| 10:41 AM | Heather Lloyd
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Today's News |
The AP’s Gina Holland has this report in The Boston Globe on the Court’s new practice of identifying justices, in transcripts, by their names when they ask a question during oral arguments.
Joan Biskupic of USA Today has this article discussing possible changes in the Court based on who wins the presidential election.
Edward Lazarus has this article on findlaw.com discussing David Margolick’s Vanity Fair article and the secrecy surrounding the Court.
This post, on the blog Nomination Nation, discusses recent media attention regarding the Court’s secrecy.
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| 9:47 AM | Heather Lloyd
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Court TV Press Release |
On Monday, Court TV will launch a limited new series, "First Monday." Three specials, starting Monday, will take a look at a different aspect of the judicial system as it relates back to the Supreme Court. Here is the press release.
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| 2:58 PM | Amy Howe
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December Arguments |
The December oral argument calendar is now available online.
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| 4:08 PM | Amy Howe
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Not Quite Bush v. Gore Redux |
Today the Court rejected Ralph Nader's application for a stay of the Oregon Supreme Court's decision keeping him off the ballot there. Justice Breyer would have granted the stay.
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| 1:26 PM | Lyle Denniston
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A New Look at Property Rights, and Other Issues |
The economic depression that has lingered for years in New London, Conn., provides the setting for the Supreme Court to examine the power of local governments to seize private property for urban redevelopment – a spreading national controversy. The controversy has about it a David-and-Goliath character, with owners of modest homes and small businesses taking on well-funded and ambitious developers, who are allowed to use governmental power to gain -- literally -- the ground on which they hope to erect major and highly profitable projects in the name of saving the cities.
This time, the Court is not exploring slum clearance, but the transfer of property from one group of private owners to others for a massive industrial and residential upgrade. Such private-to-private transfers have become almost commonplace across the Nation, as hard-pressed communities look for ways to create jobs, increase tax revenue and revitalize their economies, and property owners and their advocates fight back vigorously when their homes and businesses are targeted for the urban wrecking ball.
That controversy may have the widest impact of any of the disputes the Court added to its docket today. The Justices granted review of eight new cases for the Term beginning next Monday. The property rights case is Kelo v. City of New London, docket No. 04-108.
Among other issues in granted cases are these:
Is it unconstitutional, in a defamation case, to ban an individual from ever making any public comment about a public figure? In this case, the target of criticism was the famous defense lawyer, Johnnie Cochran. The case is Tory v. Cochran, 03-1488.
Does an individual who has been denied a permit to build a cellphone tower antenna have a right to sue for damages under civil rights laws, or are the only remedies those provided by the Telecommunications Act of 1996? City of Rancho Palos Verdes v. Abrams, 03-1601.
Does the Americans with Disabilities Act apply to the accommodations and the marketing practices of companies that operate foreign-flag cruise ships in U.S. waters? Spector v. Norwegian Cruise Line Ltd., 03-1388.
Is it unconstitutional for a political party to open its primary election to independent voters, as well as its own party members, but close it to voters who are members of other parties? The case, originally brought by the Libertarian Party, involves a state law in Oklahoma, struck down by the Tenth Circuit. Clingman v. Beaver, 04-37.
May a habeas petition be considered filed on time in federal court if the one-year filing deadline has been suspended by pursuit of a post-conviction challenge in state court, even though the state challenge was denied because it was filed too late under state law? Pace v. DiGuglielmo, 03-9627.
If an individual is given an enhanced prison sentence in a federal case, based upon a prior state conviction, does the nullification of the state conviction compel a reduction of the federal sentence? Johnson v. U.S., 03-9685.
Will the Court further clarify the 1994 ruling in Simmons v. South Carolina on the right of an individual, seeking to avoid a death sentence, to have the jury instructed that it may consider a life sentence without parole? Is a defense lawyer ineffective for a failure to review prior convictions that counsel knows the prosecution will use to support a death sentence? Rompilla v. Beard, 04-5462.
The New London property rights case is a highly significant test of the meaning of two words in the Constitution. It involves the scope of the Fifth Amendment protection against government taking of private property, unless the government plans a “public use” of what it has seized. The amendment also requires compensation for what has been taken, but that is not at issue in this case.
The Connecticut Supreme Court, in a 4-3 ruling on March 9, ruled that property may be taken for a public use so long as the result will be to create “public benefits,” such as creation of new jobs, increasing tax and other revenue, and contributing to urban revitalization. The majority borrows heavily from a famous decision by the Michigan Supreme Court in 1981 in the case of Poletown Neighborhood Council v. General Motors. Interestingly, the Michigan Supreme Court, in a decision in July, overturned the Poletown ruling. (The two Michigan rulings, in 1981 and this year, were based on that state's constitution, while the Connecticut court ruling is primarily an interpretation of the Fifth Amendment to the U.S. Constitution -- that is mainly what makes it available for Supreme Court review. Despite that difference, the Connecticut court said it regarded the Poletown ruling as a landmark because it "illustrates amply how the use of eminent domain for a development project that benefits a private entity nevertheless can rise to the level of a constitutionally valid public benefit.")
The New London case grows out of the efforts by a private corporation to redevelop an area of 90 acres in what is called the Fort Trumbull section of the city, along the Thames River. The project area has been occupied for years by private homes and small businesses. The development corporation, using property-seizure power delegated to it, planned seven parcels of renovation, with a new hotel and conference center, a high-tech research office building, parking and related services for a state park in the parcel, and other office space. Seven property owners challenged the seizure of their property, arguing that the project was not a “public use.”
The property-owners’ appeal to the Supreme Court said: “This is not a case that concerns the use of eminent domain for a traditional public use such as a road or public building; nor does it concern the use of eminent domain for the purpose of urban renewal/blight removal…Rather, this case presents a vital constitutional question that this Court has never before addressed: whether the public use clause of the Fifth Amendment…authorizes the exercise of eminent domain to help a government increase its tax revenue and to create jobs.”
The cases granted today are expected to be argued in January or February. The January argument calendar is now full.
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| 1:24 PM | Lyle Denniston
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Justice “Question” is Now Retired – So to Speak |
The Supreme Court announced today that, beginning next week, the transcripts of arguments before the Court will no longer identify the Justices who join in the exchanges with counsel as “Question.” For example: “Question: Counsel, what is your best case in support of that argument?” From now on, each Justice who asks a question or makes a comment will be identified by his or her own name. It will give the transcript a personal character it has not had.
Over the years, some Justices have actively resisted the suggestion that they be identified with their questions. The late Justice Byron R. White, for example, used to argue that any question posed from the Bench was a question “by the Court,” not by an individual. It was a charming fiction, perhaps.
Today’s announcement by the Court said: “Since 1968, when transcripts were first provided on a regular basis for the Court by private reporting companies, transcripts have identified a question from the Bench not by the Justice but by using the word ‘Question.’” Before 1968, official transcripts were not prepared for the Court on a regular basis, it noted.
The explanation for the change? The Court said it was doing so “in the interest of the accuracy and completeness of the transcripts for reporting, research and archival purposes.”
The first arguments in the Court’s new Term will come next Monday, and the new policy will then go into effect. Transcripts are available on the Court’s website, www.supremecourtus.gov, within 10 to 15 days after the transcripts are completed by the reporting company.
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| 11:06 AM | Amy Howe
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More on Today's Grants |
Following up on Marty's post, the Court's eight grants today are one more than it needed to fill out its January argument calendar. It's possible that the Court could grant additional cases next week -- at least one likely grant, No. 03-1404, Bass v. Madison, was not on today's list -- but such a move would be a departure from the Court's past practice.
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| 10:47 AM | Marty Lederman
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Today's Order List; an Important Public Use Cert. Grant |
Here is today's Order List, on which the Court grants cert. in eight cases, including the closely watched No. 04-108, Kelo v. New London, a potentially very important Just Compensation Clause case that is in effect a follow-up to Berman v. Parker and Midkiff. It involves whether the so-called "public use" requirement prevents governments from taking real property by eminent domain -- in exchange for just compensation -- for purposes of "economic development." The state (Connecticut) court opinions are very long, very thorough and very interesting. Here is the majority opinion; and here is the dissent.
Rick Hasen has posted a helpful summary of the grant in No. 04-37, Clingman v. Beaver, in which Oklahoma has petitioned to defend the constitutionality of its "semi-closed" party primary system.
Somewhat surprisingly, no word yet on the two petitions in cases challenging the constitutionality of section 3 (the prison provisions) of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). |
| 10:12 AM | Lyle Denniston
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| 10:07 AM | Amy Howe
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Today's Grants |
We don't have the complete list yet, but we can tell you that the Court granted cert. today in No. 03-1388, Spector v. Norwegian Cruise Lines, in which we represent the petitioners as part of our work with the Stanford Law School's Supreme Court Litigation Clinic. In Spector, the Court will consider whether Title VII of the Americans with Disabilities Act applies to companies operating foreign-flag cruise ships in U.S. waters. It's the clinic's fourth cert. grant in as many petitions.
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| 5:30 PM | Lyle Denniston
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Hamdi: The Price of Freedom is High |
(This is one of a continuing series of reports on the aftermath of the Supreme Court's June 28 decision in the case of Hamdi v. Rumsfeld.)
After nearly three years in captivity, Yaser Esam Hamdi will be on his way to Saudi Arabia by the end of this week, by then no longer in U.S. military custody. But the nature of freedom he will enjoy for the rest of his life is heavily qualified by the terms of a four-page agreement he made with U.S. officials as a condition for his release. A violation of any part of the agreement could mean detention again as an "enemy combatant." The terms of the deal, reached Septemer 15, were made public Monday in a filing in U.S. District Court in Norfolk, Va., in Hamdi's habeas challenge to his detention (Hamdi v. Rumsfeld, docket No. 02-439 -- a case that produced a landmark Supreme Court ruling June 28 on the rights of U.S. citizens detained by the U.S. during the war on terrorism).
Thursday of this week was set as the target date for him to be flown -- "in civilian clothes and unhooded," as the agreement says -- to Saudi Arabia, which the U.S. citizen, born in Louisiana, now says is the country of his citizenship. In any event, the flight will come as soon after Thursday as the U.S. government is able to arrange it.
For as long as he lives, the agreement specifies, Hamdi is never to travel to Afghanistan, Iraq, Pakistan, Syria, the West Bank or the Gaza Strip in Israel. For the next five years, he can travel nowhere outside Saudi Arabia. For the next ten years, he cannot even seek permission to travel to the U.S., and for the next 15 years, he must notify the U.S. Embassy or any Saudi official named by the U.S. 30 days in advance of any plan to travel outside that country. He released U.S. officials from any legal liability for his detention, surrendered the right to go to court to challenge any of the terms of the agreement, and agreed to dismiss his habeas challenge.
Although news accounts have said that the agreement means that Hamdi will not be charged with any crime (he has never been charged during his captivity), the terms of the agreement made public do not say that explicitly, and the agreement says those terms constitute the whole of the agreement. The government's part of the deal is to release him from U.S. custody and to arrange for his travel to Saudi Arabia -- perhaps an implication that there will be no criminal charges. Although the U.S. reserved the right to share with the Saudis any information it has about Hamdi, it promised not to ask that he be detained in Saudi Arabia for "conduct known to the U.S." as of the date of the agreement. If it does share information with the Saudis about him, the U.S. is committed to telling the Saudi government that U.S. national security does not require him to be detained.
Hamdi, under the agreement, is committed to formally renouncing any claim to U.S. nationality, "renounces terrorism and violent jihad," agrees not to enage in any "combatant activities" or "acts of terrorism" against the U.S. or its allies, promises not to harbor any terrorist, vows not to join the Taliban, al Qaeda or any terrorist group, agrees to tell the U.S. Embassy in Saudi Arabia and the Saudi government if anyone solicits him to take part in any terrorism, or comes into contact with anyone he has been told by the U.S. is a terrorist, or becomes aware of any planning for such activities.
The agreement was filed before U.S. District Judge Robert G. Doumar, who has been highly skeptical of the government's treatment of Hamdi during all of the court proceedings surrounding his detention. It is unclear whether Doumar has any option other than to acquiesce in the deal. Most of the judge's attempts to hold the government to account for the detention have been rebuffed by the Fourth Circuit -- but, ultimately, not by the Supreme Court.
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| 4:34 PM | Tom Goldstein
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Ralph Nader stay request |
The AP has a story on the stay request now pending before Justice O'Connor filed by Ralph Nader in his quest to get on the Oregon ballot: http://www.nytimes.com/aponline/national/AP-Scotus-Nader.html. The request was filed Friday and Justice O'Connor directed that responses be filed this morning.
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| 3:38 PM | Tom Goldstein
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Booker / Fanfan - post-Blakely cases |
The Court has granted the defendants' counsel divided argument, directing both to be ready to discuss both of the questions presented.
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| 3:42 PM | Amy Howe
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Supplemental Briefing Order |
Lyle Denniston reports that the Court today gave the attorneys in No. 02-1028, Norfolk Southern Railway Co. v. Kirby, a parting weekend gift: an order for supplemental briefing on the question whether federal or state substantive law governs the questions presented. (As you no doubt know, the questions presented in that case are (1) Whether a cargo owner who contracts with a freight forwarder who ships to the US is bound by contracts the forwarder makes with carriers; and(2) how, under federal maritime law, to construe the terms of a bill of lading extending liability limitations under the Carriage of Goods by Sea Act.)
The parties are instructed to file their briefs by October 4; oral argument is scheduled for October 6. Moreover, lest the Acting Solicitor General feel left out of the fun, he is "invited" to file an amicus brief on the issue.
(In non-legal terms, this case asks the Court to clarify the right to enforce a cap on liability for damaging freight when that cargo is moved by sea to or from a U.S. port. The first question, or "agency" question, asks whether a clause in shipping documents that sets a limit on liability applies at all if the company that arranged the journey for the cargo was a freight forwarder independent of the original shipper, and was not acting as the agent of that shipper. The second question, known to specialists as the "Himalaya clause" issue, asks whether a liability limit stated in shipping documents and applying to all carriers when the cargo moves by various transportation modes actually protects a "downstream" carrier who did not contract with the firm that arranged the trip. This particular case arises out of an attempt by Norfolk Southern Railway to avoid liability for damages caused to about $20 million worth of machinery shipped to the U.S. from Australila. The goods were damaged when a Norfolk Southern train derailed while carrying the goods on the last leg -- from the port of Savannah, Ga., to a General Motors plant in Huntsville, Ala.)
The Court granted review of both questions on January 9, after getting the suggestion of the Solicitor General to do so. The SG said the shipment in this case "is representative of a large number of international, multi-modal transactions for which uniform rules of law are essential," but noted that the courts of appeals disagree about the rules that should apply to such arrangements. The SG also said that the "container revolution," with more goods moving in bulk containers rather than in single package shipments, makes the case even more important, because containerized cargo moves easily without repackaging via ships, trains, trucks and planes -- another factor suggesting the virtue of uniformity.
It is somewhat uncertain how uniform any resulting legal rules would be if the Court, when it answers the new question it raised today, decides that state -- not federal -- law governs.
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| 11:05 AM | Heather Lloyd
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Today's News |
The AP’s Jim Abrams has this article on findlaw.com discussing a bill passed by the House of Representatives yesterday that would prevent federal courts, including the Supreme Court, from ruling on whether the words “under God” should be removed from the Pledge. Carl Hulse of The New York Times has this article on the same bill.
Slate’s Dahlia Lithwick has this article on Yaser Hamdi’s release.
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| 11:18 AM | Heather Lloyd
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Case Website |
Citizens for Voluntary Trade has setup a case information page on their website for Veneman v. Livestock Marketing Ass'n and Nebraska Cattlemen v. Livestock Marketing Ass'n, Nos. 03-1164 and 03-1165. [Disclosure: Goldstein & Howe, P.C. represents Respondents in these cases.]
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| 9:38 AM | Tom Goldstein
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Vanity Fair Investigative Piece |
Many of you will have heard of and read the lengthy October 2004 Vanity Fair article by David Margolick et al. on the 2000 election litigation, with a focus on never-before-reported details about what happened inside the Supreme Court. The piece has received a great deal of attention inside the Court because, as the article details, "[a] surprising number of [law] clerks [from that term] talked to Vanity Fair." Tony Mauro did a short piece on the article (subscription required), but given the new details the article contains, it has received surprisingly little press attention otherwise. Vanity Fair does not have a web-site, but we're grateful to have received permission to post the piece itself, as it appears in the magazine. So here you are, in two pieces: Part 1 and Part 2.
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| 10:39 AM | Heather Lloyd
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Today's News |
The AP’s Gina Holland has this article on findlaw.com discussing Justice Stevens’s defense of the Justices in light of media coverage regarding the Justices’ summer vacations and the relative secrecy of the Court’s operations.
Tony Mauro of Legal Times has this article on the effect of the presidential election on the Court.
Laurie Cohen and Gary Fields of The Wall Street Journal had this article (subscription required) on Monday on Blakely’s effect on five pending criminal cases.
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