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The petition of the day is:
Docket: 11-685
Issue(s): Whether there must be actual pecuniary harm for a taxpayer to have standing to sue a municipality for illegal municipal expenditures.
In association with Bloomberg Law
Source: SCOTUSblog
Oral arguments are over for the calendar year at the Court, and the Justices took the bench for the last time in 2011 on Monday morning to release their second opinion of the Term in a case that was briefed and argued on the merits. In Judulang v. Holder, the Court returned to the complicated world of federal immigration law to hand a win to the immigrant and a rebuke to the government.
The petitioner in the case, Joel Judulang, was born in the Philippines but came to the United States in 1974, when he was eight. In 2005, the Department of Homeland Security began efforts to deport him because in the late 1980s he had pleaded guilty to voluntary manslaughter after participating in a fight in which another individual shot and killed a third person. The government charged Judulang with having committed an “aggravated felony” involving a “crime of violence” – which would be grounds for deportation.
If Judulang had pleaded guilty after 1996, the procedure would be relatively straightforward. The immigration judge would have first determined whether he was deportable. If so, the judge would then determine whether he was nonetheless eligible to apply to stay in the United States under a provision of the immigration laws known as “cancellation of removal,” which gives the Attorney General the discretion to allow a deportable immigrant who meets the strict criteria outlined in the law to remain in the country. The “cancellation of removal” provision, which went into effect in 1996, applies to two different sets of immigrants: (1) those, like Judulang, who have been in the United States but have done something to put them at risk of deportation; and (2) people who are trying to come into the United States, either for the first time or after a trip, who would not normally be allowed into the country because of something that they have done in the past.
But Judulang did plead guilty before 1996, and so that “cancellation of removal” provision did not apply to his case (which is generally a good thing, because it can be difficult to meet the criteria for that provision). If he wanted to avoid being deported, he needed to rely on the provision that the “cancellation of removal” provision replaced: a statute known as Section 212(c).
The complication is that Section 212(c) didn’t specifically apply to immigrants who are in the country but being deported. Instead, it applied only to immigrants who are trying to come into the country, and prior to 1996 there was no comparable law for immigrants who are already in the country facing deportation. That difference could create seemingly unfair results: for example, an immigrant who committed an offense that could get him deported might be able to use Section 212(c) if he left the country and then came back, but someone who committed the same offense but stayed in the country would not. So, the government has for some time also allowed immigrants facing deportation to try to rely on Section 212(c) to stay in the country.
To figure out whether an immigrant facing deportation could invoke Section 212(c), the government adopted its “comparable grounds” rule: it would compare the ground on which it sought to deport an immigrant with the grounds listed in Section 212(c). If there was a very close correlation between the two sets of grounds, the immigrant would be eligible to avoid deportation. But, like Goldilocks’s chair, the correlation had to be just right: if the kinds of crimes that make up the ground for deportation were too different from those for the grounds listed in Section 212(c), or if the ground for deportation was made up of more or fewer crimes than its counterpart in Section 212(c), the immigrant would not be eligible.
Judalang’s case is a good example. The federal government sought to deport Judulang on the ground that – as I noted above – he had committed an “aggravated felony” involving a “crime of violence.” And the government ruled that he was not eligible to apply to stay in the country because a “crime of violence” does not have any counterpart in Section 212(c). The government took that position even though the crime that Judulang had committed – voluntary manslaughter – could also qualify as a “crime involving moral turpitude,” which is a ground for eligibility under Section 212(c).
Judulang argued that this “comparable ground” rule was “arbitrary and capricious,” which is the standard that governs many challenges to actions by federal agencies. Agencies get a lot of leeway: courts will allow an agency’s action to stand as long as the decision making process that led to the action was reasonable. On Monday, the Court – in an opinion by Justice Kagan – unanimously agreed with Judulang that the government’s policy could not meet this standard.
The Court began by acknowledging that when it reviews an agency’s decision under the “arbitrary and capricious” standard, it should not “substitute its judgment for that of the agency.” But here, the Court explained, the “comparable grounds” policy set up a situation in which an immigrant’s eligibility to apply to stay in the country under Section 212(c) depended on whether there was a close correlation between the ground for his deportation and the grounds listed in Section 212(c). The problem with this scenario, the Court continued, is that it has nothing to do with whether an immigrant who has committed a particular crime should be allowed to remain in the country, and it therefore has no relationship to the purposes of the immigration laws. Thus, the Court reversed the Ninth Circuit’s decision affirming the BIA’s ruling against Judulang and sent the case back for further proceedings – which will presumably include a determination whether he is eligible to apply to remain in the country under Section 212(c).
The case is important both for immigrants and lawyers who care about “administrative law.” The government tries to deport a surprising number of immigrants based at least in part on things they did prior to 1996. The Judalang decision may make more of them eligible to stay in the United States. On the other hand, because the decision is really about the interpretation adopted by the government, the government may turn around and adopt a new, more defensible rule that is just as hard for immigrants to satisfy.
The Court also issued a decision on Monday in Hardy v. Cross, in which the state of Illinois had asked the Court to review a decision by a federal appellate court ordering the state to either release the respondent, Irving Cross, or retry him.
In 1999, Cross went to trial on kidnapping and sexual assault charges. The primary witness against him – the alleged victim – was afraid to take the stand, but she did so and was cross-examined by Cross’s lawyer. After the jury found Cross not guilty of kidnapping and failed to reach a verdict on the sexual assault charges, the trial judge declared a mistrial. Prosecutors decided to try Cross again on the sexual assault charges. However, shortly before the new trial was scheduled to begin, they told the court that – despite repeated efforts – they could not find the victim. Characterizing the state’s efforts to locate the victim as “superhuman,” the trial court allowed her testimony from the first trial to be read out loud to the jury. This time, Cross was convicted of two counts of sexual assault, and the state courts affirmed his sentence on appeal.
Cross was initially more successful when he went to the federal courts, arguing that he was being held in prison in violation of the Constitution because the victim’s testimony should not have been read to the jury. (In technical terms, Cross was asking the federal courts to issue what is called a writ of habeas corpus, which I discussed in more detail earlier this year.) The Constitution’s Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Although the Supreme Court has held that the Clause allows a witness’s testimony to be admitted at a trial if the witness is not available to testify despite a “good faith” effort by the prosecution, the U.S. Court of Appeals for the Seventh Circuit ruled in Cross’s favor. It held that the Illinois court was “unreasonable” when it rejected his appeal on the ground that the state’s efforts to get the victim to testify were sufficient. The state, the Seventh Circuit explained, could (and should) have taken additional steps – such as contacting the victim’s friends and boyfriend about her whereabouts, and subpoenaing her to testify – to make sure that the victim appeared at the second trial.
The state filed a petition for certiorari, asking the Supreme Court to review the Seventh Circuit’s decision, in July 2011. The Justices first considered the case at their September 26 Conference, but they didn’t act on it then. Instead, for two months, the online docket for the case indicated that the case was repeatedly being “relisted” – considered again at a later Conference. As John Elwood patiently reminds us on a regular basis in his Relist (and Hold) Watch for the blog, repeated relistings can be a sign that either a dissent from the denial of certiorari or a summary reversal is in the works. In the first scenario, the Court denies review, but one or more Justices writes an opinion to explain why she would have granted certiorari; in the latter, five or more Justices agree that the opinion below is so plainly wrong that they can decide the case and issue a written opinion for the Court without additional briefing or oral argument.
And in this case, the result was indeed a summary reversal, in a per curiam opinion (that is, an opinion that does not identify any particular Justice as the author). Although most of the Court’s seven-page opinion is taken up by a recitation of the facts and procedural history of the case, the Court makes its point clear in the very first paragraph of the opinion, where it reminds the Seventh Circuit (as well as any other federal judge who might be reading) that federal law “imposes a highly deferential standard for evaluating state-court rulings” in habeas corpus cases. State courts, the Supreme Court emphasizes, must “be given the benefit of the doubt.” In this case, the Court chides the Seventh Circuit, even if the state’s efforts to get the victim to testify at Cross’s second trial didn’t rise to the level of “superhuman,” the Illinois court’s decision in favor of the state was at least “reasonable” (which is all that federal law requires) under the Supreme Court’s cases interpreting the Confrontation Clause, which themselves only require the state’s efforts to find the witness to be reasonable. Monday-morning quarterbacking, the Court seems to suggest, has no place in federal habeas: the fact that the Seventh Circuit could list some other steps that the state might have taken to make sure that the victim testified was not enough to grant Cross federal habeas relief.
The Court’s decision in Hardy is unlikely to have a widespread impact in the future: summary reversals are usually “summary” precisely because they are not close calls, and – as in this case – they usually hinge more on how a lower court has applied an existing legal rule to a particular set of facts than (as in the overwhelming majority of the Court’s cases) on which legal rule is the correct one. But because the Supreme Court communicates with the lower courts almost exclusively through its opinions, the summary reversal in this case still sends a message to federal judges considering requests for habeas corpus in the future: When we say that you should not second-guess state courts, but should instead be “highly deferential” to their decisions, we mean it. And we will pay close attention.
In association with Bloomberg Law
By: SCOTUSblog
On Tuesday, December 6, the Court heard argument in a case – Martel v. Clair - presenting the question of how easy it should be for a death row inmate to replace his appointed counsel in federal habeas corpus proceedings. The respondent, Kenneth Clair, was convicted of murder and sentenced to death nearly twenty-five years ago. In 2005, after an evidentiary hearing on his federal habeas petition, Clair wrote to the district judge complaining that his appointed counsel was making no effort to analyze previously missing physical evidence that had recently been located. In quick succession, the district judge denied Clair’s request to replace his lawyer, denied habeas relief, and retired. The Court of Appeals for the Ninth Circuit decided that the district judge had abused his discretion in denying Clair’s request for replacement counsel, and directed the district court to consider any requests from new counsel to amend the petition to add claims related to the new physical evidence as if they had been made prior to the ruling on the writ.
California complains that the court of appeals, in adopting the “interests of justice” standard applicable in non-capital cases, made it too easy for death row inmates to delay the proceedings and get another opportunity to raise new claims, simply by complaining about their appointed counsel after habeas proceedings were well underway. It contends that the correct standard would allow substitution only if appointed counsel failed to meet the statutory requirements for appointed counsel, faced a conflict of interest, or completely abandoned the client. At oral argument, California made little headway on this front.
Justice Sotomayor was particularly blunt, asking if it was “sort of a made-up standard.” When Ward Campbell, Supervising Deputy Attorney General of California answered “No,” she pressed on. “Can you point to one case in which this standard has been used by any district court or court of appeals?” “Can you point to any inquiry by Congress in which such a test was discussed, considered in any way?” To both questions, Mr. Campbell admitted, “No, I cannot.” Justice Ginsburg followed up by asking, “Where did you get it from?” He responded that it was “analogous to the way this Court over the years has divided up the jurisprudence regarding the Sixth Amendment right to counsel and the dividing line between claims of ineffective assistance of counsel and claims of denial of counsel.”
Justice Sotomayor posited an example of a habeas case where the petitioner’s appointed counsel wants to challenge the death sentence but the inmate himself decides he would prefer to allow the execution to proceed. She suggested that this was a situation where the interests of justice might allow substitution of counsel, but that substitution would not be permissible under the standard suggested by the state. In attempting to explain how substitution could be permissible under the state’s proposed standard, Mr. Campbell urged that such a situation would involve “the failure of the lawyer to truly act as an agent for the client.” When pressed that the same could be said of the failure of a lawyer to follow a client’s direction to pursue particular leads, Mr. Campbell distinguished between decisions that are the client’s and decisions that are the attorney’s.
Justice Breyer suggested that the state’s real concern was not so much with the standard but with the way the court of appeals applied the standard. He asked, “So what you really want us to do is to look at the record of the case, go through it, and say, here, whatever words you want to use, the district court acted in his discretion in saying don’t change the counsel?” This might have given Mr. Campbell the opportunity to argue a less extreme position, and explain why the district court was within its discretion – even under the “interests of justice” standard – to refuse to appoint new counsel after it had already conducted an evidentiary hearing and was about to decide the case. But when he began to answer Justice Breyer’s question with “Yes, that is — yes,” Justice Scalia jumped in to remind him of his broader argument, saying, “Well, no, you don’t want that. . . . You want us to say the words to be used are the words that we use in deciding whether you have been accorded your constitutional right to counsel, right?”
Mr. Campbell then agreed with Justice Scalia. But it nevertheless seemed even more unlikely after argument than before it that the Court would adopt the state’s suggested standard. Particularly telling, perhaps, is that Justice Kennedy noted that “it seems to me that at the end of the day it’s going to be something very close to interest of justice.”
Although no one except Justice Scalia asked questions suggesting any inclination to adopt California’s strict standard for substitution of counsel, several members of the Court seemed troubled by Clair’s argument that the district judge had abused his discretion in refusing to substitute counsel.
Clair’s counsel, former Solicitor General Seth Waxman, following a strategy of seeking to make the case as small as possible, began by stating the “court of appeals held that it was an abuse of discretion to deny substitution without making any inquiry, even of counsel, into the specific situation alleged by Mr. Clair.” He then began to recite all of the broader propositions that the court of appeals did not decide, but before he could finish that list, Chief Justice Roberts asked whether, if Mr. Clair had written to the Supreme Court complaining about how Mr. Waxman was planning to argue the case, “we have an obligation to conduct an inquiry into his complaint?” Mr. Waxman responded that “in the mine run” of cases, “there may not be any duty of independent inquiry,” and that if there were a duty, it would simply to “inquire of the two counsel in the case.”
Chief Justice Roberts grilled Mr. Waxman regarding the significance of the district judge’s retirement the day after denying substitution of counsel. Noting that the point is mentioned “no fewer than six times in your brief,” he asked, “What is your point, that the judge altered his disposition of a legal matter before him for his personal convenience?” When Mr. Waxman responded that it suggested “an explanation for why he failed to conduct the minimal inquiry,” Chief Justice Roberts cut him off, “So you are saying he violated his judicial oath for his own personal convenience, that he failed to do something that you say he should have done, because he was retiring?” Mr. Waxman retreated, stating that the retirement was relevant to the remedy, that is, whether the court of appeals should have simply sent the case back for the appropriate inquiry to be conducted. The Chief Justice did not let go, stating that it struck him as “argument by innuendo that I think is very unjustified.” Even after Mr. Waxman apologized, and Justice Kagan started to ask a question, the Chief Justice persisted, “I’m still trying to get to the point of the fact that he was retiring.”
Eventually, the Chief Justice yielded to Justice Alito, who asked why the district judge, who was about to decide the habeas case when Clair’s letter came in, shouldn’t be understood to have decided that there was no way “in which the matters that were discussed in the letters could lead to a claim that would go anywhere,” because a Brady claim would fail based on the inability to test the newly discovered physical evidence at the time of trial, while an actual innocence claim would be “quite far-fetched” in light of Clair’s statements that had been recorded by his girlfriend. Mr. Waxman responded that this “may very well be what was in his thought process, but we don’t know that,” prompting Justice Kennedy to say that “we know what was in his thought process” based on the lengthy opinion he filed deciding the habeas case. Justice Kagan then reprised Justice Alito’s question: if the district judge knows he is ready to issue his opinion and that “further investigation of this evidence is not going to change his mind,” why shouldn’t the judge reject the motion?
Mr. Waxman responded that the judge “could not know that based on the allegations” in the letters submitted. He emphasized that the letters pointed not to only new physical evidence that could now be DNA tested, but also to fingerprints at the crime scene that had not been tested against anyone, including other people suspected of a similar murder the night before in the same area. Justice Breyer suggested that what the court of appeals was trying to do was find some way to get the district judge “to focus on the question of whether the petition should be amended to assert this kind of claim about the new physical evidence.”
After a discussion prompted by Justice Scalia about how the “interests of justice” standard found in the statute governing non-capital cases could apply to capital cases where it was omitted, Justice Alito returned to the question of how other fingerprints could establish Clair’s innocence, noting that “it’s weak exculpatory evidence at best that there were unknown people in the house. It might have been the cable guy. Who knows who they were?” Mr. Waxman acknowledged that we are “all arguing in a vacuum here, because we don’t know what the fingerprint evidence,” if tested, would show, but he noted that the county coroner had determined that because this murder was extraordinarily similar to another murder in the neighborhood, including “very peculiar puncture injuries,” the two were likely committed by the same person. In his closing, he emphasized that to this day we don’t know whether the state has matched the fingerprints of the perpetrator of that other murder to the fingerprints found next to the victim in this case.
Rebuttal focused on precisely that point, with Justice Sotomayor asking if that testing has been done. Mr. Campbell said “no” and admitted that it would give the prosecutors pause if the fingerprints at the scene matched those of the person who committed the other murder, but he could not provide any reason why the testing was not done. With Justice Scalia’s help, he pointed to the strength of the government’s case against Clair, relying on Clair’s “implied admissions” in the recorded conversation with his girlfriend.
It is, of course, hazardous to predict outcomes from oral argument. But there can be little doubt that Mr. Waxman succeeded in focusing the Court’s attention on the particular facts of this case rather than on the broader question of the appropriate standard for replacing appointed counsel.
Edward A. Hartnett, Richard J. Hughes Professor for Constitutional and Public Law and Service at Seton Hall University School of Law, is a coauthor of Supreme Court Practice (aka Stern & Gressman).
In association with Bloomberg Law
Origin: SCOTUSblog
Yesterday, media coverage of the Court continued to focus largely on Monday’s decision to grant cert. in Arizona v. United States. James Vicini of Reuters discusses the implied preemption issue at the heart of the case, while Jason Riley of the Wall Street Journal reports on reactions to the grant from both ends of the ideological spectrum. And Rachel Glickhouse of Americas Society both summarizes the issues in the case and lists the other states whose own immigration laws could be affected by the Court’s eventual decision.
News coverage also centered on the Court’s announcement on Friday that it would review the Texas redistricting cases. Manny Fernandez of the New York Times reports on the announcement’s effects on the election process in Texas, just a few months before the scheduled March 6 primary, while Brian Chasnoff and Nolan Hicks of the San Antonio Express-News (via the Houston Chronicle‘s Texas on the Potomac blog) similarly describe the “political nightmare” created by the Court’s orders. At this blog, Lyle Denniston has a detailed look at the timeline of the Texas redistricting cases and the impact that the Court’s decisions will have on the coming Texas election cycle. Massimo Calabresi of Time Magazine also has coverage.
Briefly:
In association with Bloomberg Law
Source: SCOTUSblog
The political wars in Texas over new election districts for legislators at the state level and in Congress were suspended long enough to work out a partial schedule on candidates’ filing, while everyone awaits some clarity from the Suprem Court, perhaps early next year. In a scheduling order issued Wednesday, a three-judge U.S. District Court in San Antonio endorsed an agreement among all parties to give candidates some additional time to file their papers to run, and it also promised to reopen the filing period later when the situation is sorted out. Candidates will not be penalized for guessing wrong in their filing about what district they are seeking to represent.
One issue the order left open, however, was whether to change the primary date, now set for March 6 for all offices up for election next year, state and federal, including the Presidency. Presumably, the date — or dates — for primary voting can only be worked out after the Supreme Court decides the three cases before it in the redistricting controversy. The parties hold varying positions on whether the state should be ordered to hold one or two primary elections, in view of the legal fight over which are the proper and legal districting maps to govern elections for seats in the state house, the state senate, and the Texas delegation in the U.S. House of Representatives. The state’s GOP factions are themselves divided on the issue. Most of the members of the state’s present House of Representatives delegation, of both parties, urged the court this week to hold just one primary election.
Earlier, when Texas’s own lawyers took the dispute on to the Supreme Court, they asked the Justices to put off the primary only for the legislative districts, a move that would mean two separate primaries in the spring.. But the Justices made no mention of that in granting review of the cases and putting on hold temporarily the San Antonio court’s own “interim” maps for use during the 2012 election cycle.
The Justices have not yet spelled out on their own, and the lawyers for the state of Texas also have not yet spelled out, just which legal issues the Supreme Court will be deciding. The array of issues is expected be clarified when the state files its opening brief on the merits a week from today. It does not appear — at least at this point — that the Supreme Court will go ahead and lay out redistricting maps of its own for any of the legislative seats up for election in 2012, but it probably will be giving guidance on how such a map is to be put together by lower courts.
The Supreme Court’s intervention seemed likely to temporarily stall the processing of the lawsuits over new districts that are pending in two lower courts — the District Court in San Antonio, and a separate District Court in Washington, D.C. But neither of those courts chose to remain idle while awaiting final Supreme Court action on the controversy. The San Antonio court, with Wednesday’s order, gave candidates guidance on when and how they could file even while not knowing which districting maps ultimately will control. The Washington court has scheduled a trial to begin January 17 in that case.
One of the highly unusual things about the Texas redistricting fight is that, so far, no court at any level has issued a final ruling on whether the state legislative and congressional redistricting plans drawn up by the state legislature earlier this year are legal, or not. The legality of those maps — one for each of the chambers of the legislature in Austin, and a separate one for the U.S. House delegation — is at issue under two differents sections of the Voting Rights Act. The two District Courts have separate jurisdiction over those two VRA sections — Section 2, in San Antonio, and Section 5, in Washington.
The timing will be tight for all three courts, even if they are prepared ultimately to require major changes in the election scheduling for Texas in 2012. The Supreme Court is to hold oral argument on January 9 on its part in the controversy, the San Antonio court is to hold a meeting with lawyers in the case on January 12 to work on an election schedule, and the Washington court is to open the trial there on January 17. The Supreme Court would have to act with extraordinary speed, after its January 9 hearing, in order to have some guidance for the lower courts just a few days after that.
And all three of the courts will have to move with real speed, unless they opt to postpone the Texas primary elections from the presently scheduled March 6 date.
In the meantime, the San Antonio court’s scheduling order issued Wednesday kept open the candidate filing period (previously scheduled to end tomorrow) until 6 p.m. on Monday, December 19. It said it would reopen the fiign period “at a later date” — presumably, when some clarity on which districting maps are to be used has emerged. As the filing continues, candidates are to tell registering officials their “lawful residence” and spell out “the district he or she believes” they will be seeking to represent in the legislature or in Congress, to be amended during the later, reopened filing period — again, presuming some clarity has by then emerged.
In agreeing to this much, the combatants in the redistricting fight did not surrender the positions they had previously taken about the conduct of the upcoming election. When they came together on the schedule the District Court has now adopted, they also notified the three-judge panel on that court that they had not been able to agree on when county officials were to send out registration cards to voters. Resolving that issue, they said, might depend upon agreement on an election schedule, and, they said, “the political parties cannot reach agreement at this time” on such a schedule.
In association with Bloomberg Law
Original: SCOTUSblog
John Elwood reviews Monday’s relisted and held cases.
Slim pickings again this week. As forecast ad nauseum in recent weeks, the Court summarily reversed in one of the long-running trio of state-on-top habeas cases, Hardy v. Cross, 11-74, ending the total number of relists in that case at eight. It seems like a long time to wait for a seven-page, unanimous summary reversal, but I understand that the Court was having trouble getting the full record from the Seventh Circuit. The Court also granted cert. in the twice-relisted RadLAX Gateway Hotel v. Amalgamated Bank, 11-166, the Chapter 11 bankruptcy case discussed in more detail here, which basically presents the question whether secured creditors are guaranteed the right to “credit bid” in Chapter 11 auction sales.
The Clerk’s Office is a bit slower about updating the docket when there won’t be another Conference for several weeks, leaving us to speculate about which cases have been relisted and which are simply being held for another case. There is one likely new relist this week: Bluman v. Federal Election Commission, 11-275. The case involves a First Amendment challenge to the campaign finance law prohibiting any “foreign national” from making a contribution in connection with a federal, state, or local election.
The Court also appears to have relisted a second time in Ryburn v. Huff, 11-208, involving the emergency and exigent-circumstances exceptions to the Fourth Amendment’s warrant requirement. And the Court appears to have relisted once again in the two remaining state-on-top habeas cases that have been pending for months: Cash v. Maxwell, 10-1548 (apparently relisted eight times); and Wetzel v. Lambert, 11-38 (seven times).
There is also one likely new hold: Garcia v. Holder, 11-79, an immigration case that involves whether a state conviction for possession of an unspecified quantity of marijuana categorically constitutes a felony conviction under federal law (and therefore an “aggravated felony” under federal immigration law), even if the offense could fall within the federal misdemeanor exception for low-level drug offenses. It’s possible that the Court is holding the case for Moncrieffe v. Holder, 11-702, which appears to raise the same question. (Goldstein & Russell, P.C. represents Moncrieffe.) Also, the petitioner in Salem v. Holder, 11-206, argues that the two cases should be granted and considered together, although the Solicitor General responds that cert. should be denied in Salem even if it’s granted in Garcia.
If a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.
Bluman v. Federal Election Commission (likely relisted after the 12/9 Conference)
Docket: 11-275
Issues: Whether Congress violates the First Amendment by making it a crime for individuals who lawfully reside in the United States, but are neither U.S. citizens nor “permanent residents” under the immigration laws, to make independent expenditures or campaign contributions in connection with any federal, state, or local election; or whether, as the district court held, the ban satisfies strict scrutiny as a “piecemeal” attempt to reduce the “influence” on “how voters will cast their ballots” of aliens whom Congress may suspect of lacking “primary loyalty” to the nation.
Certiorari stage documents:
Ryburn v. Huff (relisted after the 12/2 and 12/9 Conferences)
Docket: 11-208
Issues: (1) Whether Brigham City v. Stuart merged the emergency doctrine and application of exigent circumstances for evaluating warrantless entry; (2) whether the Court should resolve the conflict between the Ninth Circuit (which answers “no”) and the Sixth and Tenth Circuits (which answer “yes”); (3) whether, on the facts of this case, involving a police investigation of a potential plan for a school shooting, officers were free to enter a student’s home without a warrant to prevent possible harm to themselves and others; and (4) whether, where the district court and one circuit judge concluded that the police conduct was arguably valid under another constitutional doctrine, the officers can be denied qualified immunity.
Certiorari stage documents:
Cash v. Maxwell (relisted after the 9/26, 10/7, 10/14, 11/4, 11/10, 11/22, 12/2, and 12/9 Conferences)
Docket: 10-1548
Issue(s): (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.
Certiorari stage documents:
Wetzel v. Lambert (relisted after the 9/26, 10/28, 11/4, 11/10, 11/22, 12/2, and 12/9 Conferences)
Docket: 11-38
Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?
Certiorari stage documents:
In association with Bloomberg Law
By: SCOTUSblog
Reporting on Monday’s orders and opinions, particularly the Court’s decision to grant cert. in Arizona v. United States, continued to keep Court watchers and commentators busy yesterday. In Arizona the Court will consider overturning the lower courts’ decisions blocking the controversial Arizona immigration law, S.B. 1070. Daniel Fisher of Forbes discusses the preemption issue at the heart of the case. The editorial boards at Bloomberg, USA Today, and the Los Angeles Times all weigh in on the grant, while at Politico Tim Mak surveys the blogosphere’s reactions to Justice Kagan’s recusal in the case. At Balkinization Ken Kersh responds to Adam Liptak’s article in the New York Times (included in yesterday’s round-up), which compares what is fast becoming a blockbuster Term this year to past noteworthy Terms. And finally, Lyle Denniston at the Huffington Post and Josh Gerstein at Politico both discuss the potential political fallout from the Court’s decisions this Term in the health care, S.B. 1070, and Texas redistricting cases – a subject that is also covered by a video clip posted at PBS NewsHour.
Monday’s other opinions and orders received continuing coverage as well. At this blog, Kevin Johnson analyzes the opinion in Judulang v. Holder, in which the Court unanimously held that the policy used by the Board of Immigration Appeals to determine whether a resident alien may seek relief from deportation under a repealed immigration law is “arbitrary and capricious” under the Administrative Procedure Act. At the ABA Journal, Mark Hansen discusses the cert. grant in the consolidated cases Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak, in which the Court will consider whether private citizens or groups may sue to enjoin the federal government from purchasing lands for use by Native American tribes. And Jessie Balmert at the Newark (Ohio) Advocate discusses Monday’s cert. denial in Ohio v. D.B., in which the state had asked the Court to review the constitutionality of the state’s statutory rape law as it applied to children under the age of thirteen.
Briefly:
In association with Bloomberg Law
Credit: SCOTUSblog
Today in our discussion of Sackett v. EPA and propery rights we ask: does the Constitution protect property rights on par with individual rights such as the right to equal protection and free speech? Should property rights be afforded equal status with other individual constitutional rights? Why or why not?
Some great comments from yesterday follow the jump.
Mountain States Legal Foundation filed an amicus brief demonstrating two straightforward reasons why judicial review of compliance orders is required: (1) judicial review is available under the Administrative Procedure Act (“APA”), because the Clean Water Act (“CWA”) does not “expressly” preclude review; (2) Congress did not intend to preclude judicial review of compliance orders that assert jurisdiction based on factually intensive analysis.
The Sacketts’ compliance order is final agency action, reviewable under the APA (5 U.S.C. § 704). The compliance order is premised on the Environmental Protection Agency (“EPA”) Administrator’s determination that the subject property falls under the jurisdiction of the CWA, and that the Act has been violated. The compliance order represents the consummation of the agency’s decisionmaking process with respect to these issues and violation of the compliance order carries with it independent legal consequences.
Because the CWA was enacted subsequent to the APA, section 12 of the APA (5 U.S.C. § 559) requires that any modification of the judicial review provisions of the APA must be “expressly” stated in the CWA. Here, the Ninth Circuit entirely ignored the controlling significance of the fact that the CWA does not expressly preclude immediate judicial review of compliance orders. Instead, the Ninth Circuit focused on “fairly discernable” inferences gleaned from the CWA. The Ninth Circuit’s approach violates the plain language of the APA and the Court’s precedents.
Moreover, the Ninth Circuit’s conclusion that the structure of the CWA, its objectives, its legislative history, and the nature of compliance orders all indicate that the CWA forecloses immediate judicial review is plainly in error. By analyzing the statutory scheme in a vacuum, the Ninth Circuit failed to recognize that the EPA has expanded its jurisdiction to such an extent that denying immediate judicial review of compliance orders in this context is inconsistent with Congressional intent in passing the CWA.
MSLF has been involved in CWA cases for decades. It has members throughout the United States that have a tangible interest in this case. Many of these members’ livelihoods depend on the continued development of minerals, oil and gas, timber, agriculture, livestock, and commercial and residential real estate. Many of these activities require the use of land and water resources that could be impacted by the regulatory authority asserted by EPA.
No good deed goes unpunished. If the EPA had gone directly to an enforcement proceeding and sought penalties dating back to when the Sacketts took their unlawful actions, we would hear them screaming about lack of fair notice. Some of the violations the EPA encounters will take years to resolve, with a study and monitoring period to determine the scope of problem and the appropriate means of remediating it. The notice is an opportunity to sit down with the EPA and work out a compliance schedule. If the Sacketts want to play hard ball and stand on their self-proclaimed property right to despoil the environment, they are welcome to do so; the enforcement proceeding will be brought and they will have full due process.
This is really the wrong question. The first question is what provisions of the Constitution authorize Congress to act. The Constitution (as written) does not grant Congress plenary power to regulate on any subject. Instead, the Constitution is a limited grant of power and Congress must be able to justify the exercise of its power by the provisions of Article I.
The Supreme Court has yet to rule on the precise scope of Congressional power to regulate intrastate activities for purely environmental concerns – although the Health Care litigation may give some hints. The Court has consistently refused to take up cases challenging Congress’ power to regulate noncommercial, intrastate species under the Endangered Species Act, for instance. The Court has, however, recognized that there are some limits to the Commerce Power under the Clean Water Act. In Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001), the Court rejected the “migratory bird rule” as a basis for the exercise of jurisdiction under the Clean Water Act. Under that rule, if a migratory bird could consider landing in a body of water, then that lake or pond would then be considered “navigable” for the purposes of the Clean Water Act no matter how isolated it might be from any interstate waterway. The government argued that the fact that migratory birds crossed state lines and people liked to watch those birds created a sufficient connection to interstate commerce for purposes of the Commerce Clause. The Court rejected that line of analysis noting that it raised “significant constitutional questions.”
If Congress has the authority to regulate, property owners still claim some protection from the regulation under the Takings Clause. Unfortunately, the Supreme Court has not interpreted the Takings Clause of the Fifth Amendment to grant significant protection to landowners if the regulation does not take all of the property. Instead, using the test devised in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), the property owner’s loss is balanced against the government’s purpose for the regulation.
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Source: SCOTUSblog
The petition of the day is:
Docket: 11-674
Issue(s): (1) Whether Neder v. United States permits a court conducting a harmless-error analysis in the context of an “alternative theory” case to consider only the strength of the government’s case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant’s favor; and (2) whether a court conducting a harmless-error analysis in the context of an “alternative theory” case may categorically exclude the defendant’s testimony in his own defense on the legally valid theory.
In association with Bloomberg Law
Source: SCOTUSblog
This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.
With the Term approaching the half-way point, we have taken another look at how the Court and the bar are moving through the cases that have been granted, argued, and decided during October Term 2011. The Court has docketed 69 cases for oral argument, heard argument in 36 of those, and released 4 summary reversals.
The Court’s workload: With 69 cases scheduled for oral argument, the Court is set to comfortably fill its typical oral argument schedule. In past years, the Court has decided 70-75 cases with a signed, merits opinion. The Court is expected to grant a handful of cases during the January sitting, some of which may be argued during the April sitting. Extended oral arguments in the health care cases could mean that the Court will hear a slightly lower number of cases during the March sitting than it does in most years.
The total number of hours of oral argument scheduled also signals that the Court is on its normal pace. The Court has currently scheduled 73.5 hours of oral argument; it typically schedules 75-80 total hours for a full Term. During OT08, OT09, and OT10, the Court heard 79, 77, and 78 hours of oral argument, respectively.
Circuit scorecard: Going into the Term, cases originating in the Ninth Circuit comprised a remarkable 42% of the Court’s docket. That percentage has been tempered slightly, but remains historically high; the Ninth Circuit now contributes only 33% of the merits docket, with 24 cases slated for review. The circuit with the next highest contribution to the docket is the Third Circuit, which has five cases up for review during OT11.
Opinions: The Court has released four summary reversals and two signed opinions in argued cases for a total of six merits opinions. That pace is consistent with recent years, and we expect the Court to begin releasing opinions at a quicker rate in January and February.
In recent years, we have seen around ten merits opinions released during the January and February sittings, and we are likely to see around the same number this year.
Advocates: The Court has now held oral arguments in 36 cases, roughly half the cases it will hear over the Term. During those arguments, the Court has heard from 75 different advocates on 93 occasions. Of the 93 appearances before the Court, 58 were made by lawyers based in the Washington, DC area, including 29 from lawyers in the Office of the Solicitor General. Of the 93 total appearances, 34 were made by advocates arguing two or more times. Solicitor General Donald Verilli has argued before the Court three times, once during each of the first three sittings of OT11.
Among lawyers in private practice, Latham & Watkins partner Gregory Garre leads the pack with three appearances before the Court. Supreme Court regulars Paul Clement, David Frederick, and Carter Phillips have each argued twice. Scott Nelson of the Public Citizen Litigation Group has also appeared twice, as has John Bursch, the Solicitor General of Michigan.
Experienced Supreme Court litigators will continue to appear in a high number of cases throughout the Term. For instance, Bancroft PLLC’s Paul Clement is expected to argue in three of the most high-profile cases of the year, Perez v. Potter, Arizona v. United States, and Florida v. Department of Health and Human Services, as well as in Christopher v. SmithKline Beecham Corp.
Stat Pack: We have also compiled our first Stat Pack of the term. You can find it here.
This edition features the following pages:
You can also find all of our regularly updated statistics by clicking on the “Statistics” button on the top bar or by clicking here.
In association with Bloomberg Law
Hat Tip To: SCOTUSblog