The Supreme Court has turned down another challenge to Barack
Obama's eligibility to serve as president because of his
citizenship. . . . The appeal by Cort Wrotnowski of Greenwich, Conn., was denied Monday
without comment. . . . Wrotnowski argued that Obama was a British
subject at birth and therefore cannot meet the requirement for
becoming president. . . . He wanted the high court to halt
presidential electors from meeting to formally elect Obama as
president. . . . Echoing an appeal that was rejected by justices
last week, Wrotnowski said that since Obama had dual nationality at
birth — his mother was American, his Kenyan father was a British
subject — he cannot possibly be a "natural born citizen."
U.S. Supreme Court to Consider $500 Million Asbestos Settlement
The
Associated Press
12-15-08 --
The U.S. Supreme Court agreed Friday to consider reinstating a
roughly $500 million settlement of
asbestos-related lawsuits against the Travelers Companies Inc.
. . . The settlement would also block any new lawsuits against
Travelers arising out of the insurance company's long relationship
with Johns Manville Corp., once the world's largest producer of
asbestos. . . . Travelers has been named in dozens of lawsuits
claiming that it tried to hide the dangerous health effects of
asbestos. Asbestos is a mineral that was commonly used until the
mid-1970s in insulation and fireproofing material. Exposure can
increase the risk of lung cancer, mesothelioma and other ailments,
according to federal health agencies. . . . The company has argued
that asbestos-related claims should be paid out of a trust created
by Johns Manville in the 1980s and approved by a federal bankruptcy
judge. Money for the fund came largely from insurers.
Inside the High Court: The Mouse in the Coke Bottle
Laurel
Newby, Law.com
12-11-08 -- During
Supreme Court arguments Wednesday in a case involving claims against
high-ranking government officials over post-Sept. 11 detention
practices, discussion frequently turned to an unusual hypothetical
scenario posed by Justice Stephen Breyer: a lawsuit over a mouse
found in a bottle of Coca-Cola. Though Chief Justice John Roberts
Jr. at one point called the hypothetical "by its nature particularly
absurd," he and the other justices who adopted it seemed to find it
quite instructive. . . . For complete coverage of Wednesday's
arguments in Ashcroft v. Iqbal, see Tony Mauro's Legal Times
story, "Top
Bush Officials Unlikely to Face Personal Liability for 9/11
Detentions."
Supreme Court Weighs How Maternity Leaves Affect Pensions
Sam
Hananel, The Associated Press
12-11-08 -- Several
Supreme Court justices questioned on Wednesday whether AT&T Corp. is
discriminating against former employees by paying smaller retirement
checks to women who took pregnancy leaves in the 1960s and 1970s. .
. . The Court
heard arguments in the case of
four women who lost seniority credit when they took maternity
leave before passage of a 1979 law that barred the practice
of treating pregnancy leaves differently from other disability
leaves. . . . The size of retirement paychecks for thousands of
women hangs in the balance as the Court considers whether to credit
decades-old maternity leaves in calculating pension benefits.
Supreme Court Closes Book on Photographer's Case
R. Robin
McDonald, Fulton County Daily Report
12-10-08 -- The
U.S. Supreme Court has closed the book on an 11-year-old copyright
case that, in its final form, granted The National Geographic
Society -- and by extension, other publishers -- the right to
reproduce its magazine archive in digital format without paying
additional royalties to freelance contributors. . . . The high court
on Monday denied a petition for a writ of certiorari from Florida
undersea photographer and former National Geographic magazine
contributor Jerry Greenberg. In July, the full 11th U.S. Circuit
Court of Appeals
voted 7-5 in favor of National Geographic. . . .
Greenberg petitioned the high court for a hearing, claiming that the
11th Circuit, and the 2nd Circuit in a nearly identical case, had
misinterpreted the Supreme Court's 2001 landmark copyright ruling,
Tasini v. New York Times. . . . But the high court,
without comment, let stand rulings that Tasini -- which bars
publishers from selling published articles to Internet databases
without securing new copyright permissions from freelance
contributors -- did not prohibit publishers from selling their
digital archives on CD-ROMs without securing new copyright
contracts.
Justices to mull Obama citizenship again
Tom
Ramstack, Washington Times
12-10-08 --
On the same day the Supreme Court declined to hear one appeal
challenging Barack Obama's right to become president because of
questions about his citizenship, Justice Antonin Scalia distributed
another appeal on the same issue for the court to consider. . . .
The new case, Cort Wrotnowski v. Susan Bysiewicz, Connecticut
Secretary of State, is scheduled to be discussed by the justices at
their Dec. 12 private conference. They plan to decide whether to
give the case a hearing - again on whether the British citizenship
of Mr. Obama's father makes the president-elect ineligible to assume
the office. . . . Eleanor Holmes Norton, the District's nonvoting
Democratic delegate to Congress, speculated that the Supreme Court
is considering appeals that challenge Mr. Obama's citizenship only
long enough to reject them "and lay to rest manufactured doubts
about the legitimacy of Obama's election before the inauguration." .
. . The Supreme Court on Monday turned down the previous appeal
filed by New Jersey attorney Leo C. Donofrio. . . . Unlike
Mr. Donofrio's appeal, Mr. Wrotnowski's case "includes a more solid
brief and a less treacherous lower court procedural history," Mr.
Donofrio wrote on his Internet blog,
naturalborncitizen.wordpress.com.
Justices Question Withholding Of Evidence in Capital Case
Tenn. Prosecutors Didn't Turn Over Proof of Killer's Drug Use
By
Robert Barnes, Washington Post Staff Writer
12-10-08 --
The Supreme Court's oral arguments in Cone v. Bell yesterday began
with exasperation, Justice Antonin Scalia incredulous that lawyers
were at it again on behalf of a brutal murderer who the court twice
has said could be put to death. . . . "How long has this case been
going on?" Scalia asked the lawyer for Gary Bradford Cone, who
bludgeoned 93-year-old Shipley Todd and his 79-year-old wife,
Cleopatra, at their home in Memphis in the summer of 1980. . . . The
judge asked: "And you want to go back down again" for more hearings?
. . . But the arguments ended an hour later with a different emotion
-- indignation -- as several justices angrily questioned why
Tennessee prosecutors had withheld evidence that supported Cone's
only defense: that he had committed the crimes during an amphetamine
psychosis.
Supreme Court Argument Report: A Dirty Look and a Bulge
Laurel
Newby, Law.com
12-10-08 --
In a Fourth Amendment case argued Tuesday at the Supreme Court, the
justices considered whether, during a traffic stop, a police officer
may conduct a pat-down search of a passenger if the officer believes
the passenger to be armed and dangerous, but does not have
reasonable grounds to believe he or she is engaging in criminal
activity. . . . During
the argument hour, several of the justices questioned the
breadth of the standard advocated by the government for determining
the reasonableness of pat-down searches, and the Court grappled with
the issue of when a seizure ends in the context of a vehicle stop. .
. . The respondent in the case, Lemon Montrea Johnson, was a
passenger in a car stopped in Arizona for an insurance infraction.
The officer, hoping to question Johnson about gang activity, asked
him to get out of the car and then patted him down. Johnson sought
to suppress the gun and marijuana that the officer found on him,
claiming a violation of his Fourth Amendment rights against
unreasonable searches and seizures.
Remedial Harassment by Lawsuit in the Supreme Court
Jay
Tamboli, Talk Radio News Service
12-10-08 --
What can high-level government officials do to avoid being
distracted from their work by lawsuits? That seemed to be the
question of the day at the U.S. Supreme Court, considering the case
of Ashcroft v. Iqbal. Javaid Iqbal sued then-Attorney General
Ashcroft, FBI Director Mueller, and several other government
officials after he was arrested on credit card fraud charges shortly
after 9/11. Iqbal claims that he was mistreated—held in a
maximum-security prison for nearly six months, where he was
subjected to invasive daily searches, beatings, extremes in
temperature, sleep disruption, and prohibitions on his religious
practices—all because he was an Arab Muslim. He alleges his
classification as a “high interest” detainee was racial and
religious profiling by the government, in violation of his rights. .
. . The trial has not even begun, though, since the Department of
Justice is claiming that pre-trial discovery, including possible
depositions with officials, would burden them and prevent them from
doing their jobs. They say that the lawsuit’s initial filings,
claiming Ashcroft and Mueller knew about and approved of the racial
and religious profiling, are not specific enough, so the lawsuit
should be dismissed. Of course Iqbal’s lawyers argue that they do
have enough information to support their allegations, but they need
discovery to fully develop their case. . . . All members of the
Supreme Court today seemed perplexed by the situation. Federal Rules
of Civil Procedure allow a case to be dismissed if it is purely
frivolous, but generally not until after discovery has taken place.
Further, the Rules allow judges to discipline attorneys who file
frivolous lawsuits, but only after the lawsuits have been disposed
of.
9th Circuit Friendless at Supreme Court Antitrust Argument
Tony
Mauro, Legal Times
12-9-08 --
When the Supreme Court agrees to consider a case from the 9th U.S.
Circuit Court of Appeals or any other court, at least one party is
expected to rise in defense of the decision below.
If it's the 9th Circuit, the Court usually strikes down the
decision anyway, but it has at least heard one voice in
support of what the 9th Circuit had to say. . . . But not Monday.
The Court heard arguments in an antitrust case,
Pacific Bell Telephone Co. v. LinkLine Communications (pdf),
and among the four lawyers who argued, not one supported the 9th
Circuit decision that Pacific Bell was asking the Court to overturn.
As one veteran lawyer in the audience said afterward, "I've been to
many arguments in my life, and this is the first time I have heard
no one speak in support of affirmance of the judgment below." . . .
Chief Justice John Roberts Jr. remarked on the odd circumstance at
the beginning of the hour, telling Pacific Bell's lawyer Aaron
Panner, "You are probably feeling pretty good about your chances
since your opponent has given up, right?" Panner is a partner at
Kellogg, Huber, Hansen, Todd, Evans & Figel. But at the
time Roberts made the comment, the fourth lawyer scheduled to argue
-- Richard Brunell of the
American Antitrust Institute -- was expected to support
the 9th Circuit at least as a fallback position. As it turned out,
even that support did not materialize.
Supreme Court can't shake faithful skeptics on Obama citizenship
By Wes
Allison, Times Staff Writer
12-9-08 --
Roger Bredow insists he's no conspiracy theorist, no "tinfoil hat
guy." Indeed, when he arrived outside the U.S. Supreme Court for a
vigil Friday morning, he sported a red, white and blue Uncle Sam
hat. . . . Inside, the nine justices were considering whether to
take on a question that is roiling some conservative circles, and
that has grown into something of an Internet cottage industry for
folks like Bredow: . . . Is Barack Hussein Obama, by virtue of his
birth, really eligible to be president of the United States? . . .
Next week, the Electoral College will ratify the results of the
November election. Imagine the consequences, Bredow says, if Obama
is not supposed to be there. Any law Obama signed, any treaty, any
action whatsoever he took while pretending to be president —
invalid. . . . "I believe this decision is potentially bigger than
Roe. It's the only time in history that a candidate has been elected
and then the court has had to deal with this issue," Bredow said. .
. . "It just infuriates me that a president is going to be put in
office with so little transparency."
Court won't review Obama's eligibility to serve
Associated Press
12-8-08 --
The Supreme Court has turned down an emergency appeal from a
New Jersey man who says
President-elect Barack Obama is ineligible to be president because
he was a British subject at birth. . . . The court did not comment
on its order Monday rejecting the call by Leo Donofrio of East
Brunswick, N.J., to intervene in the presidential election. Donofrio
says that since Obama had dual nationality at birth — his mother was
American and his Kenyan father at the time was a British subject —
he cannot possibly be a "natural born citizen," one of the
requirements the Constitution lists for eligibility to be president.
. . . Donofrio also contends that two other candidates, Republican
John McCain and Socialist Workers candidate Roger Calero, also are
not natural-born citizens and thus ineligible to be president. . . .
At least one other appeal over Obama's citizenship remains at the
court. Philip J. Berg of Lafayette Hill, Pa., argues that Obama was
born in Kenya, not Hawaii as Obama says and the Hawaii secretary of
state has confirmed. Berg says Obama also may be a citizen of
Indonesia, where he lived as a boy. Federal courts in Pennsylvania
have dismissed Berg's lawsuit.
You can access the December 8th Order List of the U.S. Supreme
Court at
this link.
Donofrio Application Denied - Wrotnowski Application
Still Pending
by
naturalborncitizen, Leo Donfrio
12-8-08 --
The main stream media should stop saying SCOTUS refused to hear the
case. It was distributed for conference on Nov. 19. They had
the issue before them for for sixteen days. Yes, they didn't take it
to the next level of full briefs and oral argument. But they
certainly heard the case and read the issues. The media is failing
to acknowledge that. The case and issues were considered.
Getting the case to the full Court for such consideration was my
goal. I trust the Supreme Court had good reason to deny the
application. Despite many attempts to stop their full
review, my case was placed on their desks and into their minds.
Please remember that. It's important for history to record
that.] . . . My application was denied. The Honorable Court
chose not to state why. . . . Wrotnowksi v. Connecticut Secretary
of State is still pending as an emergency application
resubmitted to the Honorable Associate Justice Antonin Scalia as of
last Tuesday. I worked extensively on that application and it
includes a more solid brief and a less treacherous lower Court
procedural history. . . . After six days, it’s interesting that
Scalia neither denied it nor referred it to the full Court. . . .
My case may have suffered from the NJ Appellate Division Judge
having incorrectly characterized my original suit as a “motion for
leave to appeal” rather than the “direct appeal” that it actually
was. On Nov. 21 I filed official Judicial misconduct
charges with the NJ Supreme Court Advisory Committee on Judicial
Conduct, and I updated SCOTUS about that by a letter which is
part of SCOTUS Docket as of Nov. 22. The NJ Appellate Division
official case file is fraudulent.
[MORE]
Court to weigh question about Obama citizenship
Unlikely decision could deny him presidency
Tom
Ramstack Washington Times
12-5-08 --
The Supreme Court plans to meet Friday to decide whether to hear a
case that could determine whether President-elect Barack Obama ever
becomes the nation's president. . . . Justice Clarence Thomas picked
up the petition to hear New Jersey attorney Leo Donofrio's lawsuit
after it was denied by Justice David H. Souter. Justice Thomas
referred it to the full court, which decided to distribute the case
for the judges' conference. . . . The decision to put the case on
Friday's docket resulted from more than a dozen lawsuits challenging
Mr. Obama's right to be president based on his citizenship at birth.
The issue preoccupied many conservative bloggers in the weeks before
the Nov. 4 election. . . . Some legal analysts say the lawsuits have
little chance of success. The Supreme Court rarely grants the kind
of court orders - or stays - sought by Mr. Donofrio. . . . "Nothing
in what we've seen from the court so far suggests any likelihood the
court is actually going to take the cases," said Eugene Volokh,
constitutional law professor at the University of
California at Los Angeles School of Law. . . . Nevertheless, for the lawsuit even
to make it to the docket raises the possibility of an unprecedented
case going before the Supreme Court . At least four of the court's
nine judges must approve before the case is heard.
Supreme Court to Consider Pensions and Pregnancy Leave
Marcia
Coyle, The National Law Journal
In the 30th anniversary year of the
federal Pregnancy Discrimination Act, the "second generation of
pregnancy discrimination" has arrived at the U.S. Supreme Court, say
some civil rights and women's rights lawyers, in a case that could
affect thousands of female workers, retired or about to retire, as
well as company pension plans. . . . The Pregnancy Discrimination
Act treats discrimination on the basis of pregnancy, childbirth or
related medical conditions as unlawful sex discrimination under
Title VII of the Civil Rights Act of 1964, the nation's major job
bias law. . . . The act has helped "to change the nation's mindset
about childbearing and working moms, and it continues to provide
significant civil rights protections for women," said Linda D.
Hallman, executive director of the
American Association of University Women, adding it also
has helped "to pave the way for a generation of working women and
strengthened the American work force in the process."
High Court Hears $79.5 Million Philip Morris Punitives Case for
Third Time
Mark
Sherman, The Associated Press
12-4-08 --
A cigarette maker and a smoker's widow squared off for the third
time at the Supreme Court on Wednesday over a $79.5 million punitive
damages award, but the real battle was between the justices and
their counterparts on Oregon's high court. . . . Twice
before, the Supreme Court has struck down the judgment against
Altria Group Inc.'s Philip Morris USA and ordered the Oregon court
to take another look at the case. Each time, the Oregon high court
has upheld the award to Mayola Williams, the widow of a longtime
smoker of Philip Morris' Marlboro brand. . . . In its latest appeal,
Philip Morris contended the Oregon judges were essentially thumbing
their noses at the Supreme Court. "We're here today because the
Oregon court failed to follow this Court's decision," Philip Morris'
lawyer, Stephen Shapiro, told the justices.
Parents’ Suit Offers Test of Title IX for Justices
By Adam
Liptak
12-2-08 --
The parents of a girl who said she had been molested on a school bus
seemed poised to win what may turn out to be an empty victory,
judging from the justices’ questions on Tuesday at the Supreme
Court. . . . The case was filed in 2002 after the girl, a
kindergarten student in Hyannis, Mass., told her parents she was
being sexually harassed by an 8-year-old boy every time she wore a
dress or skirt to school. Two or three times a week, the girl said,
the boy would force her to lift her skirt and pull down her
underwear, provoking mocking laughter from the other students on the
bus. . . . Her parents were dissatisfied with the school’s response,
which included an inconclusive investigation and the offer to
transfer their daughter to another bus. The school took no action
against the boy, who denied the girl’s account, and it refused to
place an adult monitor on the bus. . . . The parents sued under two
federal statutes, and the argument on Tuesday concerned how those
statutes interact.
U.S. Supreme Court Sidesteps Judicial Bias Case
The
Associated Press
12-2-08 --
The U.S. Supreme Court is refusing to enter a politically charged
case from West Virginia, a major coal producing state, that involves
a large punitive damages award and allegations of bias by a state
judge. . . . In an order Monday, the justices turned down
coal giant Massey Energy Co.'s challenge to a $260 million jury
verdict, which includes $100 million in punitive damages, in
a dispute with Wheeling-Pittsburgh Steel Co. . . . The West Virginia
Supreme Court already refused unanimously to review the award.
November 2008
Plame Seeking Supreme Court Review of Suit Against Cheney, Libby
Mike
Scarcella, Legal Times
11-19-08 --
Lawyers for former CIA operative Valerie Plame Wilson plan to petition the Supreme Court to
review a lawsuit against Vice President Dick Cheney and I. Lewis
"Scooter" Libby, among others, after a federal appeals court this
week rejected a rehearing en banc. . . . Plame and her husband,
former ambassador Joseph Wilson, alleged Cheney and other Bush
administration officials violated constitutional rights in revealing
her identity as an undercover
CIA officer. In a 2-1 vote, the U.S. Court of Appeals for the D.C.
Circuit in August
affirmed a district judge's order dismissing the lawsuit
saying, among other things, the complaint failed to establish a
constitutional issue. Chief Judge David Sentelle was sitting with
Judges Karen LeCraft Henderson and Judith Rogers, who dissented.
News Analysis: Supremes to Decide If Justice For Sale in West
Virginia
By Tony Rutherford, Huntingtonnews.net Reporter
11-18-08 --
Enormous campaign contributions on
behalf of a specific candidate allows that person to purchase
unmitigated amounts of advertising, whether through the broadcast
media or others (print, on line) and literature. When Massey Coal
lost a $50 million dollar decision in Boone County, its
CEO Don Blankenship vowed to
appeal to West Virginia’s ONLY appellate court --- The West Virginia
Supreme Court of Appeals. . . . Fortunately for the U.S. Supreme
Court petitioners, they selected a law firm with a much experienced
attorney in presenting and arguing cases before the nine justices
--- Theodore Olson, former Solicitor General of the U.S. under the
Bush Administration AND the attorney who successfully represented George W. Bush and Dick
Cheney in Bush v. Gore, which resolved the election in the
now President’s favor.
Supreme Court Takes Up Judicial Ethics Case
Tony
Mauro, Legal Times
11-17-08 --
The Supreme Court on Friday agreed to take up a West Virginia case
that could trigger the Court's first major review of the impact of
increasingly costly judicial elections on the appearance and reality
of justice at the state level. . . . After several weeks of
unexplained delay in acting on the case, the Court announced it was
granting review in Caperton v. Massey, which asks when a campaign
donation by a party in a case is large enough that the judge
receiving the donation must recuse to avoid violating due process
rights. Legal Times
previewed the case in August. The American Bar
Association and other civic and business groups filed briefs at the
petition stage -- a rarity -- to underline the urgency and
importance of the issue in light of increasingly political,
money-drenched state judicial elections.
Supreme Court Justices Hear Arguments in Religious Monument Case
Tony
Mauro, Legal Times
11-13-08 --
The Supreme Court on Wednesday seemed likely to give its blessing to
a Utah town that rejected a small religious sect's request to
install a monument on public park land, even though the town
accepted a Ten Commandments display in the same park 32 years
earlier. . . . Most justices during oral argument Wednesday seemed
to oppose the idea that by accepting one, Pleasant Grove City had to
accept the other because of the First Amendment's bar against
content-based speech discrimination by the government. . . . "You
have a Statue of Liberty; do we have to have a statue of despotism?"
Chief Justice John Roberts Jr. asked. "Or do we have to put any
president who wants to be on Mount Rushmore?" . . . In the same
vein, Justice Antonin Scalia wondered aloud if a city that allows
any kind of memorial on public land would have to also permit "a
monument to chocolate chip cookies" if a resident proposed it.
Supreme Court Rules for Navy in Use of Sonar
The
Associated Press
11-12-08 --
The U.S. Supreme Court is lifting restrictions on the Navy's use of
sonar in training exercises in the Pacific Ocean, a defeat for
environmental groups who say the sonar can harm whales. . . . The
court, in its first decision of the term, voted 5-4 that the Navy
needs to conduct realistic training exercises to respond to
potential threats by enemy submarines. . . . Environmental groups
persuaded lower federal courts in
California to impose
restrictions on sonar use in submarine-hunting exercises to protect
whales and other marine mammals. . . . The Bush administration
argued that there is little evidence of harm to marine life in more
than 40 years of exercises in the Pacific.
Supreme Court Argument Report: Lawyers as 'Repeat Players'
Laurel
Newby, Law.com
11-12-08 --
During argument at the Supreme Court on Monday in a confrontation
clause case, the justices and attorneys engaged in some spirited
exchanges concerning whether defense lawyers -- especially those
"repeat attorneys" who appear often before the same judges and
prosecutors -- would be likely to take undue advantage of a rule
requiring forensic technicians to testify when lab reports are
admitted as evidence in drug cases. . . . The case, Melendez-Diaz v.
Massachusetts, asks whether a forensic report identifying a
substance as cocaine constitutes "testimonial" evidence under the
confrontation clause of the Sixth Amendment. Under the Court's 2004
Crawford v. Washington case and subsequent
confrontation clause rulings, if the laboratory report is deemed
"testimonial," then the analyst who performed the test must testify
at trial and be subject to cross-examination.
Supreme Court Posts Video in Victim Impact Case
Tony
Mauro, Legal Times
11-11-08 --
In 1991, the Supreme Court gave its blessing to the growing victims'
rights movement by allowing prosecutors to introduce victim impact
testimony during the penalty phase in murder cases. In
Payne v. Tennessee, the Court said such testimony
giving a "quick glimpse" into the life and impact of the murder
victim was permissible. . . . Since Payne, victim impact statements
have expanded well beyond a "quick glimpse" into extended testimony
from friends and neighbors, as well as video and photo
presentations. . . . On Monday the Supreme Court denied review in
two California cases in which defendants claimed that multimedia
victim impact presentations prejudiced jurors against them. The
California Supreme Court had ruled the presentations admissible.
Supreme Court Argument Report: Jack the Ripper in His Armchair
Laurel
Newby, Law.com
11-11-08 --
The Supreme Court on Monday considered a case involving whether a
defendant's failure to report for confinement after conviction
constitutes a "violent crime" under the
Armed Career Criminal Act. The justices weighed
arguments concerning whether failure to report is an aggressive
or a passive act, and contemplated hypotheticals involving a
defendant shirking jail time in order to relax in his armchair or to
create holiday memories with his family. . . . Deondery Chambers,
who pleaded guilty to being a felon in possession of a firearm, had
prior convictions for drug distribution and for robbery and battery.
He challenged whether his conviction under an Illinois escape law
for failure to report for confinement was a violent felony that
supplied the third predicate conviction for enhancement of his
sentence under the ACCA. . . .Attorney Robert N. Hochman,
representing Chambers, told the justices that the government had
made a "critical error" in "equating breakout, prison escape, with
failure to report. They are entirely different." . . . Failure to
report "presents neither a serious potential risk of injury to
others nor involves violent and aggressive conduct," Hochman said.
Supreme Court Justices Debate the 'F-Bomb'
Tony
Mauro, Legal Times
11-5-08 --
The Supreme Court appeared far from a consensus Tuesday on whether
the Federal Communication Commission's crackdown on broadcasters who
allow "fleeting expletives" to reach the airwaves should continue. .
. . Following an
hourlong argument in
FCC v. Fox Television Stations in which no one
actually uttered the expletives at issue, it seemed possible that
the dispute will be sent back to the 2nd U.S. Circuit Court of
Appeals for further study on administrative law or constitutional
issues, or both. . . . It was an unusual hour, as justices debated
the relative impact of barnyard epithets, and Solicitor General
Gregory Garre warned the Court not to rule in a way that could lead
to "Big Bird dropping the f-bomb on Sesame Street."
High Court Appears Torn Over Drug Labeling Case
Tony
Mauro, Legal Times
11-4-08 --
The Supreme Court appeared torn Monday over whether a federal law on
drug labeling should pre-empt a jury's $7 million verdict against
Wyeth in the case of a Vermont woman who lost her arm to gangrene
after being given a Wyeth drug for a migraine headache. . . . The
case, Wyeth v. Levine, has been billed as
a major milestone in the effort by the pharmaceutical and other
industries to free themselves of unpredictable state court tort
litigation by embracing instead a single federal regulatory
regime -- in short, federal pre-emption. . . . But based on
the hourlong argument Monday (pdf), the case could be
decided narrowly, giving little guidance about broader pre-emption
issues beyond the area of drug labeling. . . . In 2000, Vermont
guitarist Diana Levine went to a clinic seeking relief for her
migraine. She was injected with the Wyeth drug Phenergan by means of
one intravenous method that was discouraged but not forbidden by the
labeling, which had been approved by the Food and Drug
Administration.
Supreme Court Argument Report: Justices in 'Confessional
Mode'
Laurel
Newby, Law.com
11-4-08 --
The Supreme Court justices on Monday heard argument in a First
Amendment case involving the authority of local governments to make
payroll deductions for political activities. Discussion of whether
an Idaho statute proscribing the practice should be subject to
heightened constitutional scrutiny led two of the justices to seek
clarification regarding some tenets of First Amendment
jurisprudence. . . . For Justice Stephen Breyer, it was the concept
of content-based limitations on speech. "I don't understand what the
[term] 'content-based' means, and I know it's all over the law, but
I've never understood it and maybe since you're relying on it ...
you can explain it," Breyer told Jeremiah A. Collins, who argued on
behalf of a group of labor unions who challenged the statute.
Justices Might Take DNA Evidence Case
Convict Seeks New Tests That He Thinks Could Exonerate Him in
Homicide
By Jerry
Markon, Washington Post Staff Writer
11-2-08 --
William Osborne was accused of raping a prostitute at gunpoint,
beating her with an ax handle and leaving her for dead in the snow.
His lawyer declined a DNA test of the evidence, thinking that it would confirm his guilt. . . .
Osborne was convicted, spent more than a decade in prison and gave a
detailed confession to a parole board. But after recanting that
confession, the Alaska man won
a federal lawsuit seeking new DNA tests he now says can clear him, a judgment that was affirmed by the
U.S. Court of Appeals for the 9th Circuit. It is the first time an
appellate court has ruled that an inmate has a federal
constitutional right to such testing. . . . Now, the Supreme Court
is being asked to evaluate that ruling in a case that pits the
administration of Alaska Gov. Sarah Palin, the Republican vice
presidential nominee, against a Republican-appointed judge who
accuses her state attorney general of being "obstinate" in blocking
Osborne from testing the evidence used to convict him. The high
court debated Alaska's request
to take the case in a private conference on Friday and could
announce its decision as early as tomorrow.
Must It Always Be About Sex?
By Adam
Liptak
11-2-08 --
The Supreme Court specializes in law, not lexicography. But it will
soon have to consider the meaning of that most versatile of
four-letter words. . . . The Oxford English Dictionary’s three core
entries on the word — noun, verb and interjection — are about six
times as long as this article. That doesn’t count about 30
derivations and compounds, all colorful and many recent. The nimble
word, the dictionary tells us, can help express that a person is
incompetent; that another is not be meddled with; that a situation
has been botched; that one does not have the slightest clue; and, in
a recent addition, that someone has enough money to be able to quit
an unpleasant job. . . . You know the word I mean. . . . A central
question in the case of Federal Communications Commission v. Fox
Television Stations, to be argued Tuesday, is whether every
permutation of the word evokes sex and thus runs afoul of indecency
regulations, which prohibit the broadcasting of material that
“depicts or describes sexual or excretory activities or organs.”
October 2008
How Green Is the High Court?
Five cases put environmental laws to the test
Marcia
Coyle, The National Law Journal
10-24-08 --
Is the U.S. Supreme Court hostile to environmental regulation? Does
it shy away from the tougher environmental questions of today? Or are its
decisions a "mixed bag," giving comfort and angst to
environmentalists and industry depending on the issue? . . . The
justices this term have taken five environmental cases for decision
thus far -- a significant number for a relatively small docket. With
the exception of
the already argued case involving Navy sonar and its
impact on whales and other marine mammals, this environmental
quintet is unlikely to arouse public passions. . . . But all five
cases raise bread-and-butter environmental issues, some with
potentially huge implications for the ability of environmentalists
and the government to enforce the nation's major environmental laws
and for the wherewithal of business and industry to survive and
prosper under those laws.
Supreme Court Takes On Identity Theft Case
Mark
Sherman, The Associated Press
10-21-08 --
The Supreme Court is taking a look at federal prosecutors' efforts
to pin identity theft charges on undocumented foreign workers who
have Social Security and identification numbers that belong to
others. . . . The government has used the charges -- with the
possibility of prison time -- to persuade people to plead guilty to
lesser immigration violations. In other cases, defendants have been
convicted of "aggravated identity theft," even without proof that
they knew their phony ID numbers belonged to real people. . . . The
issue has divided federal appeals courts around the country and the
justices said Monday they will resolve the issue after hearing
arguments next year. . . . The central question is whether the
defendant must know that the counterfeit identification belongs to
someone else. Federal prosecutors have increasingly been bringing
the more serious identity theft charges against undocumented
immigrants, including many who were arrested in raids on meatpacking
plants.
High Court Rejects GOP Bid in Ohio Voting Dispute
The
Associated Press
10-17-08 --
The Supreme Court sided Friday with Ohio's top elections official in
a dispute with the state Republican Party over voter registrations.
. . . The justices overruled a federal appeals court that had
ordered Ohio's top elections official to do more to help counties
verify voter eligibility. . . . Secretary of State Jennifer Brunner,
a Democrat, faced a deadline of Friday to set up a system to provide
local officials with names of newly registered voters whose driver's
license numbers or Social Security numbers on voter registration
forms don't match records in other government databases. . . . Ohio
Republicans contended the information for counties would help
prevent fraud. Brunner said the GOP is trying to disenfranchise
voters. . . . In a brief unsigned opinion, the justices said they
were not commenting on whether Ohio is complying with a provision of
the Help America Vote Act of 2002 that lays out requirements for
verifying voter eligibility. . . . Instead, they said they were
granting Brunner's request because it appears that the law does not
allow private entities, like the Ohio GOP, to file suit to enforce
the provision of the law at issue.
High Court Declines to Review FedEx Disability Discrimination Case
Marcia
Coyle, The National Law Journal
10-16-08 --
The U.S. Supreme Court has declined to review a punitive damages
award against Federal Express Corp. (FedEx), which had argued, in a
disability discrimination case, that adoption of a compliance policy
and an internal grievance policy for handling employee complaints
showed, as a matter of law, that it acted in good faith to comply
with the Americans with Disabilities Act (ADA). . . . The high court
turned away Federal Express' petition without comment, leaving in
place a jury award of $100,000 in punitive damages and $8,000 in
compensatory damages for the company's failure to reasonably
accommodate a profoundly deaf employee who worked as a package
handler at the company's Baltimore Ramp, which is located at the
Baltimore-Washington International Airport. Federal Express Corp.
v. Equal Employment
Opportunity Commission,
No. 07-1346.
Supreme Court Argument Report: Justices Review Jury
Instructions
Laurel
Newby, Law.com
10-16-08 --
The Supreme Court on Wednesday heard argument in two habeas
challenges involving state court jury instructions, both on appeal
from the 9th U.S. Circuit Court of Appeals. . . . Waddington v.
Sarausad concerns a Washington state court's jury
instructions in the case of a driver in a drive-by shooting at a
high school who was convicted of charges, including second-degree
murder, on the theory of accomplice liability. . . . There was
disagreement at trial about whether Cesar Sarausad knew that his
co-defendant had a gun and whether Sarausad's intent in driving to
the school was to participate in a fight or a shooting. The
prosecutor told the jury that Washington state law dictated that "if
you're in for a dime, you're in for a dollar" -- that if Sarausad
knew that his co-defendant was going to commit any crime, he could
be held accountable for the actual crime committed.
Supreme Court Argument Report: Voting, Consenting and
Sentencing
Laurel
Newby, Law.com
10-15-08 --
The Supreme Court on Tuesday considered a case involving the effect
of districting decisions on dilution of minority group votes, and a
Fourth Amendment suit that asks whether consenting to allow a
confidential police informant to enter a home is the same as
consenting to entry by police officers. A third case revisited the
Court's Sixth Amendment jurisprudence in the context of a judge's
fact-finding to determine whether a defendant should serve
concurrent or consecutive sentences. . . . The voting rights case,
Bartlett v. Strickland, concerns claims of vote dilution under
Section 2 of the
Voting Rights Act, which protects minority voters
who, in the words of the statute, "have less opportunity than other
members of the electorate to participate in the political process
and to elect representatives of their choice." . . . The high
court's 1986 decision in
Thornburg v. Gingles set out the test for a vote
dilution claim, under which a minority group must be "sufficiently
large and geographically compact to constitute a majority in a
single-member district." The North Carolina Supreme Court ruled, in
the context of a state House of Representatives redistricting, that
this "majority" threshold is only met when a minority group has a
mathematical, 50 percent majority.
Court considers case on judicial ethics
By Mark
Sherman, Associated Press Writer
10-10-08 --
Supreme Court justices regularly confront cases involving companies
they own shares in or that employ a family member. The decision is
easy - the justices have a conflict of interest that forces them to
play no role in the case. . . . But what happens when the issue is
less clear and a judge has the appearance of a conflict, but no
personal stake in the outcome of a dispute? The court is considering
a case that asks whether the Constitution requires judges to step
aside in that instance. . . . The justices met in private Friday to
discuss a lawsuit over a coal contract in West Virginia in which a
state Supreme Court justice rejected calls to step aside because the
leader of one company in the case spent more than $3 million to help
him get elected.
Supreme Court Hears Environmental, Employment Discrimination Cases
Tony
Mauro, Legal Times
10-9-08
-- The Supreme Court on Wednesday heard arguments in what may be its
top environmental and employment discrimination cases of the term,
and from the tenor of the debates, the verdict seems to be: whales,
dolphins and employers will lose. . . . In the environmental case,
Winter v. Natural Resources Defense Council, most justices
seemed to accept the Bush administration's argument that the needs
of the military should trump environmental concerns about damage to
marine mammals when it comes to Navy sonar training off the coast of
California. . . . And in the employment case, Crawford v. Nashville
and Davidson County, lawyers for a Nashville, Tenn., school employee and for
the Bush administration appeared to persuade the Court that Title
VII of the Civil Rights Act protects employees from retaliation even when
they complain about sexual harassment during an internal
investigation -- before any formal charges are made.
Court sympathetic to worker's retaliation claims
By Mark
Sherman, Associated Press Writer
10-8-08
-- Supreme Court justices indicated Wednesday they would side with a
longtime government worker who claims she was fired in retaliation
after she cooperated with a sexual harassment investigation. . . .
The court wrestled with whether the anti-retaliation provisions of a
landmark civil rights law apply to people who haven't themselves
complained about workplace discrimination. The only doubt at the end
of arguments Wednesday was how broadly the court would rule for the
employee. . . . Vicky Crawford was fired in 2003 after more than 30
years as an employee of the school system for Nashville, Tenn., and Davidson County.
Supreme Court Argument Report: The Fourth Amendment, Thomas
Jefferson and Barney Fife
Laurel
Newby, Law.com
10-8-08 --
On Tuesday, the Supreme Court heard argument in two Fourth Amendment
cases, one involving the application of the exclusionary rule to
cases in which an arrest and search are based on police error, and
the other concerning justification for the exception to the warrant
requirement in the case of a vehicular search incident to arrest. .
. . In Herring v. United States, Bennie Dean Herring challenged a
search incident to an arrest that was made based on the erroneous
information that he had a warrant on file. At issue was whether the
evidence found during that search should be excluded because the
warrantless arrest violated the petitioner's Fourth Amendment
rights. . . . The arguing attorneys clashed over how one of the
central objectives of the exclusionary rule, the deterrence of
police misconduct, should affect the outcome of the case.
Supreme Court Opens Term With Tobacco Case
In
an unusually sharp exchange, Justice Samuel Alito Jr. criticized the
lawyer representing the federal government
Tony
Mauro, Legal Times
10-7-08 --
On the opening day of its fall term, the Supreme Court jumped right
into a controversial case in which tobacco companies are seeking to
block litigation in state courts over health claims made about
"light" cigarettes. By the end of Monday's hourlong arguments in
Altria Group v. Good, most justices appeared to agree with Altria --
the parent company of Philip Morris -- that the federal cigarette
labeling law pre-empts state tort suits like the one before the
Court. In August 2007, the 1st U.S. Circuit Court of Appeals had
ruled that the suit, in which a group of Maine smokers allege that
claims of reduced tar and nicotine were false, was not pre-empted. .
. . The justices, who had not been together in public since June,
seemed in good health and spirits, jousting with lawyers and each
other during oral arguments. . . . Representing Altria was
former Solicitor General Theodore Olson, who was arguing his 50th
case before the Court. Olson appeared to convince the Court
that the federal labeling law expressly precludes state suits over
"smoking and health" issues. If states are allowed to impose
different restrictions on cigarette advertising through lawsuits or
other means, Olson said, "national advertising becomes impossible."
. . . David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel,
who represented the smokers, struggled to persuade the Court that
the state suits are about consumer fraud and deception and thus are
not pre-empted.
Supreme Court Argument Report:
Pre-emption, Arbitration and Litigation
Laurel
Newby, Law.com
10-7-08 --
The Supreme Court had a busy opening day on Monday, kicking off
its October 2008 term with three cases instead of two --
a schedule that will continue on most argument days through
November. After hearing argument in
one of this term's highly anticipated pre-emption cases,
Altria Group v. Good, the justices considered a First Amendment case
involving union fees for litigation expenses. The third case
concerned federal jurisdiction over petitions to compel arbitration.
. . . In Locke v. Karass, nonmembers of a state employees union in
Maine sued over service fees paid to the national union to support
litigation that did not involve or benefit the local union. The
nonmembers, who are represented by the union in collective
bargaining negotiations, argued that the fees for extra-unit
litigation amounted to compelled speech in violation of their First
Amendment rights.
For the Supreme Court, a Term of Change Ahead
Tony
Mauro, Legal Times
10-6-08 --
The Supreme Court begins its fall term today on the verge of
significant change -- in its caseload and among the lawyers who
argue before it, and possibly even in its membership. . . . By the
end of the term in June, the Court
could have decided more cases than it has in a decade.
More of those cases than ever will be handled by lawyers or
professors affiliated with
law school clinics -- unheard of just four years ago. And
a new wave of lawyers and law firms will be joining Supreme Court
veterans in jockeying for the increased caseload. . . . Finally,
while predicting high court retirements is one of Washington's
trickiest parlor games, three members of the Court -- Justices John
Paul Stevens, David Souter and Ruth Bader Ginsburg -- are seen as
the most likely candidates to step down. At a William & Mary
Marshall-Wythe School of Law conference on the Court Sept. 26,
former acting Solicitor General Walter Dellinger III flat-out
predicted all three will go if Sen. Barack Obama is elected, and "no
one will voluntarily step down" if Sen. John McCain is elected. . .
. "The Court is at a tipping point," says Thomas Goldstein, head of
litigation at Akin Gump Strauss Hauer & Feld, who launched the first
Supreme Court legal clinic at Stanford Law School in 2004. . . . The
Court's docket for the new term is dominated by business cases and
more environmental disputes than usual, along with
a quirky case that will have obscenities ringing throughout its
majestic courtroom. . . . On Nov. 4, when the rest of the
nation will be focused on the presidential election, the Court will
hear arguments in FCC v. Fox Television Stations over the fleeting
use of the "s-word" and "f-word" in television broadcasts by the
likes of Nicole Richie, Cher, and Bono. Carter Phillips of Sidley
Austin, representing Fox, says he won't use euphemisms for those
words at argument.
High Court to Hear Arguments on ERISA Beneficiary Designation
Thompson & Knight partner, making his first appearance before the
Supreme Court, calls 'Kennedy' a test case
Mary
Alice Robbins, Texas Lawyer
10-6-08 --
The U.S. Supreme Court will hear arguments Tuesday regarding whether
a
qualified domestic relations order (QDRO) under the
Employee Retirement Income Security Act trumps a woman's
voluntary waiver of her ex-husband's pension benefits, an issue that
has divided federal appeals courts and left divorce lawyers unsure
how to advise clients. . . . South Texas College of Law professor
James Paulsen, who teaches courses on family law, marital property
and federal courts, says Kennedy v. Plan Administrator for DuPont
Savings and Investment Plan, et al. should be a "cautionary tale"
for lawyers when advising their clients about what actions to take
after a divorce. . . . In 2007, the 5th U.S. Circuit Court of
Appeals held in Kennedy that ERISA's QDRO provision, 29 U.S.C.
§1056(d)(B)(i), provides the only valid way a divorcing spouse can
waive her right to receive her ex-husband's pension benefits under
ERISA. The pension plan par-ticipant in Kennedy did not change his
ex-wife's beneficiary designation by giving the plan administrator a
QDRO, an order a court or government agency issues to transfer
benefits. The 5th Circuit found that the divorce decree did not
waive the ex-wife's rights to the benefits.
High Court's Busy New Term Just Got Busier
Justices add key criminal cases and critical Superfund case
Marcia
Coyle, The National Law Journal
10-6-08 --
From speedy trial rights to plea agreements breached by prosecutors
to counsel for indigent defendants, the U.S. Supreme Court, in
its first orders list of the new term, upped the stakes
by adding seven new cases to an already busy criminal docket. . . .
The seven cases granted review were among 10 culled from the Court's
summer list of more than 2,000 petitions. In addition to the
criminal cases, the justices also granted review in a Superfund
cleanup challenge -- the fifth environmental case on the argument
docket in a now potentially huge term for environmental law. . . .
In the Superfund challenge, two high court veterans --
Kathleen M. Sullivan, head of Quinn Emanuel Urquhart
Oliver & Hedges' national appellate practice, and
Maureen E. Mahoney, head of Latham & Watkins' appellate
and constitutional practice -- face the federal government on two
issues: when so-called arranger liability can be imposed, and
whether and when liability may be apportioned among multiple parties
potentially liable for a cleanup.
Supremes Deny Rehearing in Child Rape Case
Posted
by Dan Slater, WSJ Law Blog
10-1-08 --
This just in, from the hardworking Ben Winograd over at
SCOTUS blog: The High Court has denied rehearing in
Kennedy v. Louisiana, the case in which it struck
down the death penalty for the crime of child rape in Louisiana. But
the Court modified both the majority and dissenting opinions. . . .
The result,
writes Lyle Denniston, was that the Court left intact its
decision, not only that a death sentence could not be imposed for
that particular crime, but also that death could not be imposed for
any crime in which the victim is not killed. . . . For past LB
coverage of the Kennedy case, click
here,
here and
here. Thanks to SCOTUS blog,
here’s the modified opinion and
here’s Justice Scalia’s statement denying rehearing.
Justice Scalia, who joined Justice Alito’s dissent in Kennedy,
writes:
I am voting against the petition for
rehearing because the views of the American people on the death
penalty for child rape were, to tell the truth, irrelevant to the
majority’s decision in this case. The majority opinion, after an
unpersuasive attempt to show that a consensus against the penalty
existed, in the end came down to this: “[T]he Constitution
contemplates that in the end our own judgment will be brought to
bear on the question of the acceptability of the death penalty under
the Eighth Amendment.” . .. Of course the Constitution contemplates
no such thing; the proposed Eighth Amendment would have been laughed
to scorn if it had read “no criminal penalty shall be imposed which
the Supreme Court deems unacceptable.” But that is what the majority
opinion said, and there is no reason to believe that absence of a
national consensus would provoke second thoughts.
September 2008
New U.S. Supreme Court term begins today
By Chris
Rizo, Legal Newsline
The U.S. Supreme Court reconvenes
this week for a term that will be conducted under the backdrop of
November's presidential election. . . . Among cases to be heard by
the high court is whether pharmaceutical companies may be sued for
patient injuries, if the Federal Communications Commission may
restrict foul language on broadcast television, if the Navy can be
barred from using sonar off the California coast and whether local
officials can be sued for violations that took place on their watch.
. . . Today, the court's nine justices will meet to consider a bevy
of petitions for review that were submitted over the court's summer
break, including a petition to hear an appeal of a lower court's
ruling that Baltimore (Md.) County violated the federal Natural Gas
Act by banning the construction of liquefied natural gas terminals
in coastal areas. . . . The court will begin to hear oral arguments
Oct. 6.
Davis case decision expected by Oct. 6
Execution stayed: ‘This is the kind of case that has the [Supreme
Court] on edge,’ said one death penalty expert.
By Bill
Rankin, The Atlanta Journal-Constitution
9-29-08 --
When the U.S. Supreme Court meets today to decide Troy Anthony
Davis’ fate, its nine justices face a fairly straightforward
question: Is there sufficient doubt about Davis’ guilt to warrant
further scrutiny of his case? . . . Davis needs four justices to
vote “yes.” Otherwise, his execution, halted by the high court less
than two hours before it was to be carried out Tuesday evening, will
be rescheduled. The court is expected to announce its decision Oct.
6. . . . The high court’s granting the stay at such a late hour,
while not unprecedented, indicates the case has the justices’
interest, court watchers said. . . . “The court can grant a stay and
then refuse to hear a case, but they don’t issue the stay lightly,”
said Thomas Goldstein, a Washington lawyer who specializes in
arguing cases before the high court. “They are thinking about it
hard.”
Pre-emption Looms Large in Supreme Court's Upcoming Business
Cases
Four environmental cases are also on docket, plus key job bias
issues
Marcia
Coyle, The National Law Journal
9-29-08 --
The Roberts Court's
affinity for issues close to the heart of the nation's business
community will continue into the October 2008 U.S. Supreme
Court term as the justices take on major questions concerning
federal pre-emption of state tort suits, environmental regulation,
workplace discrimination, arbitration, pensions and antitrust. . . .
The Court has agreed to decide 15 business-related cases thus far,
noted Mark I. Levy, chairman of the Supreme Court and appellate
advocacy practice in the Washington office of Atlanta's
Kilpatrick Stockton. "That's a pretty impressive number,
about 30 to 40 percent of the docket, and a number in line with what
the Court had last term and where it was 10 years ago," he said.
"That is a trend that is continuing." . . . The argument docket,
which is likely to increase in number after the justices' summer
conference today, is also notable for the type of business cases not
there yet, but which have been something of a staple in recent
terms: patent, securities and tax. And what was missing last term
has returned: environmental cases -- significantly, four very
different ones -- and an antitrust challenge.
McCain, Obama Criticism of High Court Child Rape Case Cited in
Rehearing Request
Tony
Mauro, Legal Times
9-25-08 --
In an unusual move, the negative reactions of presidential
candidates John McCain and Barack Obama to a recent Supreme Court
decision have been placed before the justices to support a request
that the Court reconsider its ruling. The state of Louisiana
included the candidates' statements in its latest filing seeking
rehearing of
Kennedy v. Louisiana, in which
the justices said it is unconstitutional to execute those
convicted of child rape when the victim survives. . . . Soon
after that June 25 decision was handed down, a military law blogger
noted that
the justices and all the parties neglected to mention
that Congress had recently passed legislation that calls for the
death penalty in such cases under the Uniform Code of Military
Justice. Louisiana, arguing that the omission skewed the Court's
assessment of the national consensus on the issue, asked the Court
to take the almost unheard-of step of rehearing the case to take the
new information into account.
Click for U.S. Supreme Court in
History & Today
by: Nancy Salvato
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