The Week Ahead
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6. On Friday, the Court is scheduled to release another round of summer orders.
August 2008 Archive
Everything published in August 2008, most recent first.
Petition Preview: Enya, the Death Penalty, and Video Victim Impact Evidence
Nearly two decades ago, in Payne v. Tennessee (1991), the Supreme Court held that the Eighth Amendment did not bar the introduction of “victim impact evidence” at the penalty phase of capital trials.
New DTA, habeas troubles
The Justice Department, frustrated in its ability to get free of one level of court review of Guantanamo Bay detainee cases, and unable at the other level to keep to is own schedule for turning out reports to justify detention, has taken two significant steps to try to cope.
New developments on detainees
Two significant new developments in the continuing courthouse battles over the Guantanamo Bay detainees are discussed in the post that can be found here.
UPDATE: Bismullah effect spreading?
UPDATE Even as the Justice Department makes plans to try to get higher courts to overturn a broad judicial mandate to produce what it knows about Guantanamo Bay detainees (discussed in the post just below, updated Friday), it is now facing the prospect that the obligation may also extend to detainees’ cases in U.S. District Court.
U.S. opposes review of wetlands case
The Justice Department on Friday urged the Supreme Court to leave intact a federal appeals court ruling on the scope of the government’s authority to protect wetlands from pollution — in this case, discharges from home septic tanks.
U.S. to try again to curb DTA review
UPDATE Friday afternoon In a move sure to draw government opposition, lawyers for seven Guantanamo Bay detainees asked the D.C. Circuit Court on Friday to order the Justice Department and Pentagon to produce within ten days the complete files, including any secret data, that it has about those individuals.
An easier standard for detention
NOTE: In a hearing Wednesday on procedural issues in detainee cases in his Court, U.S. District Judge Richard J. Leon expressed concern about the need to have most of the hearings in those cases behind closed doors, because of the use of classified evidence.
Analysis: The meaning of Munaf
Analysis When the Supreme Court on June 12 found a new constitutional right for Guantanamo Bay detainees, another decision on the same day had little chance of being widely noticed even though it, too, involved detainees’ rights.
Circuit Court holds firm on DTA review
UPDATE 3:30 p.m. There have been other developments in detainees’ cases; they are discussed in the continuation of the post below. ——————- The D.C. Circuit Court, turning aside a Justice Department plea to cut back sharply on its review of military decisions to detain individuals at Guantanamo Bay, has put its tough review regime back into effect.
The bill for Heller: $3.5 million
Lawyers who won the historic Second Amendment gun rights case in the Supreme Court — District of Columbia v. Heller (07-290) — on Monday asked a federal judge to award them more than $3.5 million for attorneys’ fees, plus $13,215.30 for expenses and court costs.
U.S. seeks clarity on Rapanos ruling
The U.S. government, arguing that the lower courts have fallen into confusion and disagreement over federal power to protect wetlands, has urged the Supreme Court to make clear what it meant in the “highly fractured” ruling two years ago in Rapanos v. U.S. (04-1034) — a significant decision on the scope of the Clean Water Act.
The Week Ahead
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.
Detainee hearings start Oct. 6
In late 2001, just weeks after the government first started taking prisoners in the “war on terrorism,” Bush Administration officials chose Guantanamo Bay as the place to hold those detainees in order to keep them beyond the reach of U.S. courts and away from any terrorist activity.
Detainee torture issue taken to Court
UPDATE Monday a.m. The case of Rasul v. Myers has now been assigned docket number 08-235.) In the first move to put claims of torture of Guantanamo detainees before the Supreme Court, lawyers for four Britons formerly held at the Navy prison in Cuba on Friday asked the Justices to overturn a federal appeals court ruling that they had no right to sue Pentagon officials and military officers over the issue.
SCOTUSwiki Preview: Summers v. Earth Island Institute
Below, Jonathan Ross previews next term’s Summers v. EII (No. 07-463). Jonathan was an ’08 summer associate at Akin Gump and is a student at Harvard Law School.
UPDATE: Souter refuses to order ballot access
UPDATE 5:10 p.m. Supreme Court Justice David H. Souter, in a brief order Wednesday afternoon, turned down a request that would have given an independent candidate in Maine for the U.S. Senate a place on the Nov. 4 ballot for that office.
UPDATE: State sees problem in ballot exclusion
UPDATE 6:05 p.m. State officials in Maine told a Supreme Court Justice Tuesday that the state’s interests in running elections do not require “a sweeping remedy” that would have the effect of keeping an independent candidate for the U.S. Senate off the Nov. 4 election ballot.
Analysis: Escalating the Parhat case
Analysis In the annals of the ongoing constitutional battle in America’s courts over the “war-on-terrorism,” Shafiq Rasul, Yaser Esam Hamdi, Salim Ahmed Hamdan and Lakhdar Boumediene already have made history — especially in the Supreme Court.
No action on death penalty dispute
The Supreme Court issued its second round of summer recess orders Monday, but no action was taken on a plea by the state of Louisiana to reconsider the June 25 decision in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of raping a child.
Souter probes Maine ballot access issue
Supreme Court Justice David H. Souter has asked the state of Maine and the state Democratic Party chairman to supply their views on the right of an independent candidate for U.S. Senate to have his name on the November election ballot.
Dellinger, Gura look back on DC v. Heller
Last month, the Constitutional Sources Project and the Patton Boggs Foundation held a panel discussion on District of Columbia v. Heller and its ramifications.
ABA Review: the Supreme Court’s OT07 Criminal Docket
As we mentioned here earlier, several panels at this year’s meeting of the American Bar Association looked back at the recently completed Supreme Court term. One of those panels looked back specifically at the OT 2007 criminal docket, a subject we’ve also previously looked into.
The Week Ahead
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6. The petitioner’s merits brief is due Thursday in Peake. v. Sanders (07-1209) and Friday in Fitzgerald, et vir v. Barnstable School Committee, et al.
Court declines to rule on Exxon interest
The Supreme Court refused on Tuesday to decide whether the fishermen and others who sued over the Exxon Valdez oil spill are entitled to collect interest on the punitive damages award they won — an award that was sharply reduced by the Court.
CIA leak case on way to the Court?
In a ruling that is going to be challenged, perhaps in the Supreme Court soon, the D.C. Circuit Court on Tuesday denied any remedy to a former Central Intelligence Agency officer and her husband in the famous leak case against Vice President Dick Cheney and two former top White House aides — Karl Rove and I. Lewis Libby.
The Week Ahead
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6. Petitioners’ merits briefs are due Monday in Knowles v. Mirzayance (07-1315), Wednesday in Philip Morris USA, Inc. v. Williams (07-1216), and Thursday in Haywood v. Drown (07-10374).
Analysis: What did Boumediene strike down?
Analysis The Supreme Court, in moving in June to clarify the legal rights of Guantanamo Bay detainees, made this explicit comment in the main opinion in Boumediene v. Bush (06-1195): “The only law we identify as unconstitutional is MCA Sec. 7, 28 USCA 2241(e)(Supp. 2007).” The MCA is the Military
New move to keep control on detainees
Faced with the prospect of losing control — even temporarily — over the fate of detainees at Guantanamo Bay, the Justice Department on Friday started the process on a new appeal to the D.C. Circuit Court — its second appeal in the detainee cases in the past two weeks.
Hawaiian school’s admission fight back in court
The six-year running battle over the admissions policy of a highly regarded trio of private schools in Hawaii — the Kamehameha Schools — is back in the courts, with one side specifically aiming for an ultimate test in the Supreme Court.
UPDATE: Execution of Honduran allowed
UPDATE 4:30 p.m. Without recorded dissent, the Supreme Court on Thursday afternoon refused to delay the execution in Texas of a Honduran for a 2001 murder in Arlington, Texas. The Court’s order (found here) also denied review of Heliberto Chi’s appeal.
Hamdan sentenced to 5 1/2 years
Salim Ahmed Hamdan, the Yemeni national convicted on Wednesday by a military commission on charges of providing support to terrorism, was sentenced by the same jury on Thursday to 66 months in a detention facility at Guantanamo Bay, according to news accounts.
Commentary: Medellin, Kennedy and the Meaning of Silence
Commentary Many thousands of words about the death penalty have been written or spoken to or by the Supreme Court in recent months, but in the past few days the Court — supposedly on its summer break — has had to think hard about the meaning of silence.
Supreme Court Panels at ABA Conference
Those attending the American Bar Association’s annual meeting in New York later this week may be interested in attending the following Supreme Court-related panels: “A Review of the U.S. Supreme Court’s 2007-2008 Term: A Panel Discussion,” Friday from 7:45 to 9:30 a.m. at New York University School
Hamdan convicted in split verdict
In the first trial by a U.S. military commission in more than 60 years, a jury of six officers on Wednesday reached a split verdict of guilty and acquittal in the case of Salim Ahmed Hamdan, according to news accounts from Guantanamo Bay.
UPDATE: Medellin executed as Court refuses delay
FINAL UPDATE 11:15 p.m. Splitting 5-4, the Supreme Court refused Tuesday night to delay the execution in Texas of Mexican national Jose Ernesto Medellin. The majority’s unsigned opinion, and dissents by each of the other four Justices, can be read here.
Texas asks no delay of execution
The state of Texas urged the Supreme Court on Monday to allow it to go ahead on Tuesday with the execution of Mexican national Jose Ernesto Medellin, arguing that he has several times received all of the review of his case that American or international law requires.
Government resists detainees in U.S.
In a new plea in D.C. Circuit Court, the Justice Department on Monday asked a three-judge panel to make clear that it has not authorized the move to the U.S. mainland of any detainee now held at Guantanamo Bay, Cuba.
The Week Ahead
The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6. On Monday, jurors are expected to hear closing arguments and begin deliberating in the war crimes trial of Salim Ahmed Hamdan, Osama bin Laden’s former driver, at Guantanamo Bay.
Analysis: Core of the habeas dispute
Analysis The second round of legal papers arguing how federal judges should probe Pentagon decisions to hold detainees at Guantanamo Bay strips the underlying dispute down to its core: what legal source governs that process?
Analysis: Is Procedure or Substance (or Both) at the “Core” of the GTMO Habeas Cases?
Lyle’s post below continues his indispensable series on the procedural disputes that the district court judges in D.C. are about to (begin to) resolve in the GTMO habeas cases.
Move to head off Medellin execution
FURTHER UPDATE 4:50 p.m. The Texas Court of Criminal Appeals has now refused to issue a stay of the execution and has dismissed the latest state court challenge. Links to the Court’s order, along with separate opinions, can be found here.
Tough stance on habeas cases
U.S. District Judge Emmet G. Sullivan, who has a reputation for being impatient with lawyers, is putting pressure on Justice Department attorneys to promptly work out ways for lawyers representing Guantanamo Bay detainees to have greater access to the prisoners.