The Justices are scheduled to hold a private conference this morning. Any grants of certiorari could be announced this afternoon, while all other orders are expected to be released on Monday. To view our list of petitions to watch at today’s conference, click here.
Setting the stage for a key hearing next week on the process for handling court cases involving some 200 Guantanamo Bay detainees, the Justice Department on Wednesday night made a new plea to a federal judge to settle himself some “common issues” in those cases, or else allow the government to appeal to get those issues settled promptly by the D.C. Circuit Court.
This was the final filing before Senior U.S. District Judge Thomas F. Hogan holds a hearing next Wednesday at 3 p.m. to consider publicly the government’s sweeping challenge to Hogan’s month-old order setting up the arrangements for individual judges to follow in proceessing 114 individual habeas cases, many involving multiple detainees. The detainees’ lawyers have urged Judge Hogan either to leave those procedures as is, or else modify them in some ways to benefit detainees’ challenges.
The government’s reply brief can be found here; an attached exhibit is here. Hogan’s order scheduling the Wednesday hearing is here.
When detainees’ counsel filed their briefs on the procedures issue last week, many argued that Hogan, who has been acting as coordinating judge, should now pass the cases back to the judges before whom the habeas challenges were originally filed, so that they can go ahead and start making decisions. Many of those briefs also argued that the government has no right to appeal at this stage.
In reply, the government contended that Hogan’s “case management order” issued Nov. 6 raised a major issue for the government by imposing significant new burdens on information it must gather and pass on to detainees’ lawyers beyond data that the government was planning to use to justify continued detention of some of the captives.
Moreover, the reply contended, the order raises a series of questions that are common to all 114 cases over the standard for accepting government evidence, the use of “hearsay,” when hearings on evidence are to be held. And, the reply added, Judge Hogan will retain an important coordinating role in setting up schedules for the merits hearings by individual judges to make the cases move more efficiently toward decisions.
The government also used its reply to claim anew that Hogan’s order poses a major threat to the government’s security because its scope threatens disclosure of a wide array of classified data, and requires intelligence and military agencies already busy with “prosecution of two wars” to be diverted to gathering information for court cases.
What follows is Stanford student David Owens’ write-up of oral argument in Haywood v. Drown (07-10374). You can read more about the case on SCOTUSwiki.
Though briefed primarily as a case about whether Section 24 of New York Correction Law violates the Supremacy Clause, the oral argument revolved more heavily around an issue the Court has recently been grappling with: determining what the characteristics of “jurisdiction,” are. (Bowles v. Russell from 2007 is a good example.) Indicative of this struggle, Justice Alito’s at one point asked James Murtagh, counsel for Haywood, whether there is some sort of “Platonic ideal of jurisdiction versus non-jurisdiction.” Beyond the meta-jurisdictional debate, the Court, and Justice Kennedy in particular, homed in on the effect of New York’s law.
Murtagh began by emphasizing the limitations Section 24 imposes on 1983 claims-no punitive damages or attorney’s fees, no trial by jury, and a shortened notice of claim period-but was abruptly, and oddly, interrupted by Justice Kennedy, who posited that the New York scheme might actually benefit prisoners because allowing claims against the state ensures a solvent (”we hope,” Kennedy said to laughter) defendant.
No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. Oral arguments will resume on Monday.
The transcript of today’s argument in Philip Morris USA, Inc. v. Williams (07-1216) is now available here.
The transcript of today’s argument in Haywood v. Drown (07-10374) is now available here.
David Schwartz discusses Monday’s argument in Kansas v. Colorado.
One might think that an original jurisdiction case about expert witness fees arising from a water compact dispute might lack some of the flair that other Supreme Court cases display. Yet submerged within this rough lies a diamond of a constitutional issue, namely the contours of the Supreme Court’s original jurisdiction authority as granted by Article III. It was with this diamond that Kansas Attorney General Six opened in his oral arguments, claiming that the Constitution does not give Congress the power to make exceptions and regulations for the Court’s original jurisdiction, unlike in the Court’s appellate jurisdiction. The justices had two responses to this argument.
The first, and most immediate, was a response by Chief Justice Roberts, who wondered if the Court even had to reach the constitutional issue, given the statutory structure of the case. Indeed, many of the justices had questions on the differences between 28 U.S.C. § 1920, which
The federal government on Tuesday recommended the Court deny certiorari in Biomedical Patent Management Corp. v.
In advance of today’s argument in Haywood v. Drown (07-10374), Stanford student David Owens prepared this write-up of the case for SCOTUSwiki.
Pursuant to New York Correction Law § 24, New York courts lack jurisdiction under state or federal law to entertain civil actions seeking money damages against Department of Corrections (DOC) officers, which means these courts cannot entertain causes of action under 42 U.S.C. § 1983 against DOC officials. Today in No. 07-10374, Haywood v. Drown, the Court will consider whether this limitation violates the Supremacy Clause of the Constitution.
Background
This case stems from petitioner Keith Haywood’s two Section 1983 actions in New York courts against DOC employees. These actions followed two guilty verdicts in DOC administrative hearings stemming from incidents involving DOC officials—one related to an alleged physical altercation, and another for improper mail solicitation. Haywood filed his suits in the state supreme court (New York’s lowest trial court of general jurisdiction), where both sets of defendants moved to dismiss the complaints for lack of jurisdiction based on Section 24, which provides in pertinent part that: (1) “no civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department [of corrections], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of employment”; and (2) “any claim for damages arising out of . . . the scope of employment . . . shall be brought and maintained in the court of claims as a claim against the state.” The trial court agreed and dismissed the complaints.
After spending nearly a full hour Wednesday morning on the minutiae of jury instructions and Oregon state court precedents, the Supreme Court began thinking about a bolder approach: should it start over with a new round of briefing in the major new tobacco punitive damages case? That was the suggestion thrown out by Chief Justice John G. Roberts, Jr., as the Court was about to wind up its hearing on Philip Morris USA v. Williams (07-1216). The idea, perhaps, will be explored further when the Court meets in private on Friday to discuss what to do about the case.
Roberts’ suggestion came after three of his colleagues — Justice David H. Souter, doing so fervently, and Justices Anthony M. Kennedy and Stephen G. Breyer, somewhat obliquely — raised a concern that the Court needed a way to assure that when it makes a constitutional ruling, lower courts will not nullify it by coming up with a procedural escape hatch.
That is a concern that Philip Morris has been trying hard to stoke in challenging — for the third time in the Supreme Court — a $79.5 million punitive damages verdict in favor of a smoker’s widow, Mayola Williams. The tobacco company has argued that the Oregon Supreme Court “defied” a 2007 Supreme Court ruling telling the state tribunal to reconsider that verdict by applying a newly minted constitutional limitation. The state court did not do so, instead upholding the verdict afresh under a state procedural rule for jury instructions.
The state court’s response was the main focus of most of Wednesday’s argument. The Court, in granting review of Philip Morris’ new challenge last June, had agreed to hear only the validity of that response by the state court. The Court did not grant review on a second issue the company had put forth: whether the $79.5 million verdict was just too high, under Supreme Court constitutional limitations.
But the Chief Justice, reacting to the way the hearing unfolded in late stages on Wednesday, suggested that the Court might now grant review of the second issue, and order new briefing and argument on it (something that still could be accomplished this Term). That, Roberts said, would be one way the Court could avoid a ruling that might encourage state courts to defy constitutional rulings. In short, the Court would be addressing the constitutionality of the $79.5 million verdict on “excessiveness” grounds rather than on the refusal-to-obey issue that Philip Morris had also raised. (That, incidentally, also would have the virtue of the Court not having to say unpleasant things about the Oregon Supreme Court.)
Both lawyers in the case — Stephen M. Shapiro for Philip Morris, Robert S. Peck for Mrs. Williams — did not embrace the idea with enthusiasm, but both conceded that would be an alternative the Court could pursue. No member of the Court publicly opposed the idea, although Justice Ruth Bader Ginsburg — who had voted earlier to uphold the $79.5 million verdict — seemed a bit hesitant.
At 10 a.m., the Court will hear argument in Philip Morris USA, Inc. v. Williams (07-1216), on whether the Oregon Supreme Court improperly upheld a $79.5 million punitive damage upward under a state procedural rule. Steven Shapiro of Chicago will argue for the petitioner, and Robert Peck of Washington, D.C., will argue for the respondent.
At 11 a.m., the Court will hear argument in Haywood v. Drown (07-10374), on whether the Supremacy Clause bars states from stripping state courts of jurisdiction over certain federal constitutional claims. Jason Murtagh of Philadelphia will argue for the petitioner, and New York Solicitor General Barbara Underwood will argue for the respondent.
At 10 a.m. Wednesday, the Supreme Court will hear oral argument in Philip Morris USA, Inc., v. Williams (07-1216). Arguing for the tobacco company will be Stephen M. Shapiro of Mayer Brown in Chicago. Representing Mayola Williams will be Robert S. Peck of the Center for Constitutional Litigation in Washington, D.C. Filings in the case can be found on ScotusWIKI at this link.
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For most of a decade, Philip Morris USA, Inc., the cigarette company, has been feuding with the Oregon courts over a punitive damages award to the widow of a smoker – Mayola Williams. In the meantime, the verdict, with interest, has just about doubled. The Supreme Court has been drawn into the feud twice before; now, the company’s third appeal seeks to turn the fight into a contest between the Supreme Court and the Oregon Supreme Court.
Background
In 1993, the Supreme Court told the states that the Constitution does not allow juries to impose “grossly excessive” punishment for corporate wrongdoing. That was in the case of TXO Production Corp. v. Alliance Resources Corp. Since then, the Court has returned to the task of spelling out just what level of punitive damages verdict would be struck down as “excessive.” No one in corporate America has tested the issue more often in state and federal courts than the nation’s cigarette makers, who have been frequent targets of punishing verdicts. There is a special place in those litigation annals for Philip Morris USA v. Williams (now docketed in the Supreme Court under 07-1216). By the end of the current Court Term, there will be a third precedent bearing that title.
The transcript of today’s argument in Entergy Corp. v. EPA (07-588) is now available here.
The transcript of today’s argument in Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125) is now available here.
Analysis
It is it entirely possible that a Supreme Court case could be lost because the original lawsuit that started it all was not better prepared, or asked too little. Whether that has happened this time was the issue that lingered in the courtroom Tuesday as the Justices heard Fitzgerald, et al., v. Barnstable School Committee, et al. (07-1125) — an important case on the remedies available to school children and their parents if a pupil is sexually intimidated by another pupil.
The Court, or at least most of the Justices who spoke out, seemed to want to resolve the legal issue at stake: when Congress passed Title IX to deal with sex bias at federally funded schools (and colleges), did it intend to wipe out any constitutional claim of sex bias at those schools? That is the question the Court had granted and, as Justice Antonin Scalia suggested several times, why not decide it now?
The reason, of course, was that several members of the Court seemed troubled that the original complaint filed in federal court in Boston may have been too spare, or perhaps too opaque in what it was seeking. At one point, in fact, Justice Stephen G. Breyer wondered whether the Court should simply dismiss this case as one that should not have been granted “and wait until somebody does this again.”
The Supreme Court ruled Tuesday that a conviction based on jury instructions containing more than one theory of guilt, with one of those theories invalid, is to be judged on whether that was harmless error. That is not to be treated as a “structural error” that undermines the verdict itself, the Court concluded in Hedgpeth v. Pulido (07-544). The Court was unanimous in that part of the ruling, but the decision to send the case back to the Ninth Circuit Court for harmless error analysis drew the dissents of three Justices.
The Court’s opinion was unsigned (that is, it was “Per Curiam,” or “by the Court”), and was announced by Chief Justice John G. Roberts, Jr. It was the only decision of the day.
The Court has released an opinion in Hedgpeth v. Pulido (07-544), on whether, during habeas review, federal courts may determine erroneous instructions on which the jury may have relied to constitute “structural error” requiring reversal. The ruling below, which found for the habeas petitioner, is vacated and remanded. The per curiam opinion is available here. Justice Stevens issued a dissenting opinion, which was joined by Justices Souter and Ginsburg.
At 10 a.m., the Court may issue one or more opinions in pending cases. We will provide coverage of any developments.
Following the announcement of any rulings, the Court will hear argument in Entergy Corp. v. EPA (07-588) and two consolidated cases, on the regulation of cooling water intake structures under the Clean Water Act. Deputy Solicitor General Daryl Joseffer will argue for the EPA in support of the petitioners; Maureen Mahoney of Washington, D.C., will argue for the petitioner; and current Harvard Law School professor Richard Lazarus will argue for the respondent.
At 11 a.m., the Court will hear argument in Fitzgerald, et vir v. Barnstable School Committee, et al. (07-1125), on whether the passage of Title IX barred future constitutionally based gender discrimination claims against federally funded schools. Charles Rothfeld of Washington, D.C., will argue for the petitioner, and Kay Hodge of Boston will argue for the respondent.
We will post links to transcripts of the arguments as soon as they are available.
Today we’re filing our merits reply brief in Cone v. Bell, which I’ll argue next Tuesday. The case involves a question of procedural default on habeas corpus and a claim under Brady v. Maryland. The other briefs in the case — including the State’s merits brief — are available over at SCOTUSwiki. The Stanford Law School clinic team members are Ruthie Zemel, Jessica Oats, and David Muraskin. Our co-counsel Paul Bottei also worked closely with us.
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