You are probably familiar with the old paradox that a dropped object will never hit the ground because it keeps falling only half the remaining distance. Days like yesterday make me feel the same way: The court releases six big cases with lots of separate writings, plus seven new grants, and yet there's still more to go.

The Court covered a lot of ground yesterday. From now on, it is unconstitutional to make people talk about mushrooms unless they're political candidates, in which case they had better do whatever the FEC says; freelance writers' new best friends are law-firm summer associates with free LEXIS passwords; courts can review aliens' habeas claims before they're dispatched from the country, and (no surprise here) Indian tribal courts don't have jurisdiction over tort claims against state officials arising out of a search warrant for an off-reservation crime. (That was one of the 79 most important cases this year?) Today's update is longer than a Grateful Dead drum solo, so to avoid breaking the down arrow on your computer, you're going to want to just print this out now. Or delete it.

1. Federal Election Commission v. Colorado Republican Federal Campaign Committee, No. 00-191. The Colorado Republicans Federal Campaign Committee brought suit against the FEC claiming in relevant part that federal limits on hard-money expenditures by a political party in connection with a congressional campaign violated the First Amendment, even if that spending is coordinated with the candidate. Yesterday the Court rejected that argument by a 5-4 vote in an opinion written by Justice Souter, who in recent years has become the world's leading defender of Buckley v. Valeo (1976) (how could he not love it—it has 178 footnotes!), even as he continues to avoid saying precisely what level of scrutiny the case establishes. As far as the Federal Election Commission is concerned, Justice Souter has taken on the persona of that obscure Bond villain, the cheery, permissive, unthreatening "Dr. Yes." (Who was also perhaps the only one who wasn't incessantly stroking a cat. But I digress.)

Souter began the majority opinion by restating Buckley's familiar distinction between limits on contributions and political expenditures (Buckley upheld the former but not the latter, on the grounds that unlimited contributions are more clearly linked to political corruption and because expenditure restraints generally curb more expressive and associational activity). Thus, expenditure limits generally deserve closer scrutiny than contribution restrictions. However, the First Amendment line between contributions and expenditures is harder to draw when the expenditures are not necessarily independent of a candidate's political campaign. The basic idea is that expenditures coordinated with a campaign are basically disguised contributions to that campaign: If you spend money as the campaign wishes, you're effectively making a contribution to it. For that reason, the Federal Election Campaign Act treats coordinated expenditures as campaign contributions, and subjects them to the Act's contribution limitations. Because Buckley had treated some coordinated expenditures like contributions and upheld limitations on them, Souter framed the question as whether a political party is in a different position from other political speakers, making it entitled to greater scrutiny before its coordinated spending can be limited.

When you frame the question like that, you have to bet the speaker's going to lose, because you usually don't make a lot of headway asking for special treatment under the First Amendment. (As weird physics dude Fritjof Capra might have put it, "[I]f we ask a particle question, we will get a particle answer; if we ask a wave question, we will get a wave answer . . . ." But maybe that quote is left over from Oakland Cannabis.) The next 10 pages of the opinion were devoted to determining that political parties are nothin' special (at least for First Amendment purposes). Among other things, the Court rejected the notion that unrestricted coordinated spending is essential to parties' nature, since they haven't withered and died over the past 30 years, despite the fact that – with the exception of the 1996 Clinton reelection campaign – coordinated spending has been limited during that time. The Court also rejected the proposition that parties' strong working relationships with candidates and their unique ability to speak in conjunction with them entitled them to additional protection, saying that parties' position vis-a-vis candidates just made them uniquely able to circumvent contribution limits that apply to individuals and PACs. At the same time, rich individuals, media executives and PACs have the same ability as parties to speak loudly and work in conjunction with candidates, and yet they are subject to coordinated spending limits upheld in Buckley. So in short, Souter said parties were stuck with the same standard of review as everyone else.

Regular readers of this column know that constitutional review ordinarily comes in three sizes: Tall, Grande, and Vente. Justice Souter declined to say where Buckley fell in that framework during last Term's Nixon v. Shrink Missouri Gov't PAC (2000), and he was no more forthcoming this time around. Under Buckley's popeye-esque standard ("I yam what I yam"), the law passes muster if it is "closely drawn" to match a "sufficiently important" government interest in combating political corruption. (If that strikes you as unhelpfully circular, please take a number and get in line.) This law passed muster under that standard, because there was "significant evidence" (consisting of a declarations by various party officials) demonstrating how individual contribution limits would be eroded if coordinated spending were not limited. The Court rejected the Party's suggestion that circumvention would pose little risk of corruption, noting evidence that, even under present law, substantial donations "turn the parties into matchmakers whose special meetings and receptions give donors the chance to get their points across to the candidates," especially if that point is "Hi, I'm a successful dental appliance salesperson and I'd really like to have a picture taken with you." The opinion was joined by Justices Stevens, O'Connor, Ginsburg and Breyer.

The opinion concerned only so-called "hard money" and so does not necessarily apply to the "soft-money" campaign-finance reforms currently kicking around Congress. That said, the majority seemed to buy into the whole "money corrupts" thang pretty completely, which has to encourage the sponsors of that legislation.

In a completely unrelated story, the City of Indianapolis announced that in place of the "drug interdiction" program found unconstitutional in Indianapolis v. Edmond, it had set up roadblocks in high-risk neighborhoods to ensure that individual contribution limits in federal elections are not circumvented. The Seventh Circuit immediately found the program constitutional and held a parade in its honor.

Justice Thomas dissented, joined in full by Justices Scalia and Kennedy and for the most part by the Chief. Thanks to the Court's recent technology initiative (which consisted of hiring a single pimply 14-year-old to overhaul its computer systems), Justice Thomas' automatic precedent-questioning software (ThomBot 2000) is working flawlessly. ThomBot began the opinion by saying that Buckley should be overruled and that strict scrutiny should be applied to such cases. In a transparent effort to improve his standing in the answers to this year's Supreme Court Trivia Challenge, Justice Thomas wrote that he remained "baffled that this Court has extended the most generous First Amendment safeguards to filing lawsuits, wearing profane jackets, and exhibiting drive-in movies with nudity, but has offered only tepid protection to the core speech and associational rights that our Founders sought to defend." Scalia and Kennedy were on board for this much, but the Chief is evidently wants to stick with Buckley and opted out. In the rest of the opinion, which the Chief joined, Thomas argued that the provision in question sweeps too broadly, interferes with the party-candidate relationship, and has not been proved necessary to combat corruption.

==========

The Colorado Republicans decision is not a particularly important one, because of the marginal value in our constitutional framework of political speech. Like most Americans, the speech that matters most to me is Mushroom Speech, which the Court yesterday acted decisively to protect.

2. United States v. United Foods, Inc., No. 00-276. In 1990, having completely conquered poverty, drug abuse, spiralling healthcare costs, and environmental degradation, Congress cast around for a problem it had not yet eradicated. And so it passed the Mushroom Promotion, Research, and Consumer Information Act, which has been helpfully codified at Title 7 of the U.S. Code where there's no danger any sentient creature will ever accidentally read it. The Act authorizes the Secretary of Agriculture to establish a Mushroom Council to pursue the statute's goal, which is world domination by a race of killer mushrooms. Whoa! That was close. I just checked the statute and it turns out the goals of the statute are mushroom promotion, research and consumer information. To fund the Council's worthwhile programs, the Act allows it to impose mandatory assessments on handlers of fresh mushrooms. Most of the assessments were spent on the mushroom industry's well-known and widely imitated "Got Fungus?" generic advertising program.

Respondent United Foods is a large mushroom-handling agricultural enterprise run by members of an obscure religious sect that refuses to exalt any type of vegetable matter over any other. It refused to pay its mandatory assessments under the Act. The government brought an enforcement action against the renegade mushroom wranglers. The district court rejected United Foods' First Amendment argument and granted Uncle Sam summary judgment, pointing to the Supreme Court's 1997 decision in Glickman v. Wileman Bros. (in which the Court upheld against a First Amendment challenge agricultural marketing orders that, as a part of a larger regulatory scheme, required producers of certain California tree fruit to pay assessments for product advertising). The Sixth Circuit reversed, finding that "the mushroom business is entirely different from the collectivized California fruit tree business." For starters, I have to imagine that the mushroom business involves mushrooms.

The Supreme Court affirmed 6-3 in an opinion written by Justice Kennedy. From the outset, the Court dodged the question whether commercial speech should be accorded lesser protection than other types of speech, saying that even if it were, the assessments in question were invalid. After a few guarded statements that "the [First] Amendment may prevent the government from compelling individuals to assert certain views" and that "[t]here are some instances in which compelled subsidies for speech" violate the First Amendment, the Court concluded that this case was one of those instances where "mandated support is contrary to the First Amendment principles set forth in cases" such as Abood v. Detroit Board of Education (1977) and Keller v. State Bar of California (1990) "involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity."

The rest of the opinion was devoted to distinguishing this case from Glickman. The Court noted that in Glickman, the fruit producers were subject to much wider regulations and were "forced to associate as a group which makes cooperative decisions." That "mandated cooperation was judged by Congress to be necessary to maintain a stable [tree fruit] market. Given that producers were bound together in the common venture, the imposition upon their First Amendment rights caused by using compelled contributions for germane advertising was, as in Abood and Keller, in furtherance of an otherwise legitimate program." Now to an ignorant layperson, it may sound like Congress gets a pass if it combines compelled association with compelled speech. But the basic point was that Glickman was "part of a regulatory program that does not principally concern speech," whereas this program basically only involved forced advertising. The opinion was joined by the Chief and Justices Stevens, Scalia, Souter, and Thomas.

This case could mean serious trouble for the milk industry's knockoff "Got Milk?" program. Depending on the degree of cohesion and regulation in that industry, of course.

Justice Stevens wrote a two-paragraph concurrence to address a couple of Justice Breyer's points in dissent. But the bulk of his opinion simply to put his own spin on the majority's analysis. He wrote that compelled subsidies were permissible "when germane to a valid cooperative endeavor because the incremental impact of the liberty of a person who has already surrendered far greater liberty to the collective entity (either voluntarily or as a result of permissible compulsion) does not raise a significant constitutional issue if it is ancillary to the main purpose of the collective program."

Justice Thomas concurred just to reiterate his views that paying money for the purposes of advertising involves speech and that compelling speech raises First Amendment issues just as much as restricting speech. However, because of an apparent glitch in the ThomBot software, he stopped short of calling for the overruling of Glickman, noting just that it was "not controlling."

Justice Breyer dissented, joined in full by Justice Ginsburg, and in large part by his new best friend (make that fourth-best friend)*, Justice O'Connor. They found this program identical to that in Glickman in the ways that mattered: The marketing program imposed no restraint on the producers to communicate a separate message to the audience, didn't compel the producers to actually engage in speech (as opposed to just funding it) and did not compel the producers to endorse or to finance any political or ideological views. Second, he argued that the classification would survive the Court's standards for regulating commercial speech under Central Hudson. In a section of the opinion not joined by O'Connor, Breyer also argued that the assessment did not compel speech (just the payment of money), that it furthered speech interests by promoting truthful commercial information, and that it was merely a variety of economic regulation. Finally, showing a love for exhibits that makes him the natural heir of Justice Frankfurter's mantle, he attached a copy of the generic mushroom advertising in question, causing me to momentarily believe that the Court's Public Information Office had run out of white paper and had printed opinions on the back of the cafeteria menu.

*NB: All statistics are shamelessly expropriated from Tom Goldstein.

==========

3. New York Times v. Tasini, No. 00-201. Traffic in Manhattan suffered the worst gridlock seen in years Monday as freelance writers scrambled out of un-airconditioned fourth-floor walkups in the Village and Brooklyn to race to Lexus and BMW dealers. The Court held 7-2 that when a freelancer publishes an article or photo in a publication that later licenses it to an electronic database such as LEXIS/NEXIS or Westlaw, the author, and not the publisher, initially owns the copyright in the database version. For people in the publishing industry, this is a huge case; with their extra royalties, freelancers will be able to spend less of their time selling blood plasma and instead focus on cajoling Hana Hou (the official in-flight magazine of Hawaiian Airlines) into accepting their "humorous" articles on the Supreme Court.

Respondents are a group of freelance authors who have written articles published in the New York Times, Newsday, and Time. The print publishers licensed the right to copy and sell the article to LEXIS/NEXIS as well as a microfilming service that reproduces the articles in two ways: one product which is in text-only format ("NYTO") and in another image-based product that reproduces the whole page along with the surrounding articles, photos, and so forth (but does not reproduce the surrounding pages of the original periodical) ("GPO"). The print publishers did not first obtain consent from the authors to place those articles into these databases, and therein lies the rub. The authors sued, alleging their copyrights were infringed when the articles were placed on the electronic databases. The print publishers raised the privilege accorded collective-work copyright owners by §201(c) of the Copyright Act. Section 201(c) provides in relevant part:

The District Court for the Sovereign District of New York granted the print publishers summary judgment, but the Second Circuit reversed in an opinion by the great (and I do mean "great") Ralph K. Winter. Although there was no split on the issue, the print publishers prevailed on the Supreme Court to take the case, because of the central importance of New York to the publishing industry.

The Court affirmed in an opinion by Justice Ginsburg, which held that §201(c) does not authorize the copying at issue in this case. Where a freelance author has contributed an article to a collective work, copyright in that contribution initially vests in the author. Copyright in the collective work (the particular edition of the newspaper or magazine) vests in the print publisher, but extends only to the creative material contributed by them, not to the "preexisting material employed in the work," i.e., the individual article. While §201(c) permitted a publisher to reprint an article from one issue in a later issue of its magazine, it does not permit the publisher to include it in an entirely new anthology or collective work.

Most importantly, the Court rejected the publishers' claim that inclusion of the articles in the database was "part of . . . [a] revision of that collective work" permitted by §201(c). The Court relied heavily on the fact that the databases in question present the articles to users clear of the context provided by the original published editions. The articles are viewed as parts of a new compendium, namely the entirety of works in the database, which is what database users search to locate the articles. While the databases listed the page and section numbers where the articles originally appeared, that only shows that the article formerly was part of the print periodical, not that it still is part of that original print periodical. Of all the databases—LEXIS, NYTO, and GPO—the closest call seemed to be the whole-page microfilm (GPO), but even that divorced the article of the context of surrounding pages and so couldn't be considered a "revision of that collected work."

Finally, the Court dismissed the publisher's claim that holding for the freelancers would have devastating consequences for the historical research by causing publishers to yank unlicensed articles from their databases. The Court suggested that problems like that could be solved by blanket licensing agreements of the sort now employed for music (e.g., ASCAP, BMI), and in any event, those were matters for Congress to consider. The Court remanded to the District Court to consider remedial issues. The opinion was joined by the Chief and Justices O'Connor, Scalia, Kennedy, Souter, and Thomas.

Newspaper publishers – who, it is well known, can only avoid immediate and total insolvency if they are Completely Immune From All Legal Liability – have already begun saying they will remove old freelance work from their databases, or, as they have preferred to call them since about 10:15 Monday, "historical archives." (I find those archives especially helpful when I'm conducting historical research on where to vacation or what movies to see.) The case should mostly affect older articles, since I think most authorship agreements not drafted by Yale Law grads would now encompass reproduction in databases.

Stevens, who has already published 29 opinions this year, somehow found the energy to dissent once again. Clearly he is using some veterinary stimulant in doses normally reserved for racehorses. He disagreed pretty much across the board: He thought the Court's holding was inconsistent with Congress' goals in amending the Copyright Act in 1976 (which sought to protect authors only against inclusion of the work in an "entirely different magazine or other collective work"), was inconsistent with the text of §201(c) (under which the database versions were clearly "revisions" of the original compilation), and would have grave implications for the historical research, which would be undermined if databases were not complete. He argued that the newspaper's selection process alone made articles copyrightable as part of a collected work, and that that fact isn't changed if works are put in a database with a bunch of other things the paper has selected for publication. Look for flattering treatment of JPS on the editorial page of the New York Times in the near future: he spoke in very flattering terms of America's Newspaper of Record, even citing its motto ("All the News that's Fit to Print") as evidence that the selection process reflects sufficient originality to merit copyright protection. He was joined by Justice Breyer.

==========

4. Immigration and Nationalization Service v. St. Cyr, No. 00-767. Recent years have seen a marked degradation in Congress's acronyming abilities. So far past are the heady days of WARN and COBRA that it seems Congress isn't even trying anymore. In 1996, for example, Congress passed the two "tough love" measures at issue in this case: the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, if abbreviated, make the speaker sound as though he's recently had an especially large injection of novocaine. Before their enactment, §212(c) of the Immigration and Nationality Act of 1952 gave the Attorney General broad discretion to waive deportation of resident aliens. AEDPA identified a set of offenses for which discretionary relief was unavailable, and IIRIRA repealed §212(c) and replaced it with a new section excluding from the class of people eligible for waiver of deportation anyone "convicted of an aggravated felony."

Respondent Enrico St. Cyr was a lawful permanent resident alien. Although endowed with a name and personality that would have made him a natural romantic lead for the underrated continuing drama All My Children, St. Cyr used his basic lack of impulse control not for good (i.e., by sleeping with his wife's best friend for the amusement of the viewing audience), but for evil (by committing an aggravated felony). He pleaded guilty to a deportable crime sometime before the enactment of AEDPA and IIRIRA, but his removal proceedings were commenced after their effective dates. The government claimed that the AEDPA and IIRIRA withdrew the Attorney General's authority to grant St. Cyr a waiver of deportation. The district court accepted St. Cyr's habeas application and agreed that the AEDPA and IIRIRA restrictions did not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment. The Second Circuit affirmed.

By a 5-4 vote, and in an opinion by Justice Stevens, the Supreme Court held that St. Cyr was eligible for relief. (I thought the Chief would vote with the majority a la Dickerson for damage-control purposes in order to keep an opinion construing the Suspension Clause out of Stevens' hands, but I was wrong.) In recent years, the Federalist Five have used various "clear statement" and "constitutional doubt" principles to reach pro-state (or at least anti-Congress) conclusions without directly holding the acts unconstitutional, by basically saying there were grave enough doubts about the constitutionality of one reading of a statute that they would give it another reading that was more clearly constitutional. Sometimes it seems the mechanism is a make-weight added as an afterthought to shore up a textual argument, and sometimes it seems like it's employed when the votes just aren't there for an outright finding that a statute is unconstitutional. But in any event, Justice Stevens used those principles to great effect Monday to "back in" to the conclusion that Courts had jurisdiction over St. Cyr's petition and that the AEDPA and IIRIRA did not apply to St. Cyr's case because the statutes were enacted after he pleaded guilty to the crimes that made him deportable.

First, the Court held that courts have jurisdiction under 28 U.S.C. § 2241 to decide the legal issue raised by St. Cyr's petition. The government claimed that the AEDPA and IIRIRA stripped federal courts of jurisdiction over habeas petitions challenging deportation, since the IIRIRA, for example, did say that "[j]udicial review of all questions of law and fact . . . shall be available only in judicial review of a final order under" a particular section of the IIRIRA, which doesn't provide for habeas review. And not incidentally, §401(e) of the AEDPA was helpfully entitled "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS." But the Court concluded that the government had not overcome the strong presumption in favor of judicial review of administrative action or the "longstanding rule requiring a clear and unambiguous statement of congressional intent to repeal habeas jurisdiction." This conclusion was reinforced by the principles that "when a particular interpretation of a statute invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result" and that a statute should be construed to avoid "serious constitutional problems." The serious constitutional problems in question were raised by the Suspension Clause (Art. I, §9, cl.2) which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." (As much as we all revere the founders, I'm glad we didn't stick with their funky capitalization rules.) Citing a case that does not actually mention the Suspension Clause, and which really only suggests that there must be some form of judicial review before deportation (Heikkila v. Barber, 345 U.S. 229, 235 (1953)), Justice Stevens wrote that some "judicial intervention in deportation cases is unquestionably required by the Constitution." Even if the Suspension Clause only protected the writ as it existed in 1789 (as opposed to the writ as greatly expanded in 1867), he read the historical evidence to suggest back then a common-law judge would have had power under such circumstances to issue the writ. Because Congress wasn't clear enough to overcome the presumptions, he concluded that Courts had jurisdiction to review St. Cyr's petition under §2241.

Second, the Court held the suspension of waiver of deportation under §212(c) couldn't be applied to St. Cyr, because Congress had not been sufficiently clear that it wanted the AEDPA and IIRIRA to apply "retroactively" to people who had been convicted of aggravated felonies before their effective dates. Congress can enact civil retroactive laws so long as it clearly indicates it wishes to do so, but here that clarity was lacking. The Court found the laws retroactive because they attached a new disability to convictions arising before their effective dates (ineligibility for waiver of deportation). Finally, the Court thought it made no difference that §212(c) relief was in any event discretionary, since in any event it diminished the likelihood of deportation. The opinion was joined by Justices Kennedy, Souter, Ginsburg, and Breyer.

Justice Stevens is a big fan of footnote-heavy opinions, and St. Cyr is a classic of the genre. In fact, so swept up was Justice Stevens in filling the opinion's whopping 55 footnotes that he didn't even notice that he had quoted the same sentence from the same case both in footnote 28 and in its reference in the text. Must be an important point. Kudos to the eagle-eyed Henk Brands for spotting what eluded both the Stevens clerks and a bevy of professional proofreaders.

Justice Scalia dissented, joined in full by the Chief and Justice Thomas and for the most part by Justice O'Connor. He faulted the majority for finding ambiguity in "the utterly clear language of the statute" and for having interpreted two enactments designed to expedite the deportation of criminal aliens to "afford[] [them] more opportunities for delay-inducing judicial review" than non-criminal aliens have or that criminal aliens had before enactment. In a portion of the opinion Justice O'Connor did not join, Justice Scalia argued that the Suspension Clause was originally understood not to apply to Congressional enactments altering the content of the writ of habeas corpus, but only to temporary suspensions of its operation. Even if the Suspension Clause did guarantee some minimum of habeas relief, he argued that minimum would certainly not include the right to judicial compulsion of the exercise of executive discretion to waive deportation, which he argued was akin to a presidential pardon. He disagreed with Stevens' reading of the historical treatment of such applications.

Justice O'Connor also dissented separately to distance herself from Scalia's discussion of the original understanding of the Suspension Clause, saying it was enough to say that it didn't apply under these circumstances to the discretionary waiver of deportation.

5. The Court then went on to apply its holding in St. Cyr to the related case of Calcano-Martinez v. Immigration and Nationalization Service, No. 00-1011. The brief 4-page opinion didn't really add anything to St. Cyr, and the voting lineup was basically the same.

==========

6. Nevada v. Hicks, No. 99-1994, concerned the question whether a Nevada Indian tribal court had jurisdiction over a state official for on-reservation conduct in an off-reservation criminal case. The Court held that it did not. The majority opinion drew only 6 votes (those of its author, Justice Scalia, plus the Chief and Justices Kennedy, Souter, Thomas, and Ginsburg). But because the case was on cert. to the Ninth Circuit, the judgment was, as a matter of principle, 9-0.

After years of cutting hair and chattering in a gentle monotone in an obscure North Carolina town, Floyd Hicks discovered his Native American roots and moved to the Fallon Paiute-Shoshone reservation in Nevada. State game wardens executed state-court and tribal-court search warrants to search Hick's home there for evidence of an off-reservation crime (to wit, killing a sheep). Hicks filed suit in tribal court against Nevada and the wardens in their individual capacities for trespass, abuse of process, and violation of his constitutional rights (under 42 U.S.C. § 1983). The tribal court held it had jurisdiction. Nevada and the game wardens filed a declaratory judgment action in federal district court, which found for Hicks and held that the wardens would have to exhaust their qualified immunity claims in the tribal court. The Ninth Circuit (Goodwin, Fletcher, Rymer [dissenting]) affirmed, concluding that because the fact that Hick's home was on reservation land was sufficient to give the tribal court jurisdiction over civil claims against nonmembers for their activities on that land.

The Court first held that the tribal court did not have jurisdiction to adjudicate the wardens' allegedly tortious conduct in executing the search warrant for an off-reservation crime. For what I believe is the first time, the Court explicitly held that under Montana v. United States (1981), the exercise of tribal power over nonmembers "beyond what is necessary to protect tribal self-government or to control internal relations . . . cannot survive without express congressional delegation," whether the events happen on or off reservation land. While the land's ownership status should be considered, it is only one factor, and is not alone enough to support regulatory jurisdiction (and thus adjudicatory authority) over nonmembers. Regulating state officers in executing process related to off-reservation law enforcement isn't essential to tribal self-government or internal relations. On the other hand, states have considerable interest in executing process, and doing so does not impair Tribes' self-government any more than it impairs states' self-government to execute federal warrants within the states. Second, the Court held that the Tribal Court had no jurisdiction over the §1983. Because they are not courts of "general jurisdiction," the background presumption of concurrent federal-state jurisdiction over cases involving federal statutes is missing here.

Showing the diplomacy that made him such a natural consensus-builder on the Court in the late 1980s, Justice Scalia devoted the entire last section of the opinion (5 pages) to lambasting Justice O'Connor's concurrence in the judgment, describing it in turns as "great overreaching," "exaggeration," and "wonderful magic."

Justice Souter concurred, joined by Justices Kennedy and Thomas. His main point is that under Montana, a tribe's civil jurisdiction generally stops short of nonmember defendants in the absence of "consensual relationships" permitting jurisdiction or if "the political integrity, the economic security, or the health or welfare of the tribe" requires jurisdiction. The circumstances of this case were insufficient to overcome the presumption against tribal jurisdiction over nonmember conduct.

The usual rap on western Justices is that they are naturally unsympathetic to Indians because they represent competition for resources. With her vote last week in Idaho v. United States and yesterday in Hicks, Justice O'Connor is doing her best to counteract that notion. Justice O'Connor concurred only in the judgment, writing to criticize the majority's application of Montana to nonmembers regardless of whether the land in question was owned by the tribe or not, which marked a departure from the Court's past "equivocat[ion]" on that question. She thought the majority had, without cause, "undermine[d] the authority of tribes to make their own laws and be ruled by them." She would hold that Montana governs a tribe's civil jurisdiction over nonmembers, and that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction. She was joined by Justice Stevens and her new best friend (well, third-best friend) Justice Breyer.

Justice Stevens also concurred only in the judgment, joined by Justice Breyer. He disagreed with the conclusion that Tribal Courts do not have jurisdiction over §1983 claims and instead agreed with the Solicitor General's position that such courts do have jurisdiction over such claims unless enjoined from doing so by a federal court. Given a tribal assertion of general subject-matter jurisdiction, he would assume a tribe's authority to adjudicate §1983 claims unless federal law dictated otherwise.

==========

Before heading on to the order list, it should be noted that last Thursday, the Court granted a stay of execution to death-row prisoner Glenn Holladay pending consideration of his cert. petition. Holladay v. Alabama, No. 00-10728. Holladay asserts the same claim at issue in next Term's McCarver case, i.e., whether it's still constitutional to execute the mentally retarded. Ordinarily this means that a majority of the Court believes the petitioner has "a substantial probability of success," but something tells me they fudge that standard a bit in the capital context because of the finality when the case becomes (ahem!) "moot."

A whole heap of new grants on the order list, most of them designed to make us feel nostalgic next year about what an exciting Term sleepy old OT2000 was. Plus one significant dog that didn't bark.

1. Owasso Indep. School Dist. v. Falvo, No. 00-1073, involves what Justice Scalia (or Snuffy Smith) might call th' ol' Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g(b)(1), which prohibits the furnishing of federal funds to an educational institution that has a policy or practice of releasing, without parental consent, students' "education records." The question presented is one of obvious importance to any freedom-loving American: Whether allowing students to grade each other's homework and tests as their teacher goes over the correct answers aloud in class violates FERPA's prohibition against the release of "education records." This case has obvious implications for public disclosure that a classmates has "cooties," to say nothing about constitutional protections against having to do math problems in front of the whole class.

2. National RR Passenger Corp. v. Morgan, No. 00-1614, was primarily granted because respondent's first name is "Abner." Strictly speaking, that's not true. The case really involves the scope of the "continuing violation" doctrine under Title VII. The Ninth Circuit (aha!) held that the continuing violation doctrine supports the imposition of liability for acts outside of the limitations period if they are "sufficiently related" (sounds a trifle circular) to acts that fall within the statute of limitations. Amtrak seeks to revisit that determination, and its lawyers claim that they are on the strong end of an everybody-against-the-Ninth-Circuit split.

3. Wisconsin Dept of Health & Family v. Blumer, No. 00-952. This case arises out of the Medicaid program's "spousal impoverishment" provisions, 42 U.S.C. 1396r-5, which establish special rules for determining the eligibility of a married individual who is institutionalized (in a nursing home or otherwise), but has a spouse (the "community spouse") who is not. Those provisions govern the allocation of income and resources between such spouses for purposes of determining Medicaid eligibility. The question presented is whether, in a "fair hearing" proceeding to consider whether to raise the community spouse's resource allowance pursuant to 42 U.S.C. 1396r-5(e), Wisconsin's "income first" requirement (Wis. Stat. Ann. § 49.455(8)(d)), which treats income otherwise attributable to the institutionalized spouse as available to the community spouse to meet that spouse's minimum monthly maintenance needs, is consistent with the federal statute.

4. Edelman v. Lynchburg College, No. 00-1072. This case concerns the validity of an EEOC regulation that permits a complainant to amend a charge of employment discrimination filed with EEOC to cure "technical defects or omissions, including failure to verify the charge," and that such an amendment to verify the charge "will relate back to the date the charge was first received" by EEOC, or whether that regulation is trumped by Title VII's requirement that that charges be filed within a particular time period.

5. Verizon Maryland Inc. v. Public Service Commission of Maryland, No. 00-1531, with United States v. Public Service Commission of Maryland, No. 00-1711. Cert. was granted limited to question 2, which is "Whether, if 47 U.S.C. § 252(e)(6) does not apply, a federal district court has independent subject matter jurisdiction under 28 U.S.C. § 1331 to determine whether a state public utility commission's action interpreting or enforcing an interconnection agreement violates the Telecommunications Act of 1996." The cases were consolidated for argument and set for oral argument in tandem with Mathias v. WorldCom Technologies, No. 00-878, granted back on March 5, which raises the questions the Court didn't grant on in this case, namely related questions about the jurisdiction of courts to review PSC orders and questions about Eleventh Amendment immunity and Ex Parte Young doctrine. Justice O'Connor has recused herself from these cases because of stock ownership, meaning that the Maryland PSC can get an affirmance by persuading only 4 Justices instead of the usual 5.

6. Ragsdale v. Wolverine Worldwide, Inc., No. 00-6029. This case involves th' ol' Family and Medical Leave Act of 1993 (FMLA), which requires covered employers to provide eligible employees with "a total of 12 workweeks of leave during any 12-month period" for various specified reasons, including leave needed "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." The FMLA directs the Secretary of Labor to "prescribe such regulations as are necessary to carry out" the Act's substantive provisions. The question presented is whether the Secretary has acted permissibly in providing by regulation that (with certain exceptions) employer-provided leave does not count against the Act's 12-week entitlement until the employer notifies the employee of its designation as FMLA leave.

7. Kelly v. South Carolina, No. 00-9280. Flush from his victory in Shafer v. South Carolina, Federal Death Penalty Resource Counsel David Bruck is seeking cert. in yet another case that presents a Simmons question. This case presents the question whether the trial court's refusal to inform the sentencing jury that Kelly would receive life in prison without parole if not sentenced to death violated Simmons v. South Carolina (1994). I haven't read the papers to see why this case adds anything new to the mix on the evergreen Simmons issue.

Finally, the dog that didn't bark: the Court denied cert. in Texas v. Hopwood, No. 00-1609, the latest incarnation of Texas' long-running effort to reinstate UT Law Skool's affirmative action program. Evidently the Court wants to let this issue percolate a little longer.

Now for relist patrol: it looks like the Court relisted in United States v. GWI PCS 1 Inc., No. 00-1621, which presents the question whether a court in bankruptcy proceedings may use the "equitable mootness" doctrine to override the FCC's exclusive authority to regulate telecommunications licenses. It also looks like a relist (although I can't quite tell) in Montemayor v. Corporate Health Ins., No. 00-665; recall that this is the case in which the Court called for the views of the SG and it told the Court, basically, to let the issue ride a little while longer.

Speaking of calling for the views of the SG, that's what the Court did in Kentucky Association of Health Plans v. Miller, No. 00-1471, which presents the question whether ERISA preempts a state law requiring health care plans to admit any provider willing to abide by the plans' terms.

The Court will be back on Thursday with the last 4 of the Term's opinions. It looks like the Chief and Justice O'Connor will have the majority opinions in Lorillard v. Reilly and Tyler v. Cain. AMK is the likely favorite to have Zadvydas v. Underdown and Reno v. Ma. Tune in Thursday for more of today's baseball!

-----------------------------

It is often said that "everyone has his price." The amazing thing is that, for a remarkable number of people, that price is just $4.29 ($3.29, if you buy a second dozen). But then again, it is impossible to put a price on a dozen of America's Favorite Hot Yeast-Raised Doughnuts™, to say nothing of the enormous prestige that comes from winning this hotly contested and intellectually satisfying competition. Thanks to all of the entrants in the Third Annual Supreme Court Trivia Challenge.

The answers were as follows:

1. When was the last time the Supreme Court held a jury trial?

The fourth most popular answer was 1999 (Pres. Clinton's impeachment trial) and 1868 (Pres. Johnson's impeachment trial), but those did not involve the Court as a whole, just the Chief Justice as presiding officer. The third most popular answer was "never," but never is, well, a long time for nothing to happen. You can quote me on that. The second most popular answer was United States v. Shipp, 214 U.S. 386 (1909), which involved a contempt-of-court proceeding to punish persons who had, ahem, rendered a criminal habeas appeal moot after the Court had granted a stay by hauling the appellant out of jail and lynching him. But in Shipp, the Justices themselves acted as both factfinders and lawgivers, making them not truly "jurors" (who are factfinders alone, and usually laypersons). (Recall that the trivia question arose in the context of jury instructions, which are unnecessary when judges sit as factfinders.)

The correct answer was also the most popular. As put by the winning entrant, "Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794) is the last reported jury trial, though [Hart & Wechsler] refer to unreported trials in 1795 and 1797." Brailsford involved the effect on various creditors of a state's Revolutionary War-time sequestration of debts. The other two jury trials, which are evidenced by Court records but not formally reported, are Oswald v. New York (U.S. Feb. 6, 1795) and Cutting v. South Carolina (U.S. Aug. 8, 1797), which each resulted in jury verdicts of over $5,000, quite a princely sum in those days. The parties in Casey v. Galli, 94 U.S. 673 (1876), waived "intervention of a jury," and in United States v. Louisiana, 339 U.S. 699, 706 (1950), the State of Louisiana unsuccessfully demanded trial by jury in a suit at equity, but what to do you expect from a bunch of civil code lawyers?

Congratulations to Kelly Klaus, who came back with the correct answer in just over twenty minutes. Honorable mention, meaning kudos but no donuts, for correct responses from Eric Glover, Rachel Barkow, Henk Brands, Ted Ruger, Michael Wiggins and his diligent team of summer associates, Ara Gershengorn, Christopher Teske, Ted Cooperstein, Andrew Marks (I believe; the e-mail address is unfamiliar), John Eastman, Paul Horwitz, Eric Rassbach, John Noble, Jed Silversmith and Kevin Finnerty, Craig Albert, Esther Slater, Kelley Brooke (who should have been disqualified for expressing a preference for another brand of donuts), Michael Masinter, Jenna Solari, Joshua Layton-Rodin, and a Caseyesque joint opinion by Steven Engel, Igor Timofeyev and Olivia Samad. (This last entry actually missed the cutoff by nearly an hour, but the Florida Supreme Court required me to accept it anyway.)

You can read all about this fascinating subject in Robert A. James, Instructions in Supreme Court Jury Trials, 1 Green Bag 2d 377 (1998) (reprinted, with updates, revisions, and permission, from 1 J. Atten. Subt. 5 (1982)). A copy of the article is attached in PDF format.

2. Who is the most baffled Justice ever? Which Justice, living or dead, most often expressed bafflement over the views of his or her colleagues on the Court?

To keep the question simple (and the universe of acceptable synonyms small), the opinion-writer had to use some form of the word "baffle" (baffled, baffling, bafflement) to describe the views of his or her colleagues. Also, because I was principally interested in who most used the word (as opposed to who most condoned use of the word), we only counted opinions in which a Justice him- or herself employed the word in an opinion. Unsurprisingly, the writers of majority opinions were less likely to be baffled than their colleagues in dissent, who don't mind sounding a bit more strident.

The feisty Justice Scalia took an early lead in the returns by those who trusted their gut instinct over a LEXIS search, and he proved to be the second most popular response, edging out Justices Thurgood Marshall and Stevens. You may therefore be surprised to learn that the Justice who most expressed bafflement at his colleagues' views was none other than the Great Schmoozer, the usually cordial Justice William J. Brennan. Brennan expressed bafflement over his colleagues views no fewer than 14 times in 11 different opinions during his 33 years on the Court, and also has the distinction of being one of a handful of Justices to do so in a majority opinion. (He is joined by Justice Scalia and the masked author of the recent p.c. in the Garvey case.) Next on the hit parade is Justice Thurgood Marshall (9 opinions). From there it's a significant drop to third place. Until yesterday, there was a three-way tie between Justices Scalia, Stevens, and Thomas, with four each. But then yesterday, Justice Thomas went and added yet another "baffled" to his Colorado Republicans dissent, and so he wins the bronze in his own right. (By the way, my data aren't that robust here; I can't exclude the possibility that Stevens had a fifth and Thomas a sixth.) Next on the list were Justices Blackmun and Harlan, who tied with three uses each. In any event, the use of this kind of vituperative language seems to be largely a post-war development.

The first correct answer was received from Timothy Sandefur in 45 minutes. If he is unable to serve out his term, the crown will be given to the runners up in the following order: Bryan Sells, Ed Whelan, Ted Ruger, Ara Gershengorn, Christopher Teske, Ted Cooperstein, Brian Willen, Andrew Marks, John Eastman, Paul Horwitz, John Noble, Jed Silversmith and Kevin Finnerty, Craig Albert, David Blanchard, Kelley Brooke, Jason Manning, and the artists formerly known as Steven Engel, Igor Timofeyev and Olivia Samad.

Thanks again for participating in this year's Trivia Challenge (especially for all the funny answers). Those donuts will be delivered to the winners promptly just as soon as I damn well feel like it.