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The petition of the day is:

Abdur’Rahman v. Colson

Note: Goldstein & Russell, P.C. represents the petitioner in this case.
Docket: 11-1215
Issue(s): (1) When is “cumulative error” a legally permitted basis for relief on federal habeas corpus; (2) is a prosecutor’s suppression of material exculpatory evidence excused whenever the defendant was aware of the facts contained therein, notwithstanding that the suppression prevented the defense from presenting the evidence of those facts to the jury; and (3) is defense counsel’s failure to investigate evidence that has some negative characteristics categorically immune from a claim of ineffective assistance of counsel?

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Habeas Corpus Scholars
• Amicus brief of Former Prosecutors
• Amicus brief of Former Federal Judges
• Amicus brief of National Association of Social Workers et al.
• Reply for petitioner

In association with Bloomberg Law

John Elwood reviews Monday’s relisted and held cases.

Monday was a big day.  Facebook raised the price range of its IPO to $34-38 a share, up from $28-35; in a related story, CEO Mark Zuckerberg announced that he was buying Greece, Spain and Portugal with change he found under his sofa cushions, thus resolving the Euro Zone crisis; and, in somewhat less momentous news, the Supreme Court loosed a slew of new relists.

The biggest category of newish relists involves a group of people that is not altogether pleased to be present in this jurisdiction: Guantanamo detainees challenging their detention.  The Court has shifted five detainee cases over to the May 17 Conference: Al-Bihani v. Obama, 10-1383; Almerfedi v. Obama, 11-683; Uthman v. Obama, 11-413; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700.  Readers with particularly debilitating OCD and too much time on their hands will recall that in January, the Court held Al-Bihani and Uthman, apparently waiting for the other three cases to catch up.  This relist may represent more of the same.  It’s complete speculation, of course – I hope you’d know better than to expect more of me – but perhaps the Court chucked them over to the next Conference so it could consider them alongside Latif v. Obama, 11-1027, a case that is already on for Conference on May 17.  In Latif, a D.C. Circuit majority, in a scant fifty-three pages, held that the district court had erred in granting Latif habeas relief, concluding that a presumption of regularity attends official acts (including statements in an intelligence report), and the district court should have viewed the “totality” of the evidence rather than considering it in an “atomized” way; Judge Tatel filed a similarly abbreviated forty-five-page dissent.  Benjamin Wittes believes that “Latif offers the detainee bar its best opportunity yet to get the D.C. Circuit’s post-Boumediene[] work in front of the [J]ustices,” and Lyle likewise says the case “may be their best chance.”  A common issue among detainee cases is the legal test for reviewing determinations whether a detainee was part of al Qaeda, which at least implicitly implicates Latif.  Al Kandari v. Obama, 11-1054, is also on for the May 17 Conference, and appears to involve whether the district court may rely on hearsay evidence like intelligence reports in adjudicating a habeas petition.  There are still other cases in the pipeline, too, but Latif and perhaps Al Kandari look like the likeliest explanation for the relists at the moment.

There were also two non-Gitmo relists.  Granted, I am emotionally stunted and my priorities are all wrong, but they strike me as unusually interesting and important.  Comcast Corporation v. Behrend, 11-864, which is a follow-on to Wal-Mart v. Dukes, will be relisted; it presents the question whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).  The case, which involves a class of more than two million current and former Comcast subscribers, seeks further clarity on exactly how much the district court should delve into the merits.  Wal-Mart’s statement that district courts must undertake “a rigorous analysis[] that the prerequisites of Rule 23(a) have been satisfied,” and that that analysis “[f]requently . . . will entail some overlap with the merits of the plaintiff’s underlying claim,” was one of the most significant (and to the defense bar, tantalizing) aspects of that opinion.

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments.  The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” – and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case.  (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” – the four Almendarez-Torres dissenters plus himself – “now recognizes that Almendarez-Torres was wrongly decided.”)  I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres – despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here.  As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement.  But Staunton did not receive that protection.  Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response a response.  The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.

Three of the relists from our last installment are back again this week:  First, Coleman, Superintendent v. Johnson, 11-1053, a state-on-top habeas case out of the Third Circuit in which the state basically alleges that the federal courts failed to credit evidence favorable to the prosecution and to apply the presumption of correctness required by 28 U.S.C. § 2254(e)(1).  The Court has requested the record, so clearly, it’s getting serious.  Second, Parker, Warden v. Matthews, 11-845, another state-on-top habeas case, this time out of the Sixth Circuit, in which Kentucky argues that the Sixth Circuit failed to give sufficient deference to Kentucky state courts’ interpretation of Kentucky law.  The case has been scheduled for three Conferences since the Court called for and received the record, so it seems likely that some sort of opinion – either a summary reversal or a dissent from the denial of cert. – is being drafted right now.  And third is Fairey v. Tucker, Secretary, 11-7185, yet another habeas case involving a collateral attack on the circumstances of the petitioner’s trial and the South Carolina district court’s conclusion that it lacks in personam jurisdiction over the Secretary of Florida’s Department of Corrections; the Court called for the record on April 16, but it still hasn’t arrived.  One relist did not make it back this week: the Court denied without comment in Adams v. Tyson Foods, Inc., 11-9054, involving a petitioner who claims to be a Tyson Foods whistleblower claiming a host of constitutional violations relating to his alleged presence on a terrorist watch list.

One lonely new hold: Coleman v. United States, 11-9604, which almost certainly involves our favorite hold fodder, Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721.

That’s all for this week.  The Court will be back next week with more.  See you next time.

Thanks to Conor McEvily for compiling the cases discussed in this update.

Comcast v. Behrend (relisted after the 5/10 Conference)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

Staunton v. California (relisted after the 5/10 Conference)

Docket: 11-8851

Issue(s):  Whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments

Certiorari stage documents

• Opinion below (Cal. Ct. App.)
• Petition for certiorari

Coleman, Superintendent v. Johnson (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-1053

Issue(s):  (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution should be reversed; (3) whether the court of appeals’ determinations regarding witness credibility should be reversed; (4) whether the court of appeals’ holding, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed; and (5) whether the court of appeals failed to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l).

Certiorari stage documents

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition

Parker, Warden v. Matthews (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-845

Issue(s):  Whether the Sixth Circuit erred in finding that the Kentucky courts unreasonably applied clearly established federal law and granting respondent habeas relief.

Certiorari stage documents

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition

 Fairey v. Tucker, Secretary (relisted after the 4/27 and 5/10 Conferences)

Docket: 11-7185

Issue(s):  Did the Court of Appeals err in dismissing the Petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

• Opinion below (4th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply brief

In association with Bloomberg Law

The petition of the day is:

Hepting v. AT&T Corp.

Docket: 11-1200
Issue(s): (1) In the case of a federal statutory claim, whether Congress may grant the Attorney General the power to choose which of two inconsistent statutory standards should govern the claim; (2) in the case of a state-law claim, whether Congress may grant the Attorney General the power to choose whether the state law governing the claim should be preempted by federal law; (3) in the case of a federal constitutional claim, whether Congress may grant the Attorney General the power to choose whether to exclude the claim from the jurisdiction of the federal and state courts; and (4) even if Congress may grant the Attorney General the powers described in Questions One, Two, and Three, whether Congress provided an intelligible principle limiting the Executive’s discretion in exercising those powers.

Certiorari stage documents:

• Opinion below (9th Cir.)
• Petition for certiorari

In association with Bloomberg Law

Analysis

For most of the past four years, the volunteer lawyers who are helping Guantanamo Bay detainees use their constitutional right of access to U.S. courts have faced a dilemma: they assumed that, at some point, the Supreme Court would again get interested in those cases, but they had no idea what it would take to get the Justices involved again.  They persuaded the Court just once in those years to grant a case — a highly unusual one – but that case went away without any new guidance on where the Court stands.

Last Term, the lawyers failed every time as they tried repeatedly to fathom what might catch the Justices’ attention; they had what they regarded as solid issues, but no case advanced.  This Term, they are trying again — seven more times, so far.   But, among those seven, they have Latif v. Obama, and that may be their best chance.  Indeed, if that one fails, too, it is hard to imagine the Court taking any Guantanamo captive’s case.

At the Justices’ private Conference on Thursday, they are scheduled, according to the electronic docket, to have a look at all seven of the new Guantanamo cases.   That is not a coincidence.  The lawyers have been urging the Court staff to schedule the cases together, and specifically asked that some of the cases be held up for examination until the Latif case, too, was ready.  Now the filings in the seven cases are all in (including an extra brief in one of the cases pointing out just how important the Latif case is), and presumably the Justices are poised to act.   The earliest an announcement of any action is likely to come is next Monday morning.

It is important to note, though, that the Obama Administration has urged the Court to deny review in every one of the new cases; it says there is no issue in any case that is worth the Court’s time.  Given the historic fact that the Court has a good deal of trust for the government’s judgment, it would appear that the detainees’ lawyers are operating at something of a disadvantage as they try to convince the Court that it needs to provide new guidance on the law of detention.  The military prison at Guantanamo Bay has been open for more than ten years, and the law of detention is still a work in progress.

But one facet of the developing law of detention, and it has added a special urgency to the work of the Guantanamo lawyers, is that the D.C. Circuit Court has not approved a single order by a District judge clearing the way for a detainee to leave Guantanamo.  Several score have gone home, but none as a result of a Circuit Court decision.   The question that detainees’ lawyers keep trying to get the Supreme Court to answer is: did you mean it when you said that the Guantanamo prisoners should have a chance at winning actual release? That is an open question, the lawyers have argued, because the Circuit Court has not allowed that to happen in any case actually appealed to that court by the government.

The last time the Court as a whole said anything of real consequence about Guantanamo (aside from saying that government offers of release for five detainees made it unnecessary to decide the one case that had been granted) was on June 12, 2008.   That day, the Court issued a historic ruling in Boumediene v. Bush, declaring for the first time that prisoners held by the U.S. military outside of the Nation’s borders had a constitutional right to go into a U.S. court, using the ancient writ of habeas corpus, to force the government to justify holding them captive even while declining to pursue criminal terrorism charges against most of them.

Boumediene, actually, had two main parts to it: establishing the habeas right for those at Guantanamo, but explicitly giving District Court judges in Washington a wide degree of discretion to work out the details on how to process those challenges.  The District judges, applying a format worked out in November 2008 by a coordinating judge, began processing the cases, and in the majority of cases, they found that detention was not justified.  The District judges applied a strong dose of skepticism to government evidence of terrorism links, especially evidence submitted in intelligence reports, sometimes assembled under chaotic conditions overseas.

It is likely, though, that neither the Justices themselves nor the District judges in Washington (where all Guantanamo cases are filed) anticipated one development that emerged after Boumediene had been decided.  It actually came out of a second detention case decided by the Justices on that same day in June 2008 – Munaf v. Geren, about two U.S. citizens the U.S. military was holding in Iraq pending criminal trials in that country, and having nothing directly to do with Guantanamo.  But, Munaf v. Geren, as transformed by D.C. Circuit Court, would become a stern mandate to the District judges not to “second-guess” the military’s judgment about the need to detain prisoners at Guantanamo and anywhere else.

In the summer of 2010, three Justices — Ruth Bader Ginsburg, joined by Stephen G. Breyer and Sonia Sotomayor — said publicly that the Court should at some point sort out the impact that Munaf had had on the law of detention, and at that point, lawyers for the Guantanamo prisoners thought they had a clue of how to reopen post-Boumediene issues in the Supreme Court.  But that did not happen, and there was no explanation why it did not happen.  Munaf-related sequels were filed by the Guantanamo lawyers, but none got a hearing.

The D.C. Circuit steadily tightened the limits on the District Court judges, and in the last dozen such cases, the detainees’ challenges have lost in 11.  The only case among those 12 in which a detainee won was the case of Latif v. Obama, involving a Yemeni national, Adnan Farhan Abdul Latif, who was captured in Pakistan within three months after the terrorist attacks on the U.S. on September 11, 2011.  But Latif’s success in the District Court did not last; the D.C. Circuit overturned the judge in that case, too.

There are totally contradictory stories about Latif: his lawyers insist that he went to Afghanistan and then to Pakistan seeking medical treatment for a head injury, but the government insists that he went there along a path followed by terrorist recruits, and that, when he got there, he received military training and joined the Taliban forces and went to war against the Afghan Northern Alliance.  The Circuit Court concluded that he was “part of” the Al-Qaeda terrorist network — the current legal standard for detention.

The primary evidence the government used against Latif was an intelligence report that was based, in part, on interviews that intelligence or military agents had with him and others, overseas and perhaps also at Guantanamo Bay.

On the basis of the conflicting accounts of Latif’s travels and activities in Afghanistan and Pakistan, his case does not stand out as unusual; such factual conflicts exist in all of the cases.   But, as his case developed in the D.C. Circuit and now in the filings in the Supreme Court, here is why it has taken on a status that does not seem to be fully matched by other pending cases:

* It resulted in the creation, not previously found in any prior Guantanamo case, of a “presumption of regularity” and accuracy for government intelligence reports, no matter the conditions under which they were gathered.  It is a legal rule of thumb that makes the government’s reasons for detention significantly weightier, and puts a heavy burden on the detainee’s lawyers to disprove that evidence.   Up to that decision, the District judges had routinely refused to grant the government such a “presumption.”

* A group of intelligence officers and retired federal judges filed amicus briefs with the Supreme Court questioning the reliability of those intelligence reports and the fairness of their use.

* The case produced something that is quite rare in Guantanamo cases in the D.C. Circuit — a vigorous, even angry dissent.  It was filed by Circuit Judge David S. Tatel,  who argued that the D.C. Circuit “has moved the goal posts” and had “called the game in the government’s favor.”

* The main opinion in the D.C. Circuit brought a scathing denunciation of the Supreme Court’s Boumediene decision by Circuit Judge Janice Rogers Brown, who said that the ruling was based upon “airy suppositions” and who suggested that the signal it had sent to the government in the “war on terrorism” was to “take no prisoners.”

* It has drawn the criticism of even outside observers who have generally supported what the D.C. Circuit had been doing in developing the law of detention.

* It appears — at least so far — to be a case in which Justice Elena Kagan can take part; that is not true of all Guantanamo cases, because of her prior role in the Justice Department as U.S. Solicitor General.

* And, to repeat, it is the one case in the last dozen to go through the District Courts to result in a win for a detainee, only to have that, too, set aside in the Circuit Court.

The Latif petition raises three issues.  One has to do with the validity of the “presumption of regularity” for government intelligence reports.  One has to do with whether the D.C. Circuit wrongly took on the role assigned to the District judge to sort out the facts.  (If the Circuit Court had accepted the District judge’s factual findings, all sides agree that Latif’s detention would be invalid.  It was the first Guantanamo case to reach the Circuit Court that had that characteristic about it.)

But the third issue raised is an especially provocative question that, in fact, is also included in a number of the other new Guantanamo cases.  That question reads: “Whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.”

Implicit in that question are these other questions: Did the Court actually expect in 2008 that a Guantanamo detainee would win release over the government’s objection? What did the Court mean when it said habeas review in Guantanamo cases should be “meaningful”?  How content are the Justices with the handiwork of the D.C. Circuit in defining the law of detention since Boumediene?  Just where would the Justices start if they wanted to examine the Circuit Court’s results? Does the Court see any need to defend itself against the criticism that Circuit judges have aimed, in escalating terms, at Boumediene?

Or, perhaps finally, does the Court have any desire, on any score, to return to a role in monitoring the fate of the 169 foreign nationals who remain at Guantanamo?  What would be lost, to the Court as an institution, if it opted now just to leave Guantanamo to the political branches and the D.C. Circuit?

In association with Bloomberg Law

At its May 17, 2012 Conference, the Court will consider such issues as the presumption of accuracy of intelligence reports in Guantanamo habeas decisions, standing to challenge the Foreign Intelligence Surveillance Act, the standard of federal habeas review for state court factual determinations, and the burden of proof for affirmative defenses in a criminal case.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Latif v. Obama

Docket: 11-1027
Issue(s): (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Certiorari stage documents:

• Opinion below (D.C. Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Retired Federal Judges
• Amicus brief of Former Intelligence Professionals et al.
• Reply of petitioner

Clapper v. Amnesty International USA

Docket: 11-1025
Issue(s): Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.

Certiorari stage documents:

• Opinion below (2d Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of William Barr et al.
• Reply of petitioners

Howes v. Walker

Docket: 11-1011
Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents:

• Opinion below (6th Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner (forthcoming)

Kerestes v. Pabon

Docket: 11-958
Issue(s): (1) Whether limited knowledge of English qualifies as an "extraordinary circumstance" justifying equitable tolling of the habeas corpus filing deadline; and (2) whether, in evaluating requests for certificates of appealability under the habeas corpus statute, federal courts of appeals may disregard the deference requirement and instead apply a de novo standard?

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioner

Cases involving lawyers from Goldstein & Russell (listed without regard to the likelihood of being granted):

Pickering v. Colorado

Note: Goldstein & Russell, P.C. serves as counsel to the petitioner this case.
Docket: 11-870
Issue(s): When the accused in a criminal case properly raises a defense that negates an element of the charged crime, does the Due Process Clause require the prosecution to disprove that defense?

Certiorari stage documents:

• Opinion below (Colo. S. Ct.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of National Association of Criminal Defense Lawyers
• Amicus brief of Criminal Law Professors
• Reply of petitioner

________________________________________________________________

The following petitions have been re-listed for the conference of May 17.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Coleman v. Johnson

Docket: 11-1053
Issue(s): (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed given that it conflicts with this Court’s holdings that it is not the province of a federal habeas court to examine state court application of state law and that only noncompliance with clearly-established federal law will render a state’s criminal judgment susceptible to collateral attack in federal court; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution in connection with its Jackson v. Virginia analysis due to its subjective view that those inferences do not “more likely than not flow from” the trial evidence should be reversed given that it conflicts with this Court's holdings that a federal habeas court conducting a Jackson review must view the evidence in the light most favorable to the prosecution, presume that the jury resolved any conflicting factual inferences in favor of the prosecution, and defer to that resolution; (3) whether the court of appeals’ determination, which patently relies upon its own subjective conclusions regarding witness credibility and the proper weight to be accorded the record evidence, should be reversed given that it contravenes this Court’s repeated admonitions that a federal habeas court conducting a Jackson review is strictly forbidden from substituting its judgment for that of the jury on weight and credibility issues; (4) whether the court of appeals’ determination, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed given this Court’s holdings that a federal habeas court engaged in a Jackson analysis must apply the substantive elements of the criminal offense as defined by state law; and (5) whether the court of appeals’ de facto finding that the state courts’ conviction was based on an unreasonable determination of the facts in light of the evidence presented should be reversed given that it fails to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l) and therefore conflicts with this Court’s holdings that the presumption of correctness afforded state court factual findings cannot be overridden absent clear and convincing contrary evidence.

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition

Comcast v. Behrend

Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

In association with Bloomberg Law

In a significant — though not necessarily final — setback for military contractors sued in U.S. courts for allegedly torturing Iraqis at the infamous Abu Ghraib military prison in Iraq, a divided Fourth Circuit Court refused on Friday to rule immediately on the companies’ claim that they have legal immunity to the damages lawsuits.  By a vote of 11-3, the en banc Circuit Court allowed two federal judges — one in Virginia, one in Maryland — to gather more information before ruling on the immunity claims.

The dissenters argued that “only the Supreme Court can now fix our wayward course.” An appeal to the Justices seems inevitable.  The dissenters complained in exceedingly strong language that the majority, by allowing the lawsuits to go perhaps many steps further, was permitting the courts to intrude deeply into the U.S. military’s conduct of activities in a war zone.  (The 114-page decision, including a majority opinion, two brief concurring opinions, and two lengthy dissenting opinions, can be read here.)

The cases, if immunity is denied and that denial withstands future appeals, will turn on whether two companies hired by the U.S. military to work in Iraq had engaged in torture and physical assault as they sought to gather intelligence by interrogating Iraqis imprisoned as potential insurgents against American, Iraqi, and allied forces during the war there.  The claims of torture recall the globally publicized photographs showing serious abuses of prisoners at the Abu Ghraib site near Baghdad.

One of the lawsuits, pursued in federal court in Alexandria, Va., is aimed at CACI International, a Virginia company, and was filed by four Iraqis who had been held at the prison.  That lawsuit claims violations of the Alien Tort Statute and Virginia state tort law.  The other lawsuit, filed in federal court in Greenbelt, Md., is aimed at L-3 Services, Inc. (formerly Titan Corp.), also based in Virginia, plus one of its Maryland employees, and was filed by 72 Iraqis who had been held at Abu Ghraib.  That lawsuit makes similar legal claims.  Both seek money damages along with punitive money damages for the alleged injuries they claim they suffered at the prison.  The two companies were hired to provide Arabic language translators, and to take over interrogation of prisoners suspected of insurgency.

The two District judges handling the cases refused to dismiss the lawsuits in response to the two companies’ arguments that they had either complete or qualified immunity, based on various theories, including claims that those who work for the military in a war zone cannot be sued in their own country by foreigners who were nationals of the foreign land — a “battlefield” immunity — and that they have a form of legal immunity derived from the military’s immunity to lawsuits for official war zone actions.   A divided three-judge panel of the Fourth Circuit ruled last September that the companies had legal immunity to the claims, and ordered the lawsuits dismissed.  That is the result the en banc court overturned Friday.

The majority opinion, written by Circuit Judge Robert B. King, did not settle any issues in the case, other than the question of whether the Circuit Court had jurisdiction at this stage to hear the two companies’ pre-trial appeal based on their immunity claims.  The Circuit Court concluded that the appeals did not come within what it said was a narrow exception to the usual rule that there must be a final decision in a trial court on a decisive issue before an appeal can be pursued ahead of the actual trial.

It was just too early in the proceedings, and too little is known, the majority concluded, for the two District judges to decide the immunity question.  (The two judges had gone only so far as to deny motions to dismiss, but had not resolved the ultimate question of immunity for either firm.  The companies thus still could win on that point   Deciding the immunity issue, Judge King’s opinion said, involves such issues as whether the military contractors were actually integrated into the operations of the military coalition led by U.S. forces, whether they had obeyed their instructions — including a duty to avoid torture, and what level of immunity — if any — they can claim.  The majority insisted that allowing lawyers for the Iraqis to seek further information, through”discovery” orders, would not require the courts to probe into actual military operations, or to summon military officers to testify in court on their relationships with CACI and L-3.

Many of the companies’ legal arguments, the majority said, must be treated as defenses to liability, not as issues of immunity to being sued altogether.  The majority cautioned against playing “word games” with the notion that an entity has a right not to be tried at all for claimed misconduct.  Virtually every right that could be protected by dismissing a case before the trial even begins could be loosely described as a right not to be tried, the majority commented.

The King opinion lacked any of the soaring rhetoric of the dissents; it was, in fact, a workmanlike but dry analysis of the “collateral order” doctrine — the basis for pre-trial appeals in federal courts — and of the history of claims of immunity under various Supreme Court and Fourth Circuit precedents.

The majority opinion was supported in full by eight of the 14 judges taking part on the en banc court, although two members of the majority said in a separate opinion that the District judges handling the cases should proceed with caution and be sensitive to the companies’ claims of immunity, as well as their argument that any dispute over their performance under their contracts was a matter for resolution with the government as the overseer of their contracts.   Those two judges said the immunity arguments were “far from lacking in force,” especially in light of a Supreme Court decision last month (Filarsky v. Delia, upholding legal immunity for a lawyer working for a city government in California).

Circuit Judges J. Harvie Wilkinson III and Paul V. Niemeyer each wrote a dissenting opinion, with each joining the other’s opinion, and with Circuit Judge Dennis W. Shedd joining both opinions.

Judge Wilkinson argued that, “thanks to the majority’s efforts, contractors that were previously subject to the control of the executive branch have new judicial masters.  But when unelected judges render contestable decisions about military policy in the course of applying tort law to contractors, the public will be unable to remove them from their posts. This flies in the face of our constitutional tradition of ensuring some popular control over the prosecution of a war.”

He argued that the U.S. military had hired CACI and L-3 because the forces were seriously short of capable Arabic translators, and needed help from private firms.  From here on, he warned, both the government will be wary of hiring contractors to perform battlefield functions, and private companies will be reluctant to accept such assignments, because no one will know when a lawsuit will arise over the inevitable missteps that occur in the heat of combat.

Judge Niemeyer’s dissent argued that it was already clear, based simply on what the Iraqis’ lawsuits had claimed, that the companies were legally immune to those lawsuits.  He argued that the cases should have been dismissed immediately by the District judges, because the claims at issue involved issues that the Constitution assigns to Congress and to the President as Commander-in-Chief.   He agreed that the Circuit Court had no jurisdiction to hear the appeals, but only because the subject matter of the lawsuits was constitutionally entrusted to the political branches.  So, Niemeyer said, the District Court also lacked any jurisdiction to proceed.

It is unclear how much time is likely to elapse before the two District judges are able again to rule on immunity issues, but Judge Wilkinson predicted that the dispute would go on for years.

Now that the Fourth Circuit has issued its decision through its full membership (with one new judge not participating), the next place for the companies to take the dispute is the Supreme Court.

Although the Executive Branch clearly has an interest in the liability of military contractors, the Obama Administration — invited into the case by the Circuit Court — agreed with the result that emerged Friday: that is, that the Circuit Court lacked jurisdiction at this point to decide the immunity issues.  The government brief in the case said that it was not yet prepared to argue that the contractors had shown that they had a right to appeal immediately.  Presumably, if the case goes to the Supreme Court, the government may wind up having a role there.

 

In association with Bloomberg Law

The petition of the day is:

R. J. Reynolds Tobacco Co. v. Star Scientific, Inc.

Docket: 11-1182
Issue(s): Whether the Federal Circuit’s “insolubly ambiguous/amenable-to-construction” test for patent definiteness, which upholds patents whose construed claims fail to inform a skilled artisan of the outer limits of the claimed monopoly, faithfully implements 35 U.S.C. § 112 ¶ 2 -- which requires that a patent application include claims “particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention” -- and decisions of this Court interpreting the provision.

Certiorari stage documents:

• Opinion below (Fed. Cir.)
• Petition for certiorari
• Amicus brief of Washington Legal Foundation
• Amicus brief of Google, Inc., Facebook, Inc., and Hewlett Packard Co.
• Amicus brief of Intel Corp., EMC Corp., and Cisco Systems, Inc.

In association with Bloomberg Law

Commentary

It was legitimate headline news, of course, when President Obama on Wednesday disclosed for the first time that he personally now favors a legal right for same-sex couples to get married.   Because of its symbolic importance, that revelation probably will contribute importantly to the spreading national dialogue on the issue.  But what the President said should not be misunderstood: the full text of his remarks during an ABC-TV interview suggests strongly that he is not committed to making same-sex marriage a right protected by the Constitution.  That view of the fine print takes some explaining.

Taking what he said all together, the most that can be concluded is that he hopes states will create such a right, that he is pleased when a state grants such a right – he praised New York for doing so, and he would vote for it if he were in a state legislature — but he is not yet prepared to join in a challenge to states that refuse to do so.

What the President said is far more nuanced than most of the popular media treatment suggested in its coverage of his interview with ABC’s Robin Roberts.

What the stories emphasized was that the President, following an apparently evolving course of thinking, had now said flatly that he was in favor of same-sex marriage.   Here is how he put that view, in its simplest form, on Wednesday: ”I think same-sex couples should be able to get married.”  And, of course, in order to actually get married, those couples would have to be granted that right, so, in a sense, the President was embracing gay marriage as a legal right.

But there was more, much more, as the full transcript shows clearly.  He said, for example, that this was a matter of law, and he indicated he meant state law.  He said that the issue had to be viewed “from the perspective of the law and perspective of the state.”

He also said that he had not wanted “to nationalize this issue” and he spoke of how the states are “working through this issue…all across the country,” and he said “I think that’s a healthy process and a healthy debate. ”  He then added: “And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”  He noted that it was a question of “civil marriages and civil law” — that could only mean state law.

A part of his opposition to making this a national issue, the President also indicated, was that his Republican opponent this election year– he referred to Mitt Romney without mentioning his name — “wants to re-federalize this issue and institute a constitutional amendment that would prohibit gay marriage.”  Mr. Obama said it was “a mistake to try to make what has traditionally been a state issue into a national issue.”

The President more than once made a point of his Administration’s decision not to continue to defend in court the Defense of Marriage Act, a 1996 federal law that says that, whenever any federal law refers to marriage, it meant only the marriage of a man and a woman.   That law has now written that definition into a whole host of federal laws, numbering more than 1,000.

Last year, his Justice Department notified the federal courts around the country that the government would no longer defend DOMA, as it is popularly called.  The President said Wednesday he agreed with that and, indeed, “I helped to prompt that.”   And he noted that the government is now arguing that DOMA violates the Constitution’s Equal Protection Clause.

But he also said, tellingly, that one of his reasons for opposing DOMA now is that it “tried to federalize what [has] historically been state law.”

Being against DOMA on “equal protection” grounds does not necessarily mean that the President favors applying the “equal protection” clause to state laws against same-sex marriage.

Why not?  It is time, then, to turn to “Proposition 8.”   That is the state of California’s voter-approved ban on same-sex marriage in that state.  It has been ruled unconstitutional under the Equal Protection Clause by a federal judge in San Francisco and a three-judge panel of the Ninth Circuit Court, the federal appeals court for many western states.   The panel ruling is now on hold pending a decision whether that ruling will be reconsidered by the en banc Ninth Circuit Court.

The federal government, though, has taken no part in the challenge to Proposition 8.  There was no bar to its doing so; a wide variety of other groups that had an interest in the marriage issue did join in the case as friends-of-the-court.   The federal government could have done so, too, with an entirely credible argument that it, too, had an interest in the issue, because a ruling that the “equal protection” guarantee forbids discrimination against gays in granting the right to marry would make a strong argument against DOMA, too — even though Proposition 8 is attacked under that guarantee in the Fourteenth Amendment, and DOMA is being challenged under a similar guarantee in the Fifth Amendment.

So, doesn’t it follow, logically, that the President would want to join in the challenge to Proposition 8?  And if that case gets to the Supreme Court, and President Obama is still in office then, why wouldn’t the government join in urging the Justices to take the case and strike down Proposition 8?

Return, then, to the ABC-TV interview Wednesday.   Correspondent Roberts said to the President: “I know you were saying…about it being on the local level and the state level.  But as president of the United States, and this is a game-changer for many people, to hear the president of the United States for the first time say that personally he has no objection to same-sex marriage.  Are there some actions that you can take as president?”

And then (with italics added here to emphasize it) she asked: “Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?”

Here is his answer: “Well, I — you know, my Justice Department has already — said that it is not gonna defend — the Defense Against Marriage Act.  That we consider that a violation of equal protection clause.  And I agree with them on that.  You know?  I helped to prompt that — that move on the part of the Justice Department.”

Correspondent Roberts clearly was referring, not to the DOMA litigation, but to the court fight over Proposition 8.  And the President did not answer her question; he chose to treat her question as referring to DOMA, and that is not the same thing.   The “equal protection” principle might not always mean the same thing when applied to laws at different levels of government.

Is this cutting the points too finely?  Because a victory over Proposition 8 would by implication undermine DOMA’s restriction, too, could that be what the President really was thinking about?  Or, given all that he said about this being an issue on the local and state level, and about not wanting it to be a national issue, it is very likely that — to the President — there is a distinct difference between striking down a federal law partly on grounds that it interferes with state powers, and striking down a state law passed by a legislature exercising the very state prerogative that the President has defended.

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The petition of the day is:

Latif v. Obama

Docket: 11-1027
Issue(s): (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Certiorari stage documents:

• Opinion below (D.C. Cir.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Retired Federal Judges
• Amicus brief of Former Intelligence Professionals et al.
• Reply of petitioner

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Analysis

The Supreme Court is now faced with the rare situation that one of its opinions was based on flawed information, and yet correcting it for the record books might actually undermine the ruling itself.  The dilemma: should it just let the error go, or should it do something about it, and, if so, what?  But there is also a procedural question that might have to be resolved first: who has the legal right to ask the Court to change an opinion that is wrong?

That is what the Court now confronts in the case of Nken v. Holder, a decision it issued in April 2009.   The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it.  Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling.  That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role.   The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

In the past, when the Court has modified an opinion to correct an error, it apparently has done so most often in response to a rehearing petition by a party actually involved.  Most famously, perhaps, the Court did that four years ago in a death penalty case – Kennedy v. Louisiana — when state officials told the Court its ruling had omitted any mention of a key fact. (There, the Court retroactively changed the wording of its opinion, but not the outcome.   It did so only after calling for added briefs, and then it split, 5-4, on the significance of the omission.)

Of course, if there are five votes to do it, presumably the Court could modify a flawed opinion after the fact even if no one had asked it to do so.  It could be mechanically a bit awkward, if the bound volume of the case is already out — as it apparently is with the ruling in Nken v. Holder.

But, for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety.   Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said.  Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away.  “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry.  The government, it added, has made no commitment “to a permanent, legally binding policy.”

And, it added, the assurances that the government now has sought to give the Court leave out a good many individuals who challenge their deportation.   The government, the letter noted, has promised a guaranteed return only of an individual who, before deportation, was a lawful permanent resident in the U.S., thus leaving out, say, an applicant — like Nken himself — for asylum.   And, even if the government is prepared to let a non-citizen come back, it has said that he or she will have to pay their own way to get back, and that could function as a practical barrier to return, the lawyers told the Court.

“The Court has a paramount interest,” the lawyers said, “in having lower courts and practitioners rely on its opinions.  Where an opinion is premised in part on an incorrect factual understanding, the opinion should be modified accordingly.”

Because the Court in Nken had relied upon a supposed policy of a clear chance to return to the U.S. for a successful challenger to deportation, taking out that part of the ruling would seem to indicate that such an individual might, in fact, face “irreparable injury” in not getting a delay in deportation during his or her legal challenge.  The denial of such an injury was, it seemed at the time, a central predicate of the Court’s ruling that immigrants facing deportation do not have an automatic right to have their removal postponed.  Perhaps, though, the Court might be content to rely on the new assurances from the government, despite the complaint of the immigrants’ counsel.

(To remind what this dispute is about: the Court ruled in Nken that this foreign national from Cameroon, who feared persecution if he was sent home, would not suffer any irreparable harm if he were deported before his legal challenge to deportation were decided.  In drawing that conclusion, the opinion relied upon the assurances provided in the Justice Department brief that, “by policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by…facilitating the aliens’ return to the United States by parole…if necessary, and according them the status they had at the time of removal.”  Later, immigrants’ lawyers questioned whether there was such a policy and, last month, the Department conceded to the Court that there was not, although it told the Court that it now has such a policy, thus making any further action by the Court unnecessary.)

 

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The petitions of the day are:

Jayyousi v. United States

Docket: 11-1194
Issue(s): Whether, consistent with the ruling below and that of four other circuits, and contrary to the rule in five circuits, lay opinion testimony satisfies Federal Rules of Evidence 701(a) and (b) -- which require that lay opinion testimony be “rationally based on the witness’s perception” and that it be “helpful” to the factfinder’s determination -- where the witness has no first-hand knowledge of the underlying events about which the witness opines.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari

Hassoun v. United States

Docket: 11-1198
Issue(s): (1) Whether Federal Rule of Evidence 701 permits a lay witness with no percipient knowledge of conversations to offer “opinions” as to a speaker’s supposed meaning of words used in those conversations; and (2) whether the terrorism sentencing enhancement may be imposed in the absence of the statutorily-required finding that the defendant’s motive is to intimidate, coerce, or retaliate against government conduct.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari

In association with Bloomberg Law

At its May 10, 2012 Conference, the Court will consider such issues as the First Amendment right to advertise a hedge fund, certifying a class before resolving “merits arguments” relevant to the certification, and whether a new trial is required when scientific evidence is later determined to be unreliable.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Nicholas & Associates, Inc. v. Central Laborers’ Pension Fund

Docket: 11-1077
Issue(s): (1) Whether the Employee Retirement Income Security Act (ERISA) is the sole basis for determining liability for delinquent contributions to ERISA benefit funds; and (2) whether a state law may be used as an alternative enforcement mechanism to supplement the civil enforcement remedies in ERISA in order to recover ERISA benefit fund contributions from a party that is not liable for the contributions under ERISA.

Certiorari stage documents:

• Opinion below (Ill. App. Ct.)
• Petition for certiorari
• Brief in opposition of Central Laborers' Pension Fund et al. (forthcoming)
• Motion for leave to file and amicus brief of Builders Association

De Aliaga v. Spain

Docket: 11-1070
Issue(s): (1) Whether the Eleventh Circuit’s decision allowing Spain to claim sovereign immunity with regard to private commercial cargo lost from a Spanish ship destroys federal court jurisdiction over all maritime salvage from beneath international waters; (2) whether the Eleventh Circuit’s conclusion contradicts this Court’s decisions in California v. Deep Sea Research, Inc., Compania Espanola De Navegacion Maritima, S. A. v. The Navemar, The Pesaro, The Davis, The Siren, and United States v. Peters; and (3) whether the Eleventh Circuit’s conclusion works to fundamentally change the boundaries of “commercial activity” and the “private transaction exception” within the Foreign Sovereign Immunities Act and conflicts with this Court’s holdings in Republic of Argentina v. Weltover and United States v. Planters Bank of Georgia.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition
• Motion for leave to file out of time and amicus brief of Professional Marine Explorers Society, Inc. et al. (forthcoming)

Peru v. The Unidentified Shipwrecked Vessel

Docket: 11-1068
Issue(s): (1) Whether the United States applies the customary international law that determines ownership of historical articles found in international waters, including Article 149 of the United Nations Convention on the Law of the Seas and the law of successor states, or imposes a rule directly contrary to the customary international law that awards such treasures to the nation whose warships were carrying them away from their historical home; (2) whether the Foreign Sovereign Immunities Act (FISA) preempts the historical possession rule outlined by this Court in California v. Deep Sea Research, Inc., so that, under the FSIA, foreign sovereigns have greater immunity protections than the United States government; and (3) whether, in an in rem action, international law and comity permit the invocation of sovereign immunity between two foreign nations claiming ownership of the same res.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition
• Motion for leave to file out of time and amicus brief of Professional Marine Explorers Society, Inc. et al. (forthcoming)
• Reply of petitioner

Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel

Docket: 11-1067
Issue(s): (1) Whether the common law doctrine requiring actual possession of property by a foreign sovereign claiming immunity from a federal court adjudication of its right to the property has continued vitality under the Foreign Sovereign Immunities Act; (2) whether a court without subject matter jurisdiction may transfer property to a foreign sovereign which did not have possession of the property and never proved ownership; and (3) whether a court must distinguish vessel and cargo interests to determine if a foreign sovereign’s assertion of immunity applies when the cargo is private but the vessel is public.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition of Kingdom of Spain
• Motion for leave to file out of time and amicus brief of Professional Marine Explorers Society, Inc. et al. (forthcoming)
• Brief of respondent Jose Antonio Rodriguez Menendez in support of certiorari (forthcoming)

Bulldog Investors General Partnership v. Galvin

Docket: 11-954
Issue(s): (1) Whether a state ban on speech by an issuer of unregistered securities to members of the public based upon their financial status violates the First Amendment, where the speech is concededly truthful and non-misleading, and where the state characterizes the speech ban as a “disclosure rule” to further an objective that federal law does not permit; and (2) whether the Due Process Clause of the Fourteenth Amendment permits a forum state to exercise personal jurisdiction over a non-resident business solely because the business operated a website accessible from the state (and from any other location in the world) and sent a single concededly truthful and non-misleading e-mail responding to a resident’s inquiry, when the business did not enter (and, based upon these communications, could not have entered) into a transaction with the resident.

Certiorari stage documents:

• Opinion below (Mass. S. Jud. Ct.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of Cato Institute et al.
• Reply of petitioners

Comcast v. Behrend

Docket: 11-864
Issue(s): Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition
• Reply of petitioners

Robbins v. Texas

Docket: 11-777
Issue(s): Whether federal due process requires that a criminal defendant be afforded a new trial upon the revelation that scientific evidence necessary to his conviction was or has become unreliable as a matter of law or scientific fact.

Certiorari stage documents:

• Opinion below (Tex. Crim. App.)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the Innocence Network
• Amicus brief of the National Association of Criminal Defense Lawyers
• Amicus brief of Texas Criminal Defense Lawyers (forthcoming)
• Reply of petitioner

________________________________________________________________

The following petition has been re-listed for the conference of May 10.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Coleman v. Johnson

Docket: 11-1053
Issue(s): (1) Whether the court of appeals’ grant of habeas relief based on a finding that the Pennsylvania courts misapplied Pennsylvania law should be reversed given that it conflicts with this Court’s holdings that it is not the province of a federal habeas court to examine state court application of state law and that only noncompliance with clearly-established federal law will render a state’s criminal judgment susceptible to collateral attack in federal court; (2) whether the court of appeals’ refusal to credit factual inferences favorable to the prosecution in connection with its Jackson v. Virginia analysis due to its subjective view that those inferences do not “more likely than not flow from” the trial evidence should be reversed given that it conflicts with this Court's holdings that a federal habeas court conducting a Jackson review must view the evidence in the light most favorable to the prosecution, presume that the jury resolved any conflicting factual inferences in favor of the prosecution, and defer to that resolution; (3) whether the court of appeals’ determination, which patently relies upon its own subjective conclusions regarding witness credibility and the proper weight to be accorded the record evidence, should be reversed given that it contravenes this Court’s repeated admonitions that a federal habeas court conducting a Jackson review is strictly forbidden from substituting its judgment for that of the jury on weight and credibility issues; (4) whether the court of appeals’ determination, which relies upon a definition of accomplice liability that conflicts with Pennsylvania law, should be reversed given this Court’s holdings that a federal habeas court engaged in a Jackson analysis must apply the substantive elements of the criminal offense as defined by state law; and (5) whether the court of appeals’ de facto finding that the state courts’ conviction was based on an unreasonable determination of the facts in light of the evidence presented should be reversed given that it fails to acknowledge or address the presumption of correctness that must be afforded the factual inferences drawn by the state courts pursuant to 28 U.S.C. § 2254(e)(l) and therefore conflicts with this Court’s holdings that the presumption of correctness afforded state court factual findings cannot be overridden absent clear and convincing contrary evidence.

Certiorari stage documents:

• Opinion below (3d Cir.)
• Petition for certiorari
• Brief in opposition

In association with Bloomberg Law

Political scientists have studied the Supreme Court and found that many Justices appear highly ideological in their decisions.  Some Justices vote consistently in a conservative direction, while others are consistently liberal.  This may be no great surprise to Court watchers, but lawyers often fail to come to grips with the Court as an ideological institution, not just a legal one. However, the political science studies on voting are typically quite facile, examining only the outcome of the case and categorizing it as “liberal” or “conservative.”

The outcome of a case before the Supreme Court doesn’t mean very much, deciding only the dispute between the parties.  The key to a Supreme Court decision lies in the nature of the opinion.  It is the opinion that sets the law, and a liberal result may be accompanied by a more or less liberal justification.  Yet it is the nature of that justification that is crucial to the law.  Because lower courts carefully adhere to Supreme Court precedent, it is the opinions that need study, as individual outcomes may be misleading.  For example, in Roth v. United States, the Court reached a conservative result, but it did so with an opinion that empowered many future liberal decisions.

In my article, The Ideology of Supreme Court Opinions and Citations, I set out to measure the ideology of opinions based upon the nature of their citations in subsequent opinions.  Citations are where opinion influence might be expected to show up in the law.  My database began shortly after World War II, and I limited the analysis to important cases, reported on the first page of the New York Times.  My theory was that the most liberal opinion would tend to be cited more as support of future liberal opinions and have relatively few citations in future conservative opinions.  By my theory, a more liberal opinion would have fewer qualifications that enabled it to be manipulated in pursuit of the opposite ideology.  Of course, many factors – not least changes in the Court’s agenda – influence the number of future citations, although not necessarily their ideological valence.

Because I am writing on unfurrowed ground, I considered a number of different measures. These included the nature of the citation (followed, explained, etc.) and whether the citation was in a majority opinion or a dissent.  Then I compiled the citations to the opinions on different scales.  First, I looked at simple citations.  The conservative case with the most conservative citations was Gregg v. Georgia, while the liberal case with the most liberal citations was Miranda v. Arizona.  But this is merely the absolute number of ideological citations, and Miranda was commonly cited in support of conservative outcomes.  An alternative scale might be the ratio of liberal to conservative opinions, but this was not very helpful, dominated by decisions with few citations (and zero or one of the opposite ideology).

I developed a concededly arbitrary influence score giving greater weight to stronger treatments (followed) and reducing points when a case was used either by the opposite ideology or by the same ideology in dissent, indicating the opinion was relevant but could not control the subsequent outcome.  By this measure, the most powerful liberal opinion was NAACP v. Button, and the most powerful conservative opinion Harris v. McRae.  Liberal opinions were significantly more powerful than conservative ones in this particular database, but this was probably an artifact of then-progressive opinions on civil rights and free speech that are now widely accepted.

The key question is “why are some opinions more powerful and influential?”  I looked at the identity of the authoring justice.  The opinions of Justices Black, Douglas, and Warren were by far the most liberal, but opinions of Justice Brennan were much more moderately so, perhaps evidencing he was more of a compromiser and not so liberal as often suggested.  The author of the most conservative opinions was Justice Powell, notably more so than Justices such as Rehnquist and Scalia.

These findings, though intriguing, are but preliminary.  I’m employing a commonly used word analysis program for opinions to see if language choices matter.  It wasn’t designed for the law, but legal dictionaries could be created.  Perhaps more (or fewer) citations affect an opinion’s power.  The surface is only being scratched here, and I’m quite open to any ideas from the readership.

Frank Cross is Professor of Law at the University of Texas.                                 

In association with Bloomberg Law

The petition of the day is:

FTC v. Phoebe Putney Health System, Inc.

Docket: 11-1160
Issue(s): (1) Whether the Georgia legislature, by vesting a local government entity with general corporate powers to acquire and lease out hospitals and other property, has “clearly articulated and affirmatively expressed” a “state policy to displace competition” in the market for hospital services, thus rendering federal antitrust laws inapplicable under the “state action doctrine”; and (2) whether such a state policy, even if clearly articulated, would be sufficient to validate the anticompetitive conduct in this case, given that the local government entity -- which acquired the only competitor of a private actor at the private actor’s behest -- neither actively participated in negotiating the terms of the hospital sale nor has any practical means of overseeing the hospital’s operation.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari

In association with Bloomberg Law

Maryland officials have set the stage for an appeal to the Supreme Court to revive their legal right to collect DNA samples from individuals who have been arrested, but not yet convicted of a crime — if the state’s highest court cannot be persuaded to reconsider its partial ban on that procedure.  The issue has divided lower federal and state courts, and the case of King v. Maryland would appear to pose the issue in a simple and direct way — a rape conviction would fall, and getting a guilty verdict at a new trial could be in considerable doubt.

The ruling last month by the Maryland Court of Appeals, the state’s supreme court, is here.  The state attorney general’s motion to reconsider, indicating plans to go on to the Supreme Court if necessary, can be read here.  State Attorney General Douglas F. Gansler asked the state court at least to put its ruling on hold until after it could be tested in the Supreme Court.

Maryland’s DNA sampling law was originally passed in 1994, but was extended in 2008 to require sampling of those arrested and not yet convicted.  The federal government and 25 of the 50 states have similar laws, and disputes over their constitutionality have arisen across the country.  The Supreme Court on March 19 refused to hear a case involving a challenge to a DNA sample taken from a Pennsylvania man (Mitchell v. United States, docket 11-7603), but the sample was not used in that case to identify the individual as the perpetrator of a different crime.

Among the constitutional issues that have arisen over such DNA sampling laws, these are some of the most significant:

** What level of privacy do arrested individuals have, compared to those actually found guilty of crimes?

** How intrusive is a DNA sample, both in terms of the physical procedure of swabbing inside the mouth, and in terms of the amount of private information gathered by such a swab?

** Do constitutional limits on it apply both to the original swabbing, and also to the later interpretation of the personal markers found?

** For constitutional purposes, is using the DNA result to tie an individual to other crimes simply another form of identification, or is it a form of investigation of another crime?  (In other words, can such a sample be used constitutionally only if it helps identify that arrested individual as the person the police want for that particular crime, or can it also be used validly to link that individual to other crimes, such as unsolved offenses (“cold cases”)?

** Is the constitutional equation different if a sampling law puts strict limits on what information from a sample may be used by prosecutors?  (In other words, is there no constitutional problem if the sample reveals only what are called “junk” factors that really do not tell much about an individual’s biological profile?)

** And, if such a sampling procedure is invalid in some particular factual situations, may it remain on the books for other situations? (In other words, should such a law be struck down as written — that is, facially — or only as applied to specific scenarios?)

Maryland’s highest court upheld the state’s DNA sampling law in 2004, but only as it applied to those already convicted of serious crimes (felonies).   But, in a 5-2 decision on April 24, the state tribunal found that the law could not be applied in the specific case of a Wicomico County man, Alonzo Jay King, Jr., and thus overturned his conviction for rape — a conviction that depended heavily upon a link to him provided by a DNA sample taken after his arrest earlier for a separate assault case.  (The state court turned down King’s plea to strike down the law as written — that is, his “facial” challenge to it; it said there might be instances where the sample could be validly used when an arrested person’s identity might be in question.)

Under the state court ruling, King can be prosecuted at a new trial, but Attorney General Gansler has told the state court, in his reconsideration motion, that the DNA sample that the ruling bars as evidence is “the strongest piece of evidence linking” King to a rape.   After his conviction for rape, King was sentenced to life in prison without parole.

King had been arrested in 2009 for an assault that was treated as a violent crime.  Because of that designation of his alleged offense, state law required that, upon his arrest, a DNA sample be taken by using a cotton swab inside his mouth to collect cellular material.  That was done when he was booked into the Wicomico County jail.  He also was identified by photograph and by his fingerprints.  He was later convicted of second-degree assault, and was given a four-year prison sentence, with three of those years suspended.

Later, scientific interpretation of that sample linked King to a rape that occurred in September 2003.   In that incident, which had remained a “cold case” for prosecutors, a 53-year-old woman was raped by an African-American man whom she could not otherwise identify.  The intruder held a gun to the woman’s head as he assaulted her.  Later, a semen sample taken from her body was found, though a DNA database, to match the DNA sample taken from King during the arrest procedure in 2009.   After his conviction, King challenged the use of the 2009 sample as evidence against him in the rape case.

In agreeing with his challenge, as the sampling law applied to him specifically, the state court majority ruled that arrested individuals have a higher level of privacy than those who have actually been convicted, that the sample in King’s case was not necessary to identify him in the assault case and thus was used only as a basis for investigating him in the earlier rape incident, that an arrested individual’s expectation of privacy in private biological information outweighed the state’s interest in gathering information to solve other crimes, and that DNA sampling is more intrusive than merely taking a suspect’s fingerprints so the long-standing legal permission to use fingerprint evidence did not control in the DNA context.

The state court majority said that its “analysis is influenced by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable….The state bears the burden of overcoming the arrestee’s presumption of innocence and his expectation to be free from biological searches….”   It found that the expectation of privacy was greater for an arrestee than for a convicted person, and that the state had not overcome that privacy claim by its interest in investigating other crimes.

The two dissenting judges argued that the majority had overstated the privacy interests of those arrested and detained in police stations.  And, they concluded, the government’s interest in solving crimes far outweighed any such privacy interests.  A swab of the mouth to pick up cells, the dissenters said, is “perhaps the least intrusive of all seizures” by police.

The dissenters also accused the majority of exaggerating the amount of biological information that could be exposed by using a DNA sample to get a ”hit” to help solve another crime.   The state law at issue, the dissenting opinion said, puts strict limits on the use of DNA information, and the kind that can be used in criminal cases is only the kind of “junk” data that does not disclose “intimate genetic information.”  What a DNA sample shows, the dissent said, is virtually identical to the ridges of a fingerprint that can only be used to identify a specific person, and nothing more.

The state attorney general, in asking the Court of Appeals to reconsider its ruling, or at least to stay it pending an appeal to the Supreme Court, said that the decision could affect state prosecutors’ use of evidence that could help solve “190 unsolved cases.”  Moreover, that motion contended, DNA sampling is used not only to solve unsolved crimes, but also helps to exonerate those who have been convicted in error and helps to eliminate other suspects in an investigation.

 

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One of the few ways in which Congress retains some control over the life-tenured Supreme Court Justices is through its power to strip the Court of jurisdiction to hear certain categories of cases under the Constitution’s “Exceptions Clause,” which provides that the Supreme Court’s appellate jurisdiction is subject to “such Exceptions, and . . . such Regulations as the Congress shall make.”  Although legal scholars debate the scope of Congress’s power under the Exceptions Clause, thus far all assumed that it empowers Congress at the expense of the Court.  In a forthcoming article, Professor Tara Grove boldly takes the opposite view.  Grove contends that the “Exceptions Clause, as employed by Congress, serves primarily to facilitate, not to undermine, the Supreme Court’s constitutional role.”

Grove’s argument is based in part on social science research showing that political actors are happy to delegate at least some decisions to courts because they settle disputes in a manner that promotes stability and uniformity.  The strongest evidence to support her thesis, however, is experience itself.  Although on rare occasions Congress has taken controversial cases or issues away from the Court, Grove points out that far more often Congress has used its Exceptions Clause power to expand Supreme Court jurisdiction and to give the Court more control over its docket.  For example, the Judiciary Act of 1891 simultaneously enlarged Supreme Court jurisdiction and granted the Court discretion over some of its caseload through certiorari review.  That trend continued throughout the twentieth century, leaving us where we are today – with a Court that has almost complete control over its docket.

Although I still view the Exceptions Clause as a potential check on the Court’s authority — in part because the threat of jurisdiction-stripping alone may influence the Court’s behavior, even if Congress rarely acts on it — Grove’s article makes a convincing case that the Clause can, and often has, been used by Congress to benefit the Court.  In short, her article provides an important new perspective on the relationship between Congress and the Court.

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The most common war crimes charge that the U.S. military has made against terrorism suspects at Guantanamo Bay appeared to be in some doubt Thursday in a federal appeals court — if the first case testing it does not go away procedurally.   The D.C. Circuit Court, in an hour-long hearing before a standing-room-only courtroom audience, showed clear signs of skepticism about the military’s use of the charge of “material support for terrorism,” at least as it would apply to cases before Congress created a new system of military commissions in 2006.  That, of course, would be most if not all of those who currently face commission trials.

At the same time, however, the specific case before the three-judge panel — Hamdan v. U.S. (Circuit docket 11-1257) — has hanging over it the possibility that it might be declared moot, because the convicted Yemeni national involved — Salim Ahmed Hamdan — has finished his war crimes sentence and has been released, to live in his home country.   Indeed, at the start of Thursday’s hearing, the panel ordered the two sides to file new legal briefs over the next 60 days on whether Hamdan’s case remains a live one legally speaking.  If it is no longer a live controversy, no federal court would have jurisdiction to decide it.

If the panel does move ahead and decide Hamdan’s challenge to his conviction on the “material support” charge, the ruling could be of major significance for the often-troubled military commission system at Guantanamo.  Two out of every three cases in which charges have been filed there have included this specific crime.  Under international law, specifically the branch called “the law of war,” that charge is not recognized as a war crime.  Hamdan’s lawyers contend that, therefore, the crime could not be charged under the Military Commissions Act of 2006, since that creates “law of war” trial commissions.

The Justice Department, however, defends the use of that charge on the premise that Congress had the authority to create that crime based not on international law but on something it calls “the domestic common law of war,” a concept that it traces at least back to the Civil War.

At Thursday’s hearing, Circuit Judge Brett M. Kavanaugh, who was the dominant questioner, was the most skeptical among the three judges about that argument.  While he suggested that Congress might well have the authority to create that crime “going forward” — that is, for cases that arose after 2006 — he said it was “a whole different question” whether a federal court should allow the charge to be leveled prior to that date.

Another member of the panel, Chief Judge David B. Sentelle, was somewhat less skeptical than Judge Kavanaugh, but did seem to support his colleague’s suggestion that, if Congress were to “take leadership” in recognizing a material support crime, it might have to be for future cases only.

Senior Circuit Judge Douglas H. Ginsburg asked few questions, but he was the only member of the panel who showed any real interest in whether the Hamdan case was moot.   That depends upon whether Hamdan, though now free and living in his homeland, could suffer any “collateral consequences” stemming from his conviction, since a finding of such consequences would keep his challenge alive. Justice Department lawyer John F. De Pue conceded on Thursday, as he did in the government’s merits brief, that the government does not challenge Hamdan’s claim that he could suffer consequences, especially if he were to be captured again should he return to armed terrorist activity.

After Judge Ginsburg pressed the mootness issue, Judge Sentelle commented that his own research did not turn up any prior ruling in which a court found no collateral consequences, when the case involved the first direct appeal from a conviction — the situation in Hamdan’s case.

Hamdan’s lawyer, Joseph M. McMillan, got a mostly friendly reception from the Circuit panel, and especially from Judge Kavanaugh.   Even so, if it should turn out that Hamdan wins only Kavanaugh’s vote against the material support charge, and loses Judge Sentelle on that point and loses Judge Ginsburg on mootness, the legal result would be that Hamdan would lose, because such a divided result would simply mean that the Circuit Court did not have the votes to overturn a ruling against Hamdan, on all points, by the U.S. Court of Military Commission Review in a decision last June.

While Hamdan’s challenge to his conviction is based in part on an array of constitutional provisions, including his argument that it was unconstitutional discrimination for Congress to confine military commission trials only to non-citizens, none of the constitutional arguments were discussed during the Thursday hearing, which ran 20 minutes longer than scheduled.   Instead, the dominant issue throughout was the question of whether Hamdan was properly charged with the material support crime.

His attorney, McMillan, argued that the government was trying — in pressing that charge based solely on “domestic common law” — to do what past governments have often tried to do, to expand the powers of military tribunals, only to be resisted repeatedly by the regular courts.  McMillan contended that the Justice Department justification for this charge now was the pursuit of “a radical and unsound approach” that would mean “a troubling encroachment” on the power of civilian courts.

Relying upon what he said were a string of Supreme Court precedents, including as recent as 2004, Hamdan’s attorney said that the Justices have made clear that war crimes must be based on the norms of international law, not domestic U.S. law.

Government lawyer De Pue countered that Supreme Court precedents should be made to make clear that international law is not the sole source of the kinds of war crimes that can be prosecuted under U.S. law, including looking to domestic common law.   But, he added, even if a crime declared by Congress does not happen to be recognized as a crime under international law, that does not bar Congress from codifying that crime under domestic law.   He said a crime that is equivalent to the material support charge against Hamdan has a history that goes back to the eighteenth century.

Since the Circuit panel has called for added briefing on the mootness question, and that schedule runs for the next 60 days, it is unclear when the panel will issue its decision.  There is no set timetable for it.

(UPDATE: A reader points out that, even if Judge Ginsburg were to conclude, alone, that the case is moot, it would be possible for him to file a dissent on that point but join with one of the other judges to make a majority on a ruling on the merits.  It has been done before in the D.C. Circuit, on a similar procedural point, by Judge Sentelle, the reader notes.)

 

 

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The petitions of the day are:

Florida v. Georgia

Docket: 11-999
Issue(s): Whether the Army Corps of Engineers must comply with the explicit statutory limit in the Water Supply Act of 1958 that requires Congressional approval before the Corps undertakes a major reallocation of federal reservoir storage to provide local water supply.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition of Federal Respondents

Alabama v. Georgia

Docket: 11-1006
Issue(s): Whether, under step one of this Court’s Chevron analysis, in determining whether Congress has “directly spoken to the precise question at issue” – thereby foreclosing an agency’s discretion to interpret a statute it administers – a court may base its conclusion on what it considers to be the best construction of ambiguous language.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition of Federal Respondents

Southeastern Federal Power Customers, Inc. v. Georgia

Docket: 11-1007
Issue(s): (1) Whether Article III of the United States Constitution permits an appellate court independently to adjust resource allocations for a federal multipurpose water project based in part on United States Army Corps of Engineers (“Corps”) reports that were never presented to Congress rather than solely on the Corps reports upon which Congress originally relied to authorize and allocate resources for the project. (2) Whether the Eleventh Circuit’s ruling is inconsistent with the Due Process Clause of the Fifth Amendment and the Administrative Procedure Act because it makes judicial review of agency actions unavailable indefinitely, including review of water storage allocations made over a 40 year period, if the agency labeled the actions as “interim” and has not sought to evade judicial review. (3) Whether the Eleventh Circuit created an irreconcilable conflict with the D.C. Circuit by disregarding a directly relevant and fundamentally inconsistent ruling by the D.C. Circuit in the same underlying cases.

Certiorari stage documents:

• Opinion below (11th Cir.)
• Petition for certiorari
• Brief in opposition of Federal Respondents

 

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The petition of the day is:

Brown v. Calamos

Note: Goldstein & Russell, P.C. represents the petitioner in this case.
Docket: 11-1173
Issue(s): Does the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. § 78bb(f), require dismissing with prejudice a class action complaint that contains no claim for relief “alleging a misrepresentation or omission of a material fact”?

Certiorari stage documents:

• Opinion below (7th Cir.)
• Petition for certiorari
• Amicus brief of Eleven Law Professors

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Despite broad areas of agreement that have emerged over the years, scholars and other serious observers of the Supreme Court remain far from unified in their understanding of what drives the Court’s decisions.  Few would maintain that we can say much useful about the Court’s decisions without considering the ideologies of individual Justices; far too much evidence has been amassed over the years showing that ideology has a substantial effect on their decisions.  (Imagine trying to predict how the Court will rule on the individual mandate without reference to the Justices’ deep-seated policy views.)  In fact, many scholars would maintain that ideology is so dominant that there’s not much point in paying attention to anything else.

To some scholars, including us, this last proposition seems to go too far.  Yet demonstrating this has proved notoriously difficult.   In our view, some of the difficulty arises from a tendency to think in overly general terms about how the Justices decide.  We believe that more progress can be made by investigating the possibility that Justices decide differently in different cases.  The article posted here is part of a larger project exploring that possibility.

In an earlier article we developed a method for measuring disorder, the degree to which the voting coalitions in a case depart from what we would expect if the Justices were voting along expected ideological lines: compare a five-to-four decision where the dissenters are Thomas, Scalia, Alito, and Roberts – consistent with expectations – with one where the dissenters are Thomas, Alito, Ginsburg, and Kagan – wildly inconsistent with expectations.  Now, the simple fact that Justices formed strange-looking coalitions in a case does not necessarily mean that their votes were not based on ideology, any more than the simple fact that they broke down along traditional ideological lines in another case necessarily means that their votes in that case were driven by ideology.  Nevertheless, one might expect that, on average, those cases exhibiting considerable disorder are driven less by ideology and more by other considerations. To ascertain whether ideology really does play a lesser role in the cases that result in disordered coalitions, we investigated the relationship between patterns of voting and case factors that should enhance ideology’s role in decisions.  We found that coalitions were more consistent with ideological voting in cases where we would expect ideology to have more impact, for instance in those the Court heard by choice (on certiorari), that involved constitutional issues, and where the Court overruled precedents.  In our view, this is strong evidence that cases do vary in the degree to which ideology dominates Justices’ decisions.

In the article featured here, we turn from the puzzle of strange coalitions in a Court where ideology is undoubtedly important to the puzzle of numerous highly consensual votes in that same Court.  In the fifty Terms running from October 1957 to June 2006, the Justices decided thirty-eight percent of fully argued cases without dissent.  In an additional eleven percent, only a single Justice dissented.

As common as these decisions are, scholars have given them little systematic attention.  We are not entirely sure why, but one likely reason is that they are generally not seen as worthy of special consideration.  For it may well be that the same forces that explain five-four and six-three decisions explain eight-one and nine-zero decisions – it is just that those forces push more Justices in the same direction in the cases that generate few or no dissents.

We think there are good reasons to question this one-size-fits-all account, especially to the extent it assumes that ideology always dominates Justices’ voting.  Consider, for instance, that a unanimous reversal at the Supreme Court could occur only if the lower court panel contained at least two judges who were both either more liberal or more conservative than even the most liberal or conservative members of the Supreme Court and were willing to court reversal with a decision unappealing to anyone on the Court.  Affirmances by a lopsided majority of the Court would require an ideologically divided Court to populate its docket with cases in which the lower court’s decision was obviously correct.  Neither of these events seems terribly plausible.

We suggest instead that cases with few or no dissents are systematically different from those that sharply divide the Court.  Specifically, we suspect that ideology tends to play less of a role in the former than in the latter.  We test this hypothesis by building on our earlier article, employing the same measure of the ideological disorder of the Justices’ voting coalitions to ask whether highly consensual decisions look more like those cases that produce ideologically strange coalitions or ideologically consistent ones.    It turns out that they look more like the cases that produce ideologically strange coalitions.  We view this result as substantial, albeit indirect, evidence that ideology is less dominant in decisions with larger majorities.

Because of what this finding indicates about both the nature of consensus and the reach of purely ideological models of decision making, we think it provides a strong argument for renewing scholarly attention to consensus on the Court.  More broadly, we think it demonstrates that we can gain a fuller understanding of Supreme Court decision making by recognizing that the influences on Justices’ decisions will vary from case to case.

Paul H. Edelman is a Professor of Mathematics and Law at Vanderbilt University; David E. Klein is an Associate Professor of Politics at the University of Virginia; and Stefanie A. Lindquist is Interim Dean and Professor of Law at the University of Texas.  The full version of their article, Consensus, Disorder, and Ideology on the Supreme Court, can be found here.

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