| 10:36 AM | Heather
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Today's News |
The L.A. Times has these Letters to the Editor on Jose Padilla, respondent in Rumsfeld v. Padilla, No. 03-1027.
Shannon Duffy of The Legal Intelligencer has this article on LaPage’s Inc. v. 3M Co., a case in which the Solicitor General’s Office filed a brief suggesting that the Court deny cert.
The Fort Wayne Journal Gazette has this editorial piece discussing the Court’s opinion, issued Tuesday, in Yarborough v. Alvarado, No. 02-1684. |
| 12:19 PM | Tom
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Very Significant SCOTUSblog Development |
We're pleased to announce the most significant development on SCOTUSblog since the blog was created. We are now joined by Lyle Denniston, the Dean of Supreme Court reporters and a widely recognized expert and teacher on the Court, who will be covering the Court for us. It's an extraordinary development for us. To turn the tables, we had a brief email interview with Lyle that is reproduced below.
Welcome to SCOTUSblog. We're ecstatic to have you.
Most of our readers know your reporting but may not know the depth and breadth of your experience. Can you provide that background.
Legal reporting has been, in fact, my professional life for half a century, and more -- beginning with a daily courthouse "beat" for a Nebraska newspaper in my late teens. I began covering the Supreme Court in 1958, for The Wall Street Journal. My coverage has continued, except for a two-year stint when I was drafted into being an editor during the Watergate episode; I was then at The Washington Star. Since my Star days, I have watched the Court for The Baltimore Sun and The Boston Globe. It pleases me to be able to say that I have covered one out of every four Justices ever to sit on the Court. I also do many television appearances to discuss the law, and am currently appearing in a series of cable TV broadcasts sponsored by the Massachusetts School of Law at Andover. I also write extensively in other media about the law, and have taught the law or constitutional history for most of the past 30 years. My book, The Reporter and The Law: Techniques of Covering the Courts, is still a standard in newspaper offices and in academic journalism.
What kinds of pieces do you plan to write, and on what schedule?
It is one of the blessings of my life that I have abundant energy, so I do plan to write a lot. The decisions and orders of the Court very likely will provide the core of material for stories, produced either on an immediate or same-day basis, or in more extended form within a day or so. Those would be, I should think, like news stories, though hopefully with more penetrating depth than newspapers or broadcast outlets would normally provide. That, at least, would be my intention in the beginning, with the Court concluding its current term in a rush this month. From time to time, I would like to cover important and significant new cert filings, with the specific aim of putting the individual case into a larger context. I also will hope to do longer feature and/or analytical pieces, such as trend discussions. Another type of story I would like to do, at least occasionally, would be a followup: how is a significant Court ruling working out in the lower courts? If there is ever a new nominee to the Court, I would expect to have some role in covering that for SCOTUSblog. Obviously, I will be open to suggestions from colleagues and from readers. I am not terribly interested in personality stories, being much more devoted to substance. Justice Douglas once said rather quaintly that reporters covering the Court "were only interested in whether one Justice was kicking the air out of the tires of another Justice." I am interested in internal Court conflicts, but not at that level. I do know how to do such stories, however.
Do you expect reporting through the weblog to differ significantly from reporting through a newspaper, and if so how?
This is a new field for me, but I am very flexible and a patient learner. But, at the outset, I would expect that more of the judgments I would make in an analysis or trend story would be based on my own research, and experience, more than on quote-mongering of the kind that is now so commonplace in newspaper stories. Naturally, like any reporter in any medium, I will depend very heavily upon people involved in disputes at the Court, or on the way there, to keep me alerted to what they are doing, and to assist me in obtaining documents. Readers, I would expect and hope, will let me know if I am taking the wrong tack. As a firm believer, philosophically, in the "free culture" ideas of Lawrence Lessig, I would expect to be less confined by an editor's agenda or menu. The Court, though, would always be the focus, as, I think, befits the blog's already established character.
What principally separates good reporting on the Court from bad, and what do you do to produce the former?
The difference, I think, is in the depth of one's scholarly commitment to the substance of the law and the traditions and habits of the Court. No reporter on the beat is likely ever to succeed if he or she is superficially involved or historically challenged. To a degree that might, to others, seem excessive, most of my reading, on and off duty, is about the Court and its history. (My most recent reading, for example, has included Marian McKenna's recent history of the Roosevelt Court-packing fight and Maeva Marcus' durable recounting of the steel seizure case. Next on the shelf is Eric Freedman's "Habeas Corpus." Each, of course, has enduring interest, but also immediate relevancy.) Few experiences have helped me as much as teaching American constitutional history for three years to Penn State undergraduates interning in Washington. It also has helped a lot to know many people who are very good at being judges and lawyers. One of my specific techniques in covering the Court is an attempt to identify legal disputes that may one day reach the Court, and to make certain that I follow them along the way. It is best not to be surprised when an interesting case first arrives at the Court. |
| 10:28 AM | Heather
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Today's News |
News on the U.S. Justice Department’s release of information on Jose Padilla:
Richard Cohen has this opinion piece in The Washington Post;
Phil Hirschkorn of CNN.com;
Dahlia Lithwick of Slate.com; and
Jonathan Turley has this commentary piece in The L.A. Times.
Beth Hanson of The Legal Times has this article discussing today’s conference at the Court, in particular Spargo v. New York State Commission on Judicial Conduct, No. 03-1273 which concerns what candidates for judicial office should be able to say while campaigning.
Marcia Coyle of The National Law Journal has this article on the Court’s decision in Thornton v. U.S., No. 03-5165, issued last week.
Warren Richey of The Christian Science Monitor has this article concerning the Court’s decision in Yarborough v. Alvarado, No. 02-1684.
Joan Biskupic of USA Today has this article on Justice Stevens and his role within the Court.
Steven Lubet has this editorial piece in The Chicago Tribune on Chief Justice Rehnquist’s creation of a panel to review federal judicial ethics. |
| 11:36 AM | Heather
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Today's News |
News on the Court’s decision, issued yesterday, in Yarborough v. Alvarado, No. 02-1684:
Linda Greenhouse of The New York Times;
Stephen Henderson of Knight Ridder Newspapers;
Charles Lane of The Washington Post; and
David Savage of The L.A. Times.
David Savage of The L.A. Times had this article on the Court’s decision not to hear Santa Barbara News-Press v. Ross, No. 03-1338, and Ross v. Santa Barbara News-Press, No. 03-1432, cert. was denied yesterday in both cases.
News on information released by the U.S. Justice Department on Jose Padilla, who is the respondent in Rumsfeld v. Padilla, No. 03-1027:
Dan Eggen of The Washington Post;
Anne Gearan, AP, on findlaw.com;
Charlie Savage of The Boston Globe; and
Richard Schmitt of The L.A. Times.
Shannon Sollinger of The Loudon Times-Mirror has this article on the wine cases.
WNBC.com has this posting on a commencement speech at Yeshiva University's Benjamin N. Cardozo law school given by Justice O’Connor.
TheNewOrleansChannel.com has this article on Prewitt Enterprises v. OPEC, No. 03-1592, a pending cert. petition by a service station owner requesting the Court to consider an antitrust lawsuit against OPEC. Interestingly, David Boies – of Bush v. Gore and Microsoft fame – represents the petitioner. |
| 6:46 PM | Marty
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Documents in Wine-Shipment Cases |
| Professor Alex Tanford at Indiana has set up a handy webpage linking to many of the briefs and other documents in the three cases in which the Court granted cert. last week on the question whether a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Section 2 of the 21st Amendment. |
| 6:40 PM | Marty
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Texas Redistricting Cases |
| At its Conference last Thursday, the Court was scheduled to consider the petitions in five cases challenging the recent Texas congressional redistricting. On Friday, the Court asked Texas to file responses to the petitions by June 28th. See, for example, the docket sheet in No. 03-1391, Jackson v. Perry. This means that in all likelihood the Court will not rule on the petitions until after the summer recess. |
| 1:17 PM | Amy
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More on the Decision Today in Alvarado |
Michael Alvarado, who at the time was seventeen going on eighteen, agreed to help his friend, Paul Soto, steal a truck. When the truck’s driver refused Soto’s request for money and the keys, Soto shot and killed him, and Alvarado helped to hide the gun.
About a month after the shooting, Alvarado’s parents brought him to a police station at the request of a detective working on the case. According to Alvarado, their request to be present while Alvarado met with police was rejected, and they remained in the lobby while Alvarado was interviewed for approximately two hours. During the interview, Alvarado initially denied any involvement in the shooting, but – after being told that witnesses had placed him at the scene – eventually changed his story and admitted his involvement. At trial, Alvarado sought to suppress his statements on Miranda grounds, but the trial court ruled that no Miranda warning was required because the interview was noncustodial. Alvarado was subsequently convicted of first-degree murder, although his sentence was later reduced to second-degree murder.
Alvarado’s efforts to rely on Miranda to overturn his conviction were similarly unsuccessful on direct appeal and in the U.S. District Court for the Central District of California, which denied his petition for a writ of habeas corpus. The district court explained that not only was Alvarado not in custody, but “[a]t a minimum,” AEDPA’s deferential standard of review – which permits federal courts to grant a state prisoner's habeas petition only if the state court’s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law” – would foreclose relief.
Alvarez found a more sympathetic audience in the Ninth Circuit, which reversed. That court held that in light of previous non-Miranda Supreme Court precedent considering a suspect’s juvenile status, the state court should have considered Alvarado’s youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave.
The Supreme Court granted certiorari. Today, by a vote of five to four, it reversed. In an opinion by Justice Kennedy, the majority concluded that the state court’s application of clearly established Supreme Court precedent was reasonable because “fair-minded jurists could disagree over whether Alvarado was in custody.” The Court highlighted a series of facts that “weigh against a finding that Alvarado was in custody”: he was not brought to the station by the police and was not required to appear at any particular time; he was not threatened or told that he would be placed under arrest; he was told that the interview would be brief; and the focus of the interview was on the crimes of Alvarado’s co-defendant and an appeal to be helpful to the police. The majority acknowledged that other facts pointed toward a finding that Alvarado was in custody, including that Alvarado had been brought to the station by his parents; that he had not been told that he was free to leave; and that his parents’ request to be present at the interview was rejected. The Court emphasized that although in some cases, what constitutes a “reasonable judgment” can be relatively narrow because the Court has established a specific legal rule, here the state courts are accorded more leeway because the legal rule at issue – whether Alvarado was in custody – is a more general test.
The Court rejected the Ninth Circuit’s emphasis on Alvarado’s age and inexperience with law enforcement, explaining that it had not stated that such factors were “relevant to the Miranda custody analysis.” The Court left open the possibility that in other, unspecified situations, a principle could be sufficiently “fundamental” that its application to “new factual permutations” “will be beyond doubt” and thus constitute “clearly established law” for AEDPA purposes, but it also made clear that Alvarado’s was “not such a case.” The Miranda test, the Court continued, is “an objective rule designed to give clear guidance to the police, while consideration of a suspect’s individual characteristics * * * could be viewed as creating a subjective inquiry.”
In a one-paragraph concurrence, Justice O’Connor emphasized that while “[t]here may be cases in which a suspect’s age will be relevant to the Miranda ‘custody’ inquiry,” here the state court’s failure to mention Alvarado’s age cannot be deemed unreasonable when Alvarado was in fact nearly eighteen, as “17-½-year olds vary widely in their reactions to police questioning, and many can be expected to behave as adults.”
In contrast to the majority’s conclusion that reasonable jurists could differ regarding whether Alvarado was in custody, the dissent – written by Justice Breyer and joined by Justices Stevens, Souter, and Ginsburg – found that the “obvious answer” to the question whether “a ‘reasonable person’ in Alvarado’s ‘position’” would have felt “he was ‘at liberty to terminate the interrogation and leave’” was “no.” The dissent notes in particular that Alvarado’s youth in fact played a role in whether he felt he was at liberty to leave, in the sense that he was brought to the station at the request of the police by his parents, who were not permitted to remain with him for the interview.
Further, the dissent posited that “the precise legal definition of ‘reasonable person’ may, depending on legal context, appropriately account for certain personal characteristics” – including a suspect’s youth. The dissent rejected the contention that taking a suspect’s youth into account was somehow inconsistent with Miranda’s “objective” inquiry; it explained that the focus of such an inquiry is “objective circumstances” – such as Alvarado’s age – that are known to both the officer and the suspect and that are likely relevant to the way a person would understand his situation.” Finally, the dissent dismissed the majority’s reference to the Ninth Circuit’s reliance on Alvarado’s “history [or lack thereof] with law enforcement” as “a bright red herring” – yes, we find that interesting too – in the present context where Alvarado’s youth * * * simply helps to show * * * that his appearance at the police station was not voluntary.”
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| 10:42 AM | Heather
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Today's News |
David Savage of The L.A. Times had this article on Sunday discussing the Court’s final month of this term and those opinions that are still pending.
Tony Mauro of The Legal Times has this article concerning, among other things, Chief Justice Rehnquist’s formation of a committee which will examine federal judicial ethics.
The Chicago Tribune has this editorial piece on the Sierra Club's request that Justice Scalia recuse himself from the Cheney case.
Andrew Tilghman of The Houston Chronicle has this article on the failures of Texas and eleven other states to enact guidelines to define mental retardation for purposes of capital cases, nearly two years after the Court deemed the execution of the mentally retarded unconstitutional.
Bob Kretschman of The Daily Sentinel has this article on the wine cases in which cert. was granted last week. |
| 10:21 AM | Marty
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Orders List |
| Here is today's Orders List. The Court did not grant any petitions. |
| 10:04 AM | Marty
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Only One Opinion Today |
No. 02-1684, Yarborough v. Alvarado, reversed 5-4. Justice Kennedy wrote the majority opinion. Justice O'Connor wrote a one-paragraph concurrence. Justice Breyer wrote a dissenting opinion that Justices Stevens, Souter and Ginsburg joined. Justice Breyer's opinion contains the phrase "bright red herring," a variation on the metaphor that appears only once previously in American judicial opinions, see U.S. v. 2204 Barbara Lane, 960 F.2d 126, 128 (11th Cir. 1992) (Fay, J.). (As one astute reader notes, this means that "bright red herring" no longer is a hapax legomenon. See Kungys v. United States, 485 U.S. 759, 769 (1988).)
The next day for opinions will be Monday, June 7th. |
| 5:39 PM | Tom
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The full set of S.G. invitation briefs |
The government appears to have filed briefs in six of the eight pending cases in which the Supreme Court invited the S.G. to submit a brief expressing the views of the United States. The two outstanding invitations are No. 03-779, Andrx Pharmaceuticals v. Kroger (invitation issued Jan. 26), and No. 03-1238, IBP v. Alvarez (invitation issued May 2). Cert. rulings in those cases will wait until the Fall.
By contrast, the Court will very likely issue orders on June 28 in the six cases in which briefs were filed:
1. Higbee Co. (recommending denial -- see below)
2. 3M (recommending denial -- see below)
3. Regal Cinemas (recommending denial -- see below)
4. Bates v. Dow Agrosciences (recommending denial)
5. Sherrill, NY v. Oneida Indian Nation (recommending denial)
6. Dura Pharmaceuticals v. Broudo (recommending grant)
In Bates, the government characterizes the question as: "Whether the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., preempts petitioners’ state tort claims alleging that application of respondent’s herbicide damaged petitioners’ peanut crops." The government urges denying review: FIFRA’s preemption requirements have generated a substantial amount of litigation. Contrary to petitioners’ contentions, however, generally the courts have developed a consistent and coherent approach to resolving preemption claims. This case does not present any square conflict of fundamental importance requiring this Court’s review. To the contrary, this case turns largely on the characteristics of petitioners’ particular state law claims, which present the very threat to uniform labeling requirements that led Congress to include an express preemption provision within FIFRA."
In Sherrill, the government characterizes the question as whether a Tribe is immune from taxation relating to land it purchased but that was previously conveyed away from the Tribe in violation of federal law. The government recommends denying cert.: "Applying settled principles of federal Indian law to the unique historical and factual circumstances of the Oneida Indians and their treaty-protected lands, the court of appeals correctly held that the parcels at issue are immune from state and local taxation."
In Dura, the government characterizes the question as: "Whether a securities fraud plaintiff invoking the fraud-on-the-market theory must demonstrate loss causation by pleading and proving a causal connection between the alleged fraud and the investment’s subsequent decline in price." The government recommends granting cert.: "There is an acknowledged circuit conflict regarding nature and scope of the plaintiff ’s burden to plead and prove loss causation in a fraud-on-the-market case under Rule 10b-5; the court of appeals decided that question incorrectly; the question is one of recurring importance; and this case is a suitable vehicle for resolving it." |
| 5:39 PM | Marty
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SG Recommends Grant of Cert. to Decide Whether Section 3 of RLUIPA Violates the Establishment Clause |
| As we discussed this morning, the SG today filed a Brief for the United States -- a Respondent that intervened to defend the constitutionality of RLUIPA -- in No. 03-1404, Bass v. Madison. The SG, like the plaintiff, argues that the Court should grant cert. to decide whether section 3 of RLUIPA violates the Establishment Clause, but that the Court should deny cert. on the remaining constitutional challenges to the statute. As for the Sixth Circuit case in which another peititon is pending, No. 03-9877, Cutter v. Wilkinson, the SG writes: "The later petition filed in the Sixth Circuit case, Cutter, et al. v. Wilkinson, et al., No. 03-9877, provides a less optimal vehicle for this Court's review, due to the multiplicity of parties and factual claims presented in the three combined cases, and the complications in the alignment of all the different parties as petitioners and respondents that would arise were the Court to consolidate consideration of that case with the present petition. In addition, were the Court to grant that petition, in which RLUIPA was held to violate the Establishment Clause, the respondent state officials would be free to raise a host of distinct constitutional challenges as alternative grounds for affirmance. As explained in point 2, infra, such a development could require this Court to address a number of difficult, sensitive, and vitally important constitutional issues without the benefit of their consideration by the court of appeals in the instant case, in the Cutter case, or by many other courts of appeals. Accordingly, if this Court grants the instant petition, the United States will suggest that the Cutter case be held pending the Court's ruling in the case at hand." |
| 5:27 PM | Marty
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CVSG Brief -- Higbee Co. |
| The SG today filed a brief in response to the Court's invitation in No. 02-1646, Higbee Co. v. Chapman. The brief concludes that the Court should deny cert., despite the fact that there is a circuit split and the U.S. Court of Appeals for the Eighth Circuit has (in the SG's view) answered the question incorrectly in Adams v. Boy Scouts of America, 271 F.3d 769 (8th Cir. 2001): "The question presented in this case is whether the 'full and equal benefit' clause of 42 U.S.C. 1981(a) applies to private conduct. Congress directly answered that question in 42 U.S.C. 1981(c), which provides that '[t]he rights protected by this section are protected against impairment by nongovernmental discrimination.' Because the statute is so explicit, certiorari review by this Court is not warranted at this time. The conflict in the circuits is shallow and, in light of Section 1981(c)’s plain text, may not endure. In addition, the interlocutory character of the petition creates a significant likelihood that further proceedings on remand could render the question presented irrelevant to the outcome of this case." |
| 5:16 PM | Marty
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CVSG Brief -- Regal Cinemas |
In a brief filed today in No. 03-641, Regal Cinemas Inc. v. Stewmon, the SG argues that the Court should deny cert.: "The central question in this case is whether the Department of Justice has reasonably interpreted its own regulation, which requires that wheelchair users in movie theaters be afforded “lines of sight” that are “comparable” to those enjoyed by the general public, to prohibit movie theaters from relegating all wheelchair users to the worst seats in the very front of the theater and excluding them entirely from the benefits of modern stadium-style theater designs. That issue does not warrant further review both because forthcoming regulatory amendments are expected to address and resolve the interpretive question that petitioners raise and because the Justice Department’s application of its regulation fully comports with longstanding administrative principles. Beyond that, petitioners’ attempt to obtain, on interlocutory appeal of a liability ruling, this Court’s review of purely hypothesized equitable relief that has not been, and may never be, ordered by the lower court or any other court does not satisfy this Court’s established
criteria for granting certiorari."
In a related case, No. 03-1131, Cinemark USA, Inc. v. United States, the SG has filed a brief opposing cert. |
| 5:11 PM | Tom
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SG Invitation Briefs |
We've received the first of the invitation briefs filed by the Solicitor General today.
The government has recommended denying cert. in 3M v. LePage's and Regal Cinemas v. Stewmon. |
| 11:53 AM | Amy
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New Cert. Petition |
| Jenner & Block's Don Verrilli recently filed an interesting cert. petition on behalf of the Recording Industry Association of America. The question presented is whether Section 512(h) of the Digital Millenium Copyright Act of 1998, which allows a copyright owner to obtain and serve a subpoena on an internet service provider (ISP) -- here, Verizon -- to learn the identity of a customer allegedly infringing the owner's copyright, extends to cases in which the allegedly infringing material is stored on the customer's computer rather than on the ISP's server. The case is No. 03-1579, Recording Industry Ass'n of America v. Verizon Internet Services Inc. |
| 10:59 AM | Heather
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Today's News |
Mitchell Berman has this commentary piece in The L.A. Times concerning partisan gerrymandering.
Tony Mauro has this article on the Stanford Supreme Court litigation clinic that Tom taught with Pam Karlan this semester and that Amy Howe will join next year as well.
Marcia Coyle of The National Law Journal has this article discussing the Court’s decision in Tennessee v. Lane, No. 02-1667. Warren Richey of The Christian Science Monitor has this article on the same decision. [Disclosure: Goldstein & Howe, P.C. for respondent.] |
| 6:40 AM | Marty
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Deadline Today for October Term 2003 -- and Notes on a RLUIPA Petition |
Today's a deadline, of sorts. In cases with petitions pending, respondents' briefs must be filed by today in order to guarantee that the Court will have an opportunity to consider the petitions at or before its final conference of the Term, on June 24th. Cases in which respondents' briefs are filed after today will almost surely be placed on the "summer list," and considered at the first conference of the fall.
The Court has invited the SG to provide the views of the United States in eight pending petitions. If past practice is any guide, it is likely the SG will file briefs in at least five of those cases today:
No. 02-1646, Higbee Co. v. Chapman
No. 02-1865, 3M Co. v. LePage's Inc.
No. 03-388, Bates v. Dow Agrosciences LLC
No. 03-641, Regal Cinemas Inc. v. Stewmon
and
No. 03-779, Andrx Pharms., Inc. v. Kroger Co.
(If anyone receives electronic copies of these briefs before they're posted on the SG's website, please let us know so that we can link to them here.)
In addition, although its brief is not due until June 9th, it is possible that the SG will file a brief for the United States as Respondent today in No. 03-1404, Bass v. Madison, a case involving a challenge by the State of Virginia to the constitutionality of section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA). Section 3 requires state prison systems that receive federal funds to alleviate substantial burdens that they impose on religious exercise unless they can satisfy the "compelling interest" test of Sherbert v. Verner, a test also codified in RFRA (which governs federal prisons) and discussed in City of Boerne v. Flores. In another case, Cutter v. Wilkinson, the U.S. Court of Appeals for the Sixth Circuit has held, in contrast to other courts of appeals, that RLUIPA section 3 violates the Establishment Clause. In the Virginia case, the Court of Appeals for the Fourth Circuit expressly disagreed with the Establishment Clause holding in Cutter.
Virginia's petition in Bass can be found here. Somewhat surprisingly, the petition focuses as much or more on Commerce Clause and Spending Clause challenges (as to which there is no circuit split) as it does on the Establishment Clause. It is highly unlikely that the Court will grant cert. on any question other than the Establishment Clause challenge. The plaintiff in Bass has acquiesced to cert. on the Establishment Clause question (while opposing cert. on the remaining questions): Here's his brief.
The SG's brief in Bass may be of special significance because the circuit split issue isn't quite "clean" in one respect. In its petition, Virginia expressly rejects the Establishment Clause theory on which it had won in the district court, and that the Sixth Circuit invoked in Cutter (namely, that a government can accommodate religious exercise only if it provides comparable accommodations for the exercise of other constitutional rights). There's good reason that Virginia repudiates that theory -- namely, that Virginia wishes to preserve its own ability to grant religious accommodations, including accommodations of the very sort involved in this case (provision of kosher meals to prisoners). It so happens that Virginia does provide kosher meals to some prisoners for religious reasons. (It denied plaintiff Madison such an accommodation, however, because (i) it determined that he "had adequate alternatives" from other menus (e.g., the "no pork" and vegetarian menus); (ii) it doubted the sincerity of his religious beliefs; and (iii) "it considered Madison's history of disciplinary problems.") Because Virginia does not wish to limit its own ability to provide kosher meals to prisoners of its choosing, it relies on two alternative Establishment Clause theories: (i) that the Clause -- in addition to imposing substantive constraints on both federal and state governments -- prevents Congress from interfering with a state's choices about how to accommodate religion; and (ii) that, per Thornton v. Caldor, a government cannot act to alleviate a burden on religious exercise not of its own making (except, as under title VII, when the required accommodation is minimally intrusive on the entity that imposed the religious burden). These are both intriguing theories, but, as Virginia concedes, they are not specifically the subject of a circuit split. Virginia correctly notes, however, that if the Court grants cert. to consider the broader question of whether the Establishment Clause prohibits Congress from enacting section 3 -- a question on which there is a circuit split (the Court of Appeals for the Sixth Circuit has in effect rendered section 3 invalid in state institutions in Michigan, Ohio, Kentucky and Tennessee) -- the Court itself can consider the Establishment Clause theory on which there is a circuit split, even though all the parties to the case (Madison, Virginia and the United States) presumably will argue against it.
The plaintiffs in the Sixth Circuit case, Cutter v. Wilkinson, No. 03-9877, have also filed a petition for cert. -- but it's later in time, and so that probably won't be the vehicle the Court considers if it decides to resolve the Establishment Clause question. |
| 4:56 PM | Heather
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Voting Rights |
| Here is an ElectionLaw Blog post on upcoming voting rights petitions at the Court. |
| 12:56 PM | Tom
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Likely dissent from the denial of cert. |
We're keeping our eye on No. 03-1082, Colorado General Assembly v. Salazar, which has been listed for four consecutive conference of the Justices. When cases are relisted that many times, the most likely outcomes are (a) a dissent from the denial of cert., and (b) a summary reversal. The question in this case involves the responsibility under the U.S. Constitution of the Colorado Legislature to design congressional districts. It has the feel of many of the issues presented by Bush v. Gore. Because that sounds like an unlikely candidate for summary reversal (including because we believe most members of the Court would strongly prefer to avoid revisiting issues related to Bush v. Gore), we predict a dissent from the denial of cert. by one or two Justices.
We note, however, that sometimes this number of relists does eventually produce a cert. grant. This Monday, for example, the Court granted cert. in No. 03-1039, Goughnour v. Payton, a case involving the Ninth Circuit's holding that the California Supreme Court had engaged in an unreasonable application of federal law, which similarly had been listed for Conference four times. |
| 9:39 AM | Heather
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Today's News |
Tony Mauro of The Legal Times has this article discussing today’s conference at the Court, in particular Santa Barbara News-Press v. Ross, No. 03-1338.
The Washington Post has this article concerning an essay contest in which contestants were asked to write on the significance of Brown v. Board of Education.
The New York Times has this opinion piece on Chief Justice Rehnquist’s newly formed panel which will examine federal judicial ethics. |
| 10:51 AM | Heather
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Hall v. U.S., No. 03-1294 |
| Here is the Reply Brief we filed yesterday in the above mentioned case. |
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