Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

It's official!

Judge Sonia Sotomayor, currently a judge on the 2d Circuit Court of Appeals, and President Obama's first pick for a seat on the Supreme Court, confirmed by the Senate. The vote was 68-31.   All Democrats present, and both Independents Senators voted in her favor.  Only nine Republicans crossed the aisle.  Ensign was not among them. Ted Kennedy, suffering from brain cancer, was the only senator absent for the vote.

Republicans struggled hard to find reasons to vote no.  Obviously, it is not easy to say that someone who is already a federal appellate judge lacks the approrpiate qualifications to be one.  Not that simple facts kept them from trying. . .

Judge Sotomaoyr is the third woman, and the first person of Hispanic heritage, to be appointed to the Court.  She will be sworn in on Saturday as the Court's 111th justice. 

Congratulations, soon-to-be Justice Sotomayor!

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That was the conclusion today of the U.S. Supreme Court’s  ruling in Caperton v. A.T. Massey Coal Co.. The Court found that the failure of a  judge on West Virginia’s highest court to recuse himself from a matter in which a sizable donor  to the judge’s election campaign had in interest violated federal due process. I've mentioned this case before: Recusal required due to future campaign contributions?

The Court considered the facts from this case extreme. The donor had contributed $3 million to the judge’s campaign, an amount greater than all other donations combined, and made the donation  after his company had been hit with a $50 million judgment. The recipient of the donations defeated the  incumbent by fewer than 50,00 votes. The judge declined to recuse himself from hearing the matter, and the Court subsequently reversed the judgment on a 3 to 2 decision.

Justice Kennedy authored the 5-4 decision.

As we might have expected, Roberts, Scalia, Thomas and Alito dissented.

Regardless of actual bias, there will always be fears of bias when judicial elections can so easily be influenced by an infusion of cash donations to one candidate or another. In the Caperton decision, the Court noted the potential psychological effect of sizable donations upon the judge.

Such risks are considerably decreased under a merit selection system. Assorted changes in my own life (such as moving to a new firm, etc) have caused me to be remiss in applauding the Nevada Legislature for its second passage of the SJR2, which proposes an amendment to the Nevada Constitution to allow for merit selection and retention elections, rather than elections to select judges.

If the voters show the same wisdom, then the fear of bias resulting from donations to judicial campaigns won’t be an issue in Nevada.  I doubt we have any examples from Nevada with the same extreme facts as in Caperton, but enlighten me if I am wrong.

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What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.  

Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory.  Caperton v. A.T. Massey Coal Co.  involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict.  The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.

The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign.  Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.

The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate.  Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.

Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias. 

However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?" 

But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:

that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge

The increased money being spent on state court judicial election campaigns across the country  has sparked considerable concern about the purchase of justice.  But  Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind.  See the USA Today article Supreme Court case with the feel of a bestseller.

Read the transcript of the Caperton oral argument here. Find the briefs here.

Hat Tip to law.com. See its report here.

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Check out U.S. Supreme Court Chief Justice John Robert's hard-boiled opening paragraphs in his dissent from the denial of cert in Pennsylvania v. Dunlap:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

I think the man has potential. Dare I suggest he give up his measly government salary and write full time? 

Of course, writers tend to average quite a bit less than the CJ’s current salary ($217.5K). In fact, I've herd the average novelist earns about $10K or so – and that includes only those with any income at all.

But Roberts already has significant name recognition. He could easily build a platform from which to launch a successful career as a novelist. In fact, he could command huge speaking fees, and then hand sell his novels at the back of the room.

So, in the spirit of helping an aspiring novelist leave the legal profession to pursue a full-time writing career, I personally  promise to buy a copy – in hardcover! –of every novel Roberts publishes  (provided, however,  his resignation occurs while during a Democratic presidency).

Won’t you join my pledge?

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Or maybe it was just annoying attorney ads that riled people up.

Yesterday, the Nevada Appeal quoted a letter the Morning Appeal had received in 1878 from Elmira Louisa Pepsey. In subscribing to the paper, Miss Pepsey wrote:

We have noticed one pleasing peculiarity of your instructive and purifying paper: It is free from all such horrid things as lawyers advertisements! Ma, who has a great dislike for lawyers, says your paper is a precious blessing on this account.

Of course, distrust of lawyers existed as far back as Shakespeare’s time, as the oft quoted passage from Henry VI, Pt. 2 “The first thing we do, let’s kill all the lawyers.” But hey – those words were spoken by supporters of the villains!  

But it does make me wonder what sorts of advertisements might lawyers have had back in Shakespeare’s time. 

Hat tip to Wild, Wild law.

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Yet another sentence enhancer case, but this time, the defendant won!

The Armed Career Criminal Act adds another 15 year sentence to where a felon possessing a firearm had three or more prior convictions for “violent felonies.”  Violent felony was defined as a crime punishable by more than one year “that is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.”

Burgess, who apparently likes to drink and drive, had 12 convictions for DUI in New Mexico, where, after a third such conviction, the offense becomes a felony.  Apparently noting the risk posed by those who drive while intoxicate, found Burgess has the requisite three or more violent felony offenses to qualify for the additional 15 years.  (It’s not clear from the opinion, but apparently these were also the felonies that made him a felon unable to possess a gun. )

The Court found DUI was not within the intended scope of the sentence enhancer. Instead, the enhancer applies only to crimes similar to those offenses listed, rather than all risky crimes. The Court noted that the listed crimes generally involves purposeful, violent, and aggressive conduct whereas DUI  does not.

We’ve all seen the videos of the happy drunks who speed merrily down the highways, so I guess this is true that DUI is not necessarily violent or aggressive (purposeful, of course, is also debatable, but the drinking part usually is Personally, I think the selected examples are a bit odd – no robbery, no sexual assault, no murder – crimes I tend to think of as violent. ).  While arson, using explosives ,and extortion pretty much fit, I am not so sure that burglary is necessarily, or even usually,  violent or “aggressive.” 

Breyer wrote the majority opinion; Roberts, Stevens, Kennedy, and Ginsberg joined. 

Scalia concurred in a separate opinion. He disagreed with the majority’s conclusion that the statute did not intend to encompass all felonies that have the potential for risk of harm to others. He just doesn’t buy that DUI encompasses such a risk.  In fact, he does not think that drunk driving poses as least a serious risk of injury to another as burglary.  

Alito dissented with Souter and Thomas joining.

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Or, at least, it is for sentence enhancement purposes under the Controlled Substances Act. 21 U.S.C. § 841 (b)(1)(A).   So said a unanimous U.S. Supreme Court in Burgess v. U.S., released today. 

Burgess pleaded guilty of conspiracy to posses within intent to distribute 50 grams or more cocaine, and had a previous conviction from South Carolina for possession. S.C defined the offense as a misdemeanor, but it carried a maximum sentence of two years. 

Section 802 contains a definition of “felony” that defers to state law classifications of a crime, and a definition of “felony drug offense” that bases the classification upon a sentence of at least one year imprisonment being possible.   The Court found that Congress intended to use the latter definition when it use the term of art “felony drug offense” in its sentence enhancing provision. 

The sentence enhancer doubles the minimum sentence for this offense.

I can't argue with the Court's reasoning here; the use of the term should follow the term's definition.

 But Is there any chance that Congress will ever recognize the futility of the war on drugs?  We waste so much on trying to stop what obviously cannot be stopped. 

So far this year - and remember, this is only April, the U.S., federal and state governments have spent more than 14 billion on the war on drugs.  See the Drug War Clock.

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In Baze v. Rees, announced today, the U.S. Supreme Court rejected claims that execution by lethal injection, at least using the 3 drug cocktail employed by the State of Kentucky,  violates the 8^th Amendment. 

Chief Justice John Roberts, writing in a plurality opinion, stated, “We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment."  The cocktail in question consists of an anesthetizing drug administered first, followed by two admittedly painful drugs that actually cause death.  

Justices Kennedy and Alito joined in Roberts’ opinion. Justices Stevens joined in the outcome, but doesn’t consider this debate over. Justices Thomas and Scalia differ with Robert’s formulation of the standard for cruel and unusual punishments, but concur in the outcome. Justice Breyer agreed there was no evidence that the method created a risk of unnecessary suffering, but noted the lawfulness of the penalty itself was not before the court.  

Justices Ruth Bader Ginsburg and David Souter dissented, finding the evidence sufficient to establish that the combination of drugs used creates a risk of unnecessary suffering, due to Kentucky’s failure to require protocols to insure the inmate is actually unconscious before the two lethal drugs are administered.

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The AP reports that a man who has made racially charged threats for decades, including threats against U.S. Supreme Court Justice Clarence Thomas, and the Supreme court’s building, was finally tracked down after he began sending his threats via email instead of through the U.S. Mail. See FBI Describes Search for Letter-Writer Charged With Threatening Justice Thomas and High Court Building.

The 46 year man is reported to live in his parents’ house. No word on whether he lived in the basement of the house, but somehow, that seem likely. . .

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On Wednesday, Feb. 27, 2008, in Federal Express Corp. v. Holowecki, the U.S. Supreme Court held that a failure to the EEOC to comply with statutory requirements to inform companies of claims filed against them cannot bar plaintiffs from proceeding to trial. The EEOC had not considered a worker’s intake questionnaire outlining the claim to be a formal charge, and therefore, did not start an investigation. The Court found the intake questionnaire came close enough to filing requirements to have constituted a “charge.”

The Court also established an objective test to determine whether a charge has been filed: would an objective observer examining what the complaining worker has filed conclude the agency should “activate its machinery and remedial processes.”

Justice Kennedy wrote the opinion for the 7-2 majority, admonishing the agency to “determine, in the first instance, what additional revisions in its forms and processes are necessary or appropriate” to “to reduce the risk of further misunderstandings by those who seek its assistance.” 

Justices Thomas, former head of the EEOC dissented, with Scalia joining. 

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On Tuesday, Feb. 26, 2008, in Sprint/United Management Co. v. Mendelsohn, the U.S. Supreme Court found the 10^th Circuit had erred in concluding that a district court decision had applied a “per se” rule excluding evidence of discriminatory conduct against employees not “similarly situated” to the plaintiff. The Court remanded the matter for clarification by the District Court as to the basis for its exclusion of the evidence.

The ruling makes it clear that “me too” evidence – evidence by other workers for the same company but not working for the same department or supervisors, that they’ve been treated unfairly, it neither per se admissible nor inadmissible under the federal rules. Instead, the admissibility of such evidence is fact-specific, depending upon the nature of the “me too” evidence and its relationship to the specific allegations in the case.

Justice Thomas drafted the opinion for the unanimous court.

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In LaRue v. DeWolff, Boberg & Associates, Inc., the Court ruled ERISA § 409 and § 502(2) permit recovery by an individual who alleges that his own plan benefits were reduced due to fiduciary breaches by a plan administrator. The Court distinguished this situation from that in Massachusetts Mutual Life Ins. Co. v. Russell, where the participant was promised a fixed benefit. Russell held that when a fixed benefit is promised, only breaches causing a plan default are actionable. Justice Stevens wrote majority opinion; Roberts and Thomas each filed concurring opinion, in which Kennedy and Scalia, respectively, joined.

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Three of the decisions issued by the U.S. Supreme Court yesterday revolved around the issue of federal preemption of state law. In each, the Court found the state law preempted.

Plaintiffs’ attorneys took a hit in Riegel v. Medtronic, Inc., where the Court held 8-1 ruling that state common law tort claims were preempted by the Medical Device Amendments (MDA) of 1976.  Te MDA established federal oversight of the safety of medical devices. Justice Ginsburg was the lone dissenter, calling the majority opinion "radical curtailment" of state common law claims that Congress never intended.   Stevens concurred in the judgment, agreeing with the majority that the statute’s text preempts the state common law claims. However, he also agreed with Ginsburg that Congress’ intent was otherwise.

TV's Judge Alex  got a lesson in jurisprudence in Preston v. Ferrer. The Court held in an 8-1 decision that the Federal Arbitration Act (FAA) compelled arbitration of celebrity judge Alex Ferrer’s dispute with his talent agent, preempting California Talent Agency Act, which gave exclusive jurisdiction of the dispute to California’s Labor Commission. The Court held that when the parties agree to arbitration in a contract, the FAA will preempted any state law vesting jurisdiction in another forum, whether judicial or administrative. Justice Ginsburg drafted the majority opinion.  Justice Thomas dissented, staying true to his view that the FAA has no application in state court proceedings. 

The tobacco industry saw a victory in Rowe v. New Hampshire Motor Transp. Assn., where the Court unanimously struck down a Maine law prohibiting Internet tobacco sales to minors. The Court held the state statute was preempted by federal law prohibiting states from regulating prices, routes or services of shipping companies, because the Maine law restricted transportation companies from delivering tobacco products directly to consumers. The Court rejected Maine’s argument that federal laws do not preempt state statutes enacted to protect the public health, finding no public health exception in the federal statute’s text.  Justice Breyer authored the opinion.

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On January 22, 2008, the Court issued one opinion:  

In Ali v. Federal Bureau of Prisons, a 5-4 decision, the Court upheld the 11^th Circuit’s determination that the Federal Tort Claims Act does not waive sovereign immunity for claims arising from the detention of property by law enforcement officers.  The Court rejected the claim that 28 U.S.C. 1346 exempted from the waiver of immunity only detention of property by customs or excise officers.   Thomas wrote the opinion for the majority. Kennedy, Stevens, Souter and Breyer dissented.

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On January 16, 2008, the Court issued two opinions:  

In Knight v. Commissioner,  the Court held that a trust is bound to a limitation of deduction for investment advice fees to 2% of the adjusted gross income of the trust. The exception to such limitation existing for trusts – where the fees in question relate to trust administration and would not have been incurred were the property not held in trust—did not apply, as advisory fees could be incurred even if the property were not in trust.  23 U.S.C. 63(d); 67. The Court noted that the burden is on the taxpayer to show that an exception applies, and here, the trust had not shown that it is unusual for an individual to seek investment advice.  

Roberts drafted the unanimous opinion.

In New York State Bd. of Elections v. Lopez Torres, in which concurrence in the outcome was unanimous, the Court upheld New York’s convention system for determining party nominees for the state judiciary.   The Court reiterated both that a political party has associational rights, and that such rights may be circumscribed by the state where the state gives the party a role in the electoral process, such as allowing the party nominees to appear on the ballot without following other requirements.   However, merely because a state may require either primaries or conventions for the party nominee to appear on the ballot, does not mean that the state must require one or the other.

Scalia write the majority opinion; Stevens and Kennedy each wrote concurring opinions.

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On January 15, 2008, the Court issued one opinion:

In Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., a 5-3 decision, the court held that the private right of action under 10(b) of the Securities Exchange Act of 1934 does not reach defendants who made no statements or representations upon which an investor relied. This decision resolves the question of whether there is a cause of action for aiding and abetting a securities fraud claim under the Act. There is not.

Kennedy wrote for the majority.  Stevens, Souter and Ginsberg dissented.  Breyer recused.

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On January 8, 2008, the Court issued one opinion:

In John R. Sand & Gravel Co. v. United States, a 7-2 decision, the Court held that the issue of timeliness of a claim filed with the Court of Claims is jurisdictional. Accordingly, a Court can and should consider the timeliness of the claim sua sponte.   Here, the government has raised the issued of timeliness in the court of claims, with the court resolving the issue in favor of timeliness. The government did not raise the issue on appeal. The Federal Circuit considered the issue sua sponte, and found the claim untimely.   Stevens and Ginsberg dissented.

The Court declined the invitation to overturn precedent consistent with the outcome. Writing for the majority,  Justice Breyer stated:

To overturn a decision settling [a] matter simply because we might believe the decision is no longer “right” would inevitably reflect a willingness to reconsider others.  And that willingness could threaten to substitute disruption, confusion, and uncertainty for necessary legal stability.

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On January 7, 2008, the Court issued one opinion, and dismissed a case as moot.

In Wright v. Van Patten the court per curiam reversed the decision of the 7th Circuit.The issue was whether participation in a plea hearing by telephone was presumptively ineffective assistance of counsel. The Court muses about whether the two part test of Strickland v. Washington would apply to such claims [– the defendant must show 1) deficient performance that 2) prejudiced the defense] and the likely inapplicability of United States v. Cronic’s  “per se” finding that the total absence of counsel prejudices a defendant, as such might not apply to the situation where counsel is not physically present, but participates by telephone.However, the Court makes plain that its decision rests on the fact the state court had not failed to follow clearly established federal law in deciding that the defendant had not established ineffective assistance of counsel. Absent such a failure, collateral relief must be denied.

Arave v. Hoffman was dismissed as moot due to the withdrawal of a claim by the habeas Petitioner below (Respondent here).

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There have been seven decisions so far in the 2007 term:

December 10:

In Kimbrough v. United States , the U.S. Supreme Court reiterated that the sentencing guidelines are advisory only, and struck down the 4^th Circuit’s rule that a sentence outside the guidelines is per se unreasonable when based upon disagreement with the distinctions between powder and crack cocaine. The Court expressly allows a district court to consider the disparity in treatment in the guidelines between crack and powder cocaine offenses. Thomas and Alito filed dissenting opinions.

In Watson v. United States, the U.S. Supreme Court held that a defendant does not “use” a firearm in connection with a drug offense, as the term is used in the sentencing guidelines 18 U.S.C. 924, merely by receiving a gun for payment in a drug transactions. The full court agreed on the outcome here; although Ginsburg filed a concurring opinion.

In Gall v. United States , the U.S. Supreme Court restored some of the traditional discretion long enjoyed by sentencing judges, holding that appellate courts must employ the “abuse of discretion standard” in reviewing sentences. A district court must consider and justify its departure from the advisory sentence guidelines. An appellate court may not require extraordinary circumstances as such justification, and may no employ a rigid mathematical formula to determine whether how much justification is required.  In Gall, the defendant, who had participated in an ecstasy distribution scheme while in college,   received probation, rather than a prison sentence, which the district court properly justified by the defendant’s withdrawal from the offense, cooperation with authorities, and subsequent law abiding conduct.   Thomas and Alito filed dissenting opinions.

Since the 9^th circuit has traditionally allowed deference to the sentencing court, this decision will have less impact in this circuit than in circuits such as the 7^th or 8^th, where appellate review has been intolerant of deviation from the guidelines.

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Dr. Richard Lazarus, a professor at Georgetown, will soon publish findings showing a connection between the development of a cadre of Supreme Court bar elite, and the Court’s increased pro-business tone.

Tony Mauro discusses the study in New Study Suggests Veteran Advocates Sway Supreme Court

Among the tidbits worth considering:

–        supreme court law clerks admit to giving special attention to briefs filed by the “inner circle”  – and often accept positions at their firms following the clerkships

–        the Supreme Court bar, with its clients able to afford fees exceeding $100,000, is guiding  the content of the docket and court doctrine toward business- favored solutions, and away from civil liberty and labor-friendly outcomes. Prof. Lazurus states that the Court increasingly rules in favor of "monied interests more able to pay for such expertise."

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This time, it was the U.S. Supreme Court that stayed the execution of a Virginin man, Christopher Scott Emmett.

Scotusblog discusses this and the state of lethal injunction in "A 'moratorium' on lethal injection?"

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SCOTUSBlog has its first statpack for the 2007-2008 term of the Supreme Court of the United States available here.

The Statpack lists the cases accepted for the term, with brief details about the issues, and the argument date, if scheduled.

And for those with a nostalgic bent, you can find the final statpack for the 2006-2007, term, including he completed circuit score card, here,  

Many thanks to SCOTUSBlog for these invaluable tools.

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The Nine: Inside the Secret World of the Supreme Court  is the latest from Jeffrey Toobin, who writes for The New Yorker.

Read an excerpt and listen to NPR’s recommendation for The Nine here.

SCOTUSBlog interviews Toobin, with  Part I here  and Part II here.

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This morning, the U.S. Supreme Court issued its final four decisions of the 2006 term.

In Panetti v. Quarterman, the Court strikes down the standard employed by the 5^th circuit to determine a delusional man should be executed.  Kennedy authored the 5-4 decision.

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Court overruled an antitrust decision nearly one hundred years old, holding today challenges to vertical price restraints required analysis under the rule-of-reason. Kennedy authored the 5-4 decision.

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, which combines two school integration cases, the Court voted 5-4 to strike down two voluntary integration in public schools in Seattle and Louisville.   Writing for the  majority, Justice Roberts stated “"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."   In his oral pronouncement from the bench, the CJ insisted the Court was remaining true to Brown v. Board of Education.  However, Justice Kennedy, concurring in the result but writing separately, declined to join the majority opinion because it found that achieving racial parity was not a compelling state interest.  Stevens and Souter both dissented from the opinion

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In Tennessee Secondary School Athletic Assn. v. Brentwood Academy, decided last Thursday, the U.S. Supreme Court held that enforcement of regulations prohibiting “hard-sell” tactics for recruiting members of school sport teams does not violate the First Amendment.  While the rules here were promulgated by a voluntary organization, the Court held that the ability to limit speech was not unlimited.  However, where the curtailment is necessary to the organization’s purpose – here, management of an effective and efficient high school athletic league—the conditions on membership may be enforced.

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A busy week slowed down my reports on opinions issued by recent opinions the Ninth Circuit and U.S. Supreme Court last week.  I plan  to catch up over the next few days.  Meanwhile, here are links to today’s opinions from the Supremes:

National Assn. of Home Builders v. Defenders of Wildlife, reversing a Ninth Circuit decision that the EPA had acted in an arbitrary and capricious fashion.

Hein v. Freedom From Religion Foundation, Inc., reversing the Seventh Circuit and holding that the organization did not have standing to challenge the creation of faith based initiatives.  

Wilkie v. Robbins, holding that a landowner had no Bivens or RICO claims arising from allegations of retaliation  relating to attempts to extracting an easement across private property.

Federal Election Comm’n v. Wisconsin Right to Life, Inc., upholds the District Court’s decision, made on remand from this court, that §203 of the Bipartisan Campaign Reform Act of 2002 was unconstitutional as applied to certain advertisements.

Morse v. Frederick, is the “Bong HiTS 4 Jesus case.”  The Court ruled in favor of the school, reversing the Ninth Circuit.     

Scotusblog reports that Thursday is expected to be the last day of this 2006 term, which would mean that certain long awaited opinions involved school assignments will be released then, along with the Leegin Creative anti-trust and Panetti death penalty cases.

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Another victory for companies who face shareholder suits was handed down yesterday, following up on the Credit Suisse ruling earlier this week. 

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the U.S. Supreme Court clarified pleadings requirements set forth in the Private Securities Litigation Reform Act ( PSLRA). The PSLRA heightens the pleading requirements for suits alleged fraud under the §10b of the Securities Exchange Act or  Exchange Commission Rule 10-5, requiring particularity for claims of fraud and scienter.  Specifically, it  requires that plaintiffs “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”

The Court held that these standards require a district court to weigh the competing inferences of fraud and innocence arising from the alleged facts, and that the inference of scienter must be “cogent and at least as compelling as any opposing inference of nonfraudulent intent.” In making such comparison, the district court may consider “omissions and ambiguities” as weighing against scienter.

The opinion was authored by Justice Ginsberg, with five justices joining. Justice Scalia concurred in the outcome, but asserted that a “strong inference” would require the any inference of scienter to be more compelling than that of no fraudulent conduct. Justice Alito also concurred, arguing that the weighing of facts should include only those facts alleged with particularity. Justice Stevens dissented, urging that a “probably cause” standard like that employed in criminal cases be the test.  

As ever when it happens, I find myself amazed to be in agreement with Justices Scalia (and now Alito) on anything. However, it does seem that if we accept that the intent of the PSLRA was to limit opportunistic suits, the “strong inference” should outweigh other possibilities, and specific facts, rather than conclusory allegations, should be what determined the inferences. 

However, with the frank acknowledgement that “omissions and ambiguities” are relevant to determining the relative weight of the inferences, this opinion does offer defendants some real teeth.

Blawgletter predicts the ruing will  "enhance the importance, and improve the quality, of story-telling in securities fraud pleadings."    Telling the client's story  is a concept always near and dear to my heart.  I may have to think about a seminar on tellig the story in pleadings.

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In Brendlin v. California, the U.S. Supreme Court held that a passenger is seized by a traffic stop.  Because the passenger is seized, the passenger has standing to challenge the validity of the stop.  Here, the State of California conceded there were insufficient grounds to justify the stop

Writing for a unanimous court, Justice Souter noted that the typical passenger would not feel free to leave without permission while police are investigating, even if the traffic stop was solely instigating by the manner of driving.  A seizure requires actual submission. A passenger submits to the seizure by failing to leave the scene after the vehicle is halted.

The Court’s conclusion is consistent with the conclusion of the nine circuits, including the Ninth, to have addressed the issue.   The Court notes that while it overrules the California Supreme Court, nearly all other states to have addressed the issue have also determined that a passenger is seized by a traffic stop. Only Colorado and Washington had taken California’s view of the matter.

The Court noted that to hold that a passenger is not seized by a traffic stop would be “a powerful inventive to run the sort of  ‘roving patrols’ that would still violate the driver’s Fourth Amendment rights.”

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Scotusblog reports that the U.S. Supreme Court issued three opinions today:

In Credit Suisse Securities v. Billing, the U.S. Supreme Court ruled that antitrust laws do not apply to the process of selling stocks after the initial offering.

In Brendlin v. California, the U.S. Supreme Court ruled unanimously held that the a passenger in a car has standing to challenge the legality of the stop of the car.

In Powerex Corp. v. Reliant Energy Services, the Court held the Ninth Circuit had no jurisdiction to hear an appeal of whether a foreign company is entitled to have to claims against it heard in federal, rather than state court.

More after the opinions become available.

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In Davenport v. Washington Ed. Assn., the U.S. Supreme Court held that “opt-in” schemes to permit unions to use fees paid by non-unions members for political purposes are constitutional.  The case involved fees paid by non-union members to the Washington Education Association, a union representing education workers in the State of Washington.  Through payroll deduction, it collects fees from nonmembers. , and used approximately $10 of those fees per contributor for political activity.  The Washington Supreme Court  determined the statute violated the first amendment, as it interfered with the union’s right of expressive association.

The U.S. Supreme Court reversed, finding that because the state had the power to determine the union’s ability to collect fees from nonmembers in the first place—in essence, a power to tax government employees—that right necessarily included the ability to place limitations upon the use of such fees.  Unions have no constitutional right to fees from nonunion members. The statute’s does not restrict “how the union can spend ‘its’ money”; it places a condition on “the union’s extraordinary state entitlement to acquire and spend other people’s money.”

The decision does address not the constitutionality of opt-in requirements for private-sector unions that  “collect agency fees through contractually required action taken by private employers rather than by government agencies” and therefore present “a somewhat different constitutional question.”

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In a 7-2 decision, in Permanent Mission of India to United Nations v. City of New York, the U.S. Supreme Court held the Foreign Service Immunities Act (FSIA)does not immunize foreign states from lawsuits to declare property taxable.  The FSIA asserts that foreign governments are immune from suit, save for certain excepted situations. Once such exception is where the suit is to determine “rights in” immovable property owned by the foreign state.  The Court determine that a suit to determine the validity of a lien involves “rights in” the property, as a lien limits an important property right – that of conveyance.  Justice Thomas authored the decision; Justice Stevens authored a dissent, in which Breyer joined.

“Foreign Service Immunities Act” FSIA

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YEsterday, in Bowles v. Russell, the U.S. Supreme Court, in a 5-4 decision authored by Thomas, held to its longstanding rule that deadlines to perfect appeals are jurisdictional. 

The district court had given an extension of the deadline to file an appeal of a denial of a petition for habeas. The rules permit a 14 day extension, but the deadline for filing in the district court’s order granting an extension was for 17 days. The habeas petitioner filed his appeal on the 16^th day. The 6^th Circuit dismissed the appeal and the Supreme’s affirmed.

Such a decision is not generally controversial, as the rule is, indeed, a long-honored one. Moreover, the time limitations are set by statute, 28 U.S.C. 2107, as well as by court rule. FRAP 4. A statutory deadline has jurisdictional significance.

However, Souter’s dissent points out the Court’s recent attempts to clarify mandatory and nonmandatory jurisdictional requirements.   Only last year, the Court had held—unanimously—that a statutory time limitation has jurisdictional significance only if Congress designates the limitation as jurisdictional. Arbaugh v.Y & H Corp., 546 U.S. 500, 520 (2006). Souter states:

In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated, and unanimous statements of all participating Justices of this Court.

Souter also notes the irony that the recent decisions are “jettisoned in a ruling for which the leading justification is stare decisis."  Souter argues that a nonmandatory jurisdictional requirement would allow the Court to give equitable relief in”bait and switch” situations like that presented here.

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It’s been a busy day for opinions. I’ll have more description of today’s rulings later, but meanwhile, here are links:

The Nevada Supreme Court issued two opinions:

• Johnson v. State
• Schmidt v. Washoe County

The Ninth Circuit issued one opinion, an immigration appeal matter:

Goel  v. Gonzales

The U.S. Supreme Court issued three opinions,

Bowles v. Russell

Permanent Mission of India to United Nations v. City of New York

Davenport v. Washington Ed. Assn.

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In U.S. v. Savage, the Ninth Circuit held that a state escape conviction was a crime of violence for sentence enhancement purposes.  Using a modified categorical approach, the Court found defendant’s allocution included an admission that he had escaped from a jail.

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In Fry v. Pliler, the U.S. Supreme Court upheld a Ninth Circuit ruling denying habeas relief where no substantial and injurious effect was shown from the exclusion of a witness’ testimony.

The Court held that the Brecht “substantial and injurious effect” standard applies in all habeas cases, regardless of whether the constitutional error in a state trial is recognized for the first time in the habeas proceeding, and the state courts never considered the error under the Chapman standard.

Justice Stevens concurring in part and dissenting in par, agreed that Brecht is the proper standard for cases such as Fry’s. However, he would have reversed the decision below on the ground that the decision to exclude the witness’s testimony did have a “substantial and injurious effect.”

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In Beck v. PACE Int'l Unionfound nothing in the text of ERISA or the legislative history to support a claim that Congress intended merger to be a permissible means of termination.,  the U.S. Supreme Court held that merger was not a permissible form of termination for single-employer defined benefit plans under ERISA. ERISA permits plan termination only the purchase of irrevocable commitments from an insurer or by providing all benefits under the plan.  The Court overturned the Ninth Circuit’s ruling that the residual provision in 29 U.S.C. 1431(b)(3)(A)(ii), which would permit annuitization, should be construed to permit merger, as such interpretation would be contrary to the interpretation rendered by the Pension Benefit Guaranty Corporation(PBGC).  The Court has traditionally deferred to the PBGC.  Moreover, applying simple rules of statutory construction, the Court

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This week, in Long Island Care at Home v. Coke, the U.S. Supreme Court held that home health workers are not entitled to overtime pay under federal wage laws.  The Court held that in enacting amendments to the Fair Labor Standards Act (FLSA), Congress left the definition of who falls within exemptions to the determination of the Department of Labor in the regulations it enacts to carry out the FLSA.  The Department had determined that home health workers are exempt from the wage protections regardless of who pays the worker’s wages.  Accordingly, the home health worker, who was paid by a third party to act as a companion to elderly and infirm men and women, was not entitled to overtime pay.

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In US v. Atlantic Research Corp, the U.S. Supreme Court held that a private party that cleans up a contaminated site may sue other potentially responsible parties for recovery of costs incurred, regardless of whether the private party was sued under the clean up laws.  The Court held that 42 U.S.C. § 9607(a), which allows a claim for reimbursement of voluntarily incurred expenses, does not conflict with § 9613(f), which allows suits for contribution after the plaintiff was sued for clean up.

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The U.S. Supreme Court issued five opinions today; remarkably, all were unanimous. Each will be discussed later. Meanwhile, here are the links to the opinions:

Watson v. Philip Morris, (Breyer; reversed and remanded)

Long Island Care at Home v. Coke (Breyer; reversed and remanded)

US v. Atlantic Research Corp. (Thomas; affirmed)

Beck v. PACE Int'l Union (Scalia; reversed and remanded

Fry v. Pliler (Scalia; affirmed, with a partial concurrence by Stevens)

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In Erickson v. Pardus, the U.S. Supreme Court reversed the dismissal of a prisoner’s § 1983 action arising from his removal from treatment program for hepatitis C. The 10^th Circuit had affirmed the dismissal, finding the prisoner’s allegations too conclusory to state a claim.  In the per curiam decision, the Supreme Court held the allegations that the prisoner had just started a treatment program that was to last one year, had been removed from the program in a disciplinary action, and that such removal endangered his life was sufficient to state a claim.  The court noted the fact that the prisoner proceeded pro se was significant in determining the sufficiency of the allegations.

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In Uttecht v. Brown,  the U.S. Supreme Court reversed the Ninth Circuit, and reinstated a death penalty conviction. The Court found that exclusion of a juror who expressed ambivalent views of the death penalty was not improper.  Writing for a 5-4 majority, Kennedy focuses on the deference to be given to a trial court in reviewing the demeanor of a juror during voir dire.  Although neither state nor federal law required an objection to removal of the juror to preserve the error, Kennedy discussed how the lack of an objection resulted in a record with little factual content for the Court to review.

Dissents by Stevens and Breyer argue that the failure to object should be irrelevant, where such objection is not required to preserve the error.

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In Sole v. Wyner, the U.S. Supreme Court held thata party who succeeded in gaining a preliminary injunction, but later lost on the merits of the case, was not a prevailing party entitled to attorney fees under 42 U.S. § 1988.   Writing for the unanimous court, Justice Ginsberg, noted that prevailing party status is only conferred a party has succeeded in obtaining a “material alteration of the legal relationship of the parties.” At issue here was the validity of law banning nudity; at the conclusion of the case, the law was deemed valid, resulting in no “enduring change” in the parties’ status.   The summary judgment superseded the preliminary judgment order.

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Yesterday, in Ledbetter v. Goodyear Tire & Rubber Co.,  the U. S. Supreme Court held that continuing effects of discriminatory conduct cannot be used to extend the deadline for the filing period for a claim of gender discrimination under Title VII. Ledbetter claimed that Goodyear, because of her gender, had given her poor salary performance reviews over an extended period of time. Salary decisions were based upon these reviews, and ultimately, she came to receive a much lower salary than comparable male employees. However, she did not file a formal charge with the EEOC until July 1998, a few months before her retirement. The jury found the salary reviews had been discriminatory, and awarded her backpay and damages. The 11th Circuit reversed, finding that damages could not be based upon salary decisions made before the 180 days preceding her EEOC charge.  Ledbetter had not alleged any discriminatory decisions actually made during the charging period, and therefore, her claim was time-barred.

Holding that “current effects alone cannot breathe life into prior uncharged conduct,” the Supreme court affirmed the 11^th Circuit. The court rejected the claim that each paycheck, the amount of which depended upon those previous salary decisions, constituted a fresh violation. While such an approach had been mentioned in Bazemore v. Friday, 470 U.S. 375 (1986), there the intentionally discriminatory conduct causing the differing pay occurred prior to the date Title VII was enforceable against that employer. In such circumstances, the continuing effects could be presumed to be deliberate as well. Ledbetter, however, had never alleged that Goodyear had intentionally instituted its performance based salary scheme in order to discriminate on the basis of sex, nor did she alleged that the system was purposefully used to discriminate against her. Instead, she alleged that Goodyear’s agents had discriminated against her in the past, and she experienced continuing effects from that previous, uncharged conduct.

The court noted that the filing deadline is intended to protect employers from decisions made long before, for which the passage of time could diminish the ability to marshal evidence necessary to determine whether the past conduct had been discriminatory or not.

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In Bell Atlantic v. Twombly, the U.S. Supreme Court in a 7-2 held that mere allegations of parallel business conduct unfavorable to consumers are insufficient to state a claim for conspiracy to violate antitrust laws. A plaintiff must allege " enough factual matter (taken as true) to suggest and agreement was made."  Justice Souter delivered the opinion.  Justice Stevens dissented, with Justice Ginsberg joining, save for part IV.

Defense counsel (a group in which I am often, but not always, included) must applaud the majority's insistence upon something more than the speculative and conclusory statements that so frequently  form the basis of complaints.  Indeed, the majority finally lays to honorable rest language from Conley v. Gibson,  35 U.S. 41 (1957) that has too often been used to justify allowing vague, conclusory and speculative complaints to proceed.   

In Conley, Justice Blackmun had cited  "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief."  Many courts subsequently read that language to allow any statement in the complaint that reveals the theory as sufficient to state the claim, regardless of he sufficiency of the factual allegations offered to support the theory. 

The Bell Atlantic majority asserts that this phrase from Conley "is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated, it may be supported by showing any set of facts consistent with the allegations in complaint."

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In Roper v. Weaver, the Court dismissed the writ of certiorari, allowing the Eighth Circuit’s vacation of the death penalty imposed in this case to stand.  The Court’s dismissal of the writ was based upon the recognition that the district court had erroneously dismissed the condemned’s habeas petition, filed prior to enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). The Writ had originally been granted to review whether the prosecution’s penalty phase closing argument was unfairly inflammatory. The Court noted that, telying on the pre-AEDPA standard of review, the Eighth Circuit granted federal habeas relief in two other cases where such argument had beenused, one of which was the case of the condemned’s codefendant. 

In Office of Sen. Mark Dayton v. Hanson, the Supreme Court found it had no jurisdiction to review the D.C. Circuit’s affirmance of the denial of a motion to dismiss on grounds of immunity.  The Supreme Court has jurisdiction to hear appeals of interlocutory or final decisions on the constitutionality of a statute. However, nothing in the lower court decisions indicates that constitutionality was the basis for the decisions.

In Hinck v. United States, the U.S. Supreme Court held that the U.S. Tax Court has exclusive jurisdiction to hear claims for taxpayer relief from IRS assessments of interest on taxes due.

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In Winkelman v. Parma City School Distr., the U.S. Supreme Court held the Individuals with Disabilities education Act (IDEA) confers specific rights upon parents, permitting parents to proceed pro se in proceedings brought under the statutory scheme.  Scalia, joined by Thomas, dissenting in part, agreed that the IDEA grants rights to parents to proceed pro se when they seek reimbursement of educational expenses or redress of violations of their own procedural rights, but not when they seek a determination that their child has no received a free appropriate public education (FAPE).

The Court’s ruling resolves a split among the circuits. However, the Ninth Circuit had not ruled  directly on this issue.  

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In Los Angeles County v. Rettele, the U.S. Supreme Court reversed the  Ninth Circuit’s decision per curiam. The facts giving rise to the § 1983 claim involved the execution of search warrant in which the searched home had changed ownership. The new owners were persons of a different race than the suspects being sought. The execution of he warrant occurred at night, and the couple was made to stand for two to three minutes unclothed while the officers searched the home. The Ninth Circuit had held that the discovery of the different race of the home’s occupants should have immediately caused the officers to stand down. The Supreme Court held that the presence of person of different race than those being sought did not necessarily indicate the suspects could not be present. The Court noted that the couple was allowed to clothe themselves once the officers had assured no weapons were at hand, and the officers left the home within fifteen minutes of entry, indicating that the detention was no unreasonable.

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A transcript of Former U.S. Supreme Court Justice Sandra Day O’Conner’s interview on Fox New Sunday is available here.   O’Conner explains she feels such a web site is needed because civics is no longer required in the curriculum of many high schools. She states “hope that we make this so interesting and so informative and engaging that a new generation is going to learn about how our courts work.”

Noting the recent celebration of the 400^th anniversary of the Jamestown settlement, O’Conner stated her belief that one of the most important things the settlers at Jamestown did was import the British system of common law.

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The Ninth Circuit ruling in Doe v. Kamehameha Schools will stand, as the parties have settled prior to a ruling by the U.S. Supreme Court.  The Ninth Circuit ruled in an 8-7 decision that the school’s admission policy favoring native Hawaiians did not violate federal law. The plaintiff had sought review by the Supreme Court, but the cert petition has been dismissed due to the settlement. The terms of the settlement have not been disclosed.

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The U.S. Supreme Court has released proposed revisions to its rules. The proposed adoption  date is June 25, 2007, with the revisions to take effect August 1, 2007. Among the proposed changes are a doubling of the fee for admission to practice before the Court; a requirement that merits briefs be submitted in both paper and electronic form; imposition of word, as well as page limits; and a change in deadlines to request additional or divided argument time. 

Click here for the text of the proposed revisions.

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In Schriro v. Landrigan, the U.S. Supreme Court held that the district court did not abuse its discretion in denying an evidentiary hearing of the defendant’s claim he had received ineffective assistance of counsel in the penalty phase of his trial.

The record reflected that Landrigan interrupted attempts to present mitigating evidence, and asked his wife and mother not to testify. The Ninth Circuit had held, en banc, that these instructions during the penalty phase could not excuse a failure to investigate mitigation prior to trial.

The Supreme Court, with Thomas authoring the opinion, held that Landrigan’s instructions against presenting mitigating evidence prevented any prejudice arising from a failure to investigate. The Ninth Circuit’s reasoning that the record did not establish that  Landrigan’s instruction that no mitigating evidence be presented was “informed and knowing” was rejected as contradicted by the record, although Thomas also noted that the Supreme Court had never imposed an “informed and knowing” standard upon a defendant’s decision to present evidence.  Roberts, Scalia, Kennedy and Alito joined in the opinion.

Stevens drafted the dissent, joined by the remainder of the court. The dissent noted that there has never been disagreement that defense counsel’s failure to obtain thorough psychiatric review was below the standard of representation. Stevens explains that the failure of counsel to investigate mitigation meant that Landrigan did not learn of his psychological condition until year later, even though he may have known of individual facts, such his mother’s use of alcohol during pregnancy, her subsequent abandonment of him, and the childhood mistreatment his suffered.  

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A taxpayer who disputes a tax levy must make a claim for wrongful levy within nine months, and cannot seeks a refund for taxes erroneously paid for the levy.  In EC Term of Years Trust v. IRS, the Court unanimously upheld the IRS code's separate deadlines for challenges for differing disputes. Justice Souter authored the opinion.

This opinions resolves a conflict between circuits on this issue.  The Court upholds the Fifth Circuit ruling that challenging a wrongful levy is the soles means of redress.  The Ninth Circuit had held that seeking a refund was another available remedy. 

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In a 6-3 decision, the Court upheld a municipal ordinance that required trash to be delivered to a publicly operated processing plant.  Essentially creating an exemption from the dormant commerce clause for publicly owned facilities, the plurality in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority states that it does not make sense to subject laws favoring local government with the strict scrutiny that would be required had the processing plant been privately owned.   

Roberts drafted the plurality opinion, with Scalia and Thomas drafting concurrences. Alito drafted the dissent.

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In KSR International Co. v. Teleflex Inc,  the Court issued a unanimous ruling, authored by Justice Kennedy, which may make it easier for patents to be denied on the grounds that the innovation is too obvious to warrant patent protection.  

The court rejected the test to determine obviousness developed by the federal circuit, known as the “teaching, suggestion or motivation” test (“TSM”).  Under TSM, a patent is only proved obvious if the prior art, the problem’s nature or the knowledge of a person having ordinary skill in the art reveal some motivation or suggestion to combine prior art teachtings.” During argument, Justice Scalia had called the the Federal Circuit’s test as “gobbledygook,” while Chief Justice John Roberts Jr. referred to it as “worse than meaningless.”   Kennedy’s opinion merely calls TSM narrow and rigid, although its elements  can remain a portion of a more helpful, flexible test that allows a common sense approach to determine whether the innovation was obvious.

The Court’s test focuses on the marketplace, and what design variations might be prompted by market demand. A thoughtful examination of the new test appears at Scotusblog.

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The U.S. Supreme Court took a giant leap into the 21^st century today, issuing an opinion which included a citation to a URL, located on the court’ own website, where a video tape of the car chase in question in the opinion can be viewed in a RealPlayer video file.

The 8-1 decision in Scott v. Harris, authored by Justice Scalia, notes that ordinarily in an appeal of the grant of summary judgment, the Court would accept the Plaintiff’s version of events. However, the existence of the video eliminated he factual dispute, and the court makes he video available to prove it. Justice Breyer, in his concurring opinion, states,                "[b]ecause watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion . . .  and watch it."

Oh - and the opinion also includes this straightforward rule: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

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Prospective changes to Federal Appellate, Bankruptcy, Civ Pro and Crim Pro Rules

The U.S. Supreme Court todaysent its amendments of the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure. Unless Congress objects, the amendments take effect December 1, 2007.

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In three 5-4 decisions, each with Roberts, Scalia, Thomas and Alito dissenting, the U.S. Supreme Court today overturned three Texas death penalty cases. In each of the cases, the defendant had been convicted through the use of jury instructions which automatically imposed a death sentence if the jury returned affirmative answers to “special issue” questions relating to the whether the murder had been deliberate and whether the defendant posed a danger to society. In 1989, the U.S. Supreme Court ruled this instruction scheme unconstitutional where the jury had no ability to consider evidence of mitigation. Penry v. Lynaugh, 492 U.S. 392 (1989)(Penry I). Today’s decisions reveal the difficulty the Texas Court of Criminal Appeals and the Fifth Circuit have in interpreting and properly applying Penry I and its progeny.

Smith v. Texas, is the second time the Court overturned the death penalty imposed on Smith. The Texas Court of Criminal Appeals had reinstated the death penalty after applying a state law harmless error analysis. The lower court found that Smith had not preserved his jury instruction issue, and accordingly, had to show egregious error to prevail.   The U.S. Supreme Court held the lower had misinterpreted the Supreme Court’s previous ruling, which had found the juror instructions used in his trial unconstitutional, which error had not been cured by other instructions. The court made clear that Smith is entitled to relief under federal law.

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Read David J. Garrow’s opinion of the Carhart majority opinion’s description of assorted abortion techniques in Sunday’s New York Times: "Don't Assume the Worst: Pro-choice doctors -- and their lawyers -- must read the Supreme Court's decision as an explicit approval of all abortion procedures save one."

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A biography of Justice Clarence Thomas has just been released from Doubleday.  The Washington Post offers an adaptation, the first chapter, and a review of Supreme Discomfort:The Divided Soul of Clarence Thomas, by 
Kevin Merida and Michael Fletcher.  

Additional reviews and articles may be found at Newsweek, Kirkus Reviews, and Publishers Weekly. 

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In a week dominated by victories for federal regulation, the Court issued its 5-4 decision in Gonzales v. Carhart, upholding the federal ban on so-called "partial birth" abortions.  The decision overrules the Eighth and Ninth Circuits, who had each ruled the Act's lack of an exception for the preservation of the woman's health rendered the Act unconstitutional.   Justice Kennedy, writing for a majority predictably comprised of Scalia, Thomas, Roberts and Alito, stated the challengers  "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases."  The ruling rejects the "undue burden" test for facial challenges to abortion restriction statutes.  However, Justice Kennedy stated the "Act is open to an as-applied challenge in a discrete case."

In her dissent, Justice Ginsberg called the ruling alarming as it "tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists."  

How Appealing offers this selection of news reports regarding the decision.

SCOTUSBlog presents comments on the decision from assorted perspectives, including  The Thomas More Society, and The Center for Reprouctive Rights.  

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In yet another victory today for federal regulation, in Zuni Public School District No. 89 v. Dept of Education, the U.S. Supreme Court upheld the Department of Education's method of calculation for determining when states had equalized expenditures for public school spending under state programs, finding the agency's method within Congressional intent.  At issue was approximately $20 million in funding per year the New Mexico schools claimed it was due for its Native American pupils.  

 Scalia bitterly dissented, castigating the decision as "the elevation of judge supposed legislative intent over clear statutory text.""

The Volokh Conspiracy makes note of the Breyer's odd structure in his majority opinion's odd structure and the comments thereon by two members of the majority.

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The U.S. Supreme Court’s opinion in Watters v. Wachovia Bank N.A. (No. 05-1342) holds that state regulation of national banks and their subsidiaries yields to federal regulation.   Scotusblog offers a round-up of news reports on the 5-3 decision authored by Ginsberg. 

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