SCt Today

Greetings, sportsfans! Welcome to October Term 2006 and a new edition of Supreme Court Today. Mark Stancil, my fellow Rehnquist clerk and former SCT correspondent, has departed the firm for greener pastures.* It falls to me to carry the torch for SCT. In the tradition of Mark and SCT founder John Elwood, I will endeavor to provide you with timely, insightful, and witty updates on the happenings at the Temple of Justice . Before we dive right into a preview of October’s cases, here’s a quick recap of the Justices’ supreme summers, leaving aside the de rigueur boondoggles to the south of France (or the south of New Hampshire in DHS’s case).

  • In an interview with his hometown newspaper, Justice Alito revealed that at his first Conference he initially forgot to jump up to answer a knock on the door—the traditional chore of the most junior Justice. Justice Breyer reflexively got up instead. Chief Justice Roberts told Breyer to sit down and admonished Alito to do his job. You can bet Justice Alito won’t forget again!
  • Speaking of Justice Alito: Besides his votes at the end of last Term, recent events seem to confirm that he won’t be Ted Kennedy’s favorite Justice after all. At a recent speech at the Reagan Library in California , Alito lauded Reagan’s respect for tradition and originalism in appointing judges. And in November, Justice Alito will be the keynote speaker at the Federalist Society’s National Meeting of the Right-Wing Conspiracy Lawyers Convention.  Bummer, Teddy!
  • The Court announced that it would begin releasing oral argument transcripts on the same day as argument. And this after last Term’s innovation—actually identifying on the transcripts the Justice asking each question (before that all of the Justices were named “Question”). Next thing you know, television cameras will be rolling right over Justice Souter into the courtroom.
  • Last week, a man was arrested after firing off a flare gun on the Supreme Court plaza.  The flare formed the words “Overrule Seminole Tribe” in the night sky. (OK, that last sentence was fictional.)
  • Justice Kennedy underwent surgery to have a stent placed in an artery near his heart, prompting the Washington Post to headline that the “Moderate Jurist’s Heart is Undamaged.” I guess that’s good news for left-wing litigants counting on Justice Kennedy’s moderate heart to swing their way this Term.  [In all seriousness, we wish Justice Kennedy a speedy and complete recovery.]
  • Going into the Long Conference of September 25, 2006, the Court has granted only about 30 cases for this Term, far fewer than it has ordinarily granted by now.  Look for the Justices to begin ramping up the number of grants soon or to start planning an early Christmas vacation. The Court is still short cases for the December calendar.  That creates a risk of extreme expedition, with the time for reply briefs shortened to as little as 7 days.
  • The Solicitor General filed an amicus brief strongly opposing the use of race in assigning students to local elementary and secondary schools (PICS v. Seattle School District and Meredith v. Jefferson County). This is in sharp contrast to the SG’s brief in Grutter and Gratz (the U of Michigan cases) a few years ago, which contained an 18-minute gap where the SG was supposed to argue that racial balance is not a compelling state interest.  Notably, however, the SG does not ask for Grutter to be overruled.
  • BREAKING NEWS: Just two days ago, the Court denied a stay of execution to Clarence Hill by a vote of 5-4. He was executed a few hours later. Hill was the unanimous winner in last Term’s Hill v. McDonough, which held that he could bring a § 1983 challenge to Florida ’s lethal injection protocol. On remand, however, the 11th Circuit held that he had delayed too long in bringing his § 1983 claim, and so denied it on equitable grounds under Gomez v. U.S. District Court, 503 U.S. 653 (1992). By refusing to disturb the 11th Circuit’s decision, the Court declined, yet again, to review the claim that a common lethal injection procedure constitutes cruel and unusual punishment because it allegedly uses a chemical cocktail the Humane Society won’t even use on dogs. The Court’s action also shows that the newly constituted Court will be perfectly happy to let executions go forward even when there are presumably enough votes to grant a prisoner’s cert petition.  Up until a few years ago, a fifth Justice (usually SOC) would ordinarily provide a “courtesy vote” whenever four Justices voted to stay. This practice may have stopped for undisclosed reasons. 

October Term 2006

The second term of the Roberts Court is shaping up to be an interesting one overall. Granted cases include potential blockbusters on race-based school assignment, the federal partial birth abortion statute, and the EPA’s authority to address global warming. The October docket, however, contains fairly standard Supreme Court fare, though there a few hidden gems. The most notable feature is three likely reversals of Ninth Circuit decisions, two from the ever-persevering Judge Reinhardt. Off to the cases . . .

Lopez v. Gonzales, 05-547 and Toledo-Flores v. United States , No. 05-7664 (Oct. 3)

These consolidated cases will resolve a longstanding circuit split in immigration law and a question of special importance if you are a drug-abusing illegal alien. The U.S. Sentencing Guidelines and 8 U.S.C. 1101(a)(43) provide for automatic deportation or a massive sentence enhancement upon illegal reentry for an alien who commits an “aggravated felony.” The question is what happens to an alien who is convicted under State law of felony drug possession, where the crime would be only a misdemeanor under federal law.

Ayers v. Belmontes, 05-493 (Oct. 3)

The Court starts the Term off with a familiar ritual: a ridiculously one-sided oral argument before (yet again) resoundingly reversing Judge Reinhardt. Thanks to the Ninth Circuit’s tender mercies, Respondent Belmontes has now lived 25 years on California ’s death row. In 2003, the Ninth Circuit reversed his death sentence, holding that California ’s jury instruction on mitigating circumstances—known as factor (k)—unconstitutionally precluded the jury from considering Belmontes’ post-crime behavior, such as his religious conversion and model prison behavior.  In 2005, the Supreme Court GVR’d Belmontes in light of its decision in Brown v. Payton, in which the Court upheld factor (k) and found that it does indeed permit jury consideration of post-crime conduct. Not taking that rather strong hint, Judge Reinhardt reaffirmed his original decision and vacated Belmontes’ death sentence once again.  Reinhardt (and his trusty sidekick, Judge Paez) distinguished Payton on the ground that Belmontes, unlike Payton, filed his habeas petition before AEDPA’s stringent standards came into effect. That distinction may be enough to get Belmontes the four liberal votes—the three Payton dissenters plus Justice Breyer who concurred solely on grounds of AEDPA deference—but it is highly unlikely to prevent Belmontes from returning to San Quentin.

MedImmune, Inc. v. Genentech, Inc., 05-608 (Oct. 4)

MedImmune addresses not only patent law, but also the somewhat murky relationship between the Declaratory Judgment Act, 28 U.S.C. 2201(a), and Article III’s case-or-controversy requirement. The question is whether a patent licensee must breach the licensing agreement or infringe the patent before it may file a declaratory judgment action seeking to invalidate a patent. MedImmune has made billions selling Synagis—the only preventative treatment for the infant respiratory disease known as RSV—for about a thousand dollars a pop. MedImmune was licensed under one of Genentech’s patents, which involved technology that used cell cultures to manufacture human antibodies. After Genentech advised MedImmune that Synagis was covered by the patent, MedImmune sought a declaratory judgment that the patent was invalid and unenforceable. But MedImmune continued to pay the royalties required by the patent, not wanting to risk that it would be forced to stop selling Synagis. Unfortunately for MedImmune, the district court and the Federal Circuit held that it could not bring a declaratory action to challenge the patent because it was a licensee in good standing and not in reasonable apprehension of suit. As a result, the court dismissed the suit as non-justiciable. MedImmune argues that the Federal Circuit’s decision conflicts with Lear, Inc. v. Adkins, 395 U.S. 653 (1969), which MedImmune interprets as giving licensees the absolute right to challenge patents. 

BP Amoco Production Co. v. Burton , No. 05-669 (Oct. 4)

The scintillating question presented is whether the six-year limitations period in 28 U.S.C. § 2415(a) bars belated administrative proceedings to recover royalty payments that Big Oil allegedly owes the U.S. Government. The D.C. Circuit held that the statute of limitations applies only to court proceedings, not administrative actions, and thus let the government collect its cash. This case is thrilling not only to the exceedingly distinguished Baker Botts lawyers representing petitioner BP Amoco.  Astute observers will be watching to see whether the Court yet again reverses a decision by Chief Justice Roberts. Yes, that’s right, then-Judge Roberts was the author of the D.C. Circuit opinion under review in BP Amoco. And as you’ll recall, Roberts also joined the D.C. Circuit’s ill-fated Hamdan ruling that was smacked down by the Court last Term.  While the Chief’s prior involvement ensures his recusal from BP Amoco, you can bet he is hoping that his brief D.C. Circuit career is not marked by a 100% reversal rate. Justice Breyer is recused as well, so the case will be decided by a seven-member Court.

Global Crossing, Inc. v. Metrophones, Inc., No. 05-705 (Oct. 10)

Ever made a 1-800 call from a payphone to reach your own long-distance provider, thereby avoiding the need to insert $500 in quarters for the first 5 minutes? This case involves whether and how long-distance companies sponsoring the dial-around numbers can be forced to compensate payphone providers for the use of their phones. The 1996 Telecommunications Act and FCC regulations require the long-distance companies to pay payphone providers a fee for each dial-around call made on a payphone. The question in this case is whether there is a private right of action under 47 U.S.C. 201(b) for payphone providers to enforce the FCC’s regulations in federal court. Section 201, enacted 70 years ago, plainly did not have dial-around numbers in mind; it provides vaguely that an injured party can sue for “unjust and unreasonable” actions.  Plaintiffs, the FCC, and the Ninth Circuit all say that’s close enough for government work.  The D.C. Circuit, however, has held that Section 201 does not provide a catch-all cause of action to enforce FCC regulations. This case will present a real dilemma for Justice Scalia, not merely because he is ordinarily thrifty and resists carrying around bags of quarters with him. He is both hostile to implied rights of action, but famously willing to defer to a federal agency’s interpretation of the statute entrusted to its administration.

Norfolk Southern Railway Co. v. Sorrell, No. 05-746 (Oct. 10)

This case, another beginning-of-the-Term snoozer, has to do with the standard for proving causation under the Federal Employers Liability Act (FELA). Sorrell, a railroad worker, drove his dump truck into a ditch and did what any red-blooded American would do: he sued his employer, NorfolkNorfolk in turn claimed that Sorrell was contributorily negligent. The Missouri state court instructed the jury that the standard of causation for contributory negligence is higher than that for the railroad’s negligence. In other words, the railroad bore a more difficult causation burden than the plaintiff. The Missouri Court of Appeals affirmed.  Norfolk now argues that the divergent causation standards are contrary to FELA’s comparative-fault scheme.

United States v. Resendiz-Ponce, No. 05-998 (Oct. 10)

Another almost-certain reversal for the Ninth Circuit. That court held that the omission of an element of a crime from an indictment is a structural error that always requires reversal. This doctrine seems to be a holdover from the old days when omission of an element was believed to deprive the trial court of jurisdiction over the crime. The Solicitor General, for his part, argues that omission of an element can be harmless error, at least when the defendant has actual notice of the element, evidence of the element is introduced at trial, the jury is properly instructed about the element, and the jury finds the element proven beyond a reasonable doubt. Sounds pretty harmless to me. And hasn’t the Ninth Circuit ever heard of Neder v. U.S., in which the Supreme Court found harmless error even when the jury was not instructed on an essential element of a crime? Although Scalia and the three liberals (excluding Breyer) dissented in Neder, don’t necessarily expect them to back the Ninth Circuit in this case, where the jury was properly instructed and made explicit findings on all the elements. A possible unanimous smackdown for the slow-learning Ninth.

Cunningham v. California , No. 05-6551 (Oct. 11)

California ’s Determinate Sentencing Law specifies three possible terms of imprisonment—too hot, too cold, and just right—for each offense, but the judge must impose the Goldilocks sentence unless the judge himself finds that aggravating or mitigating facts justify a hotter or colder sentence. While this sounds like a blatant violation of the Court’s recent decisions in Booker and Blakely, the California Supreme Court thought otherwise. That court held that California ’s law provides an advisory scheme with appellate review for reasonableness, much like the remedial regime the U.S. Supreme Court imposed in Booker. Did you catch that? The Determinate Sentencing Law is really just “advisory.“ It will be interesting to see whether the Court defers to California ’s attempt to save its sentencing statute through creative interpretation. This case also will be watched closely for what, if anything, it has to say about reasonableness review of federal sentences.

Carey v. Musladin, No. 05-785 (Oct. 11)

Another Reinhardt special. On federal habeas review, the Ninth Circuit reversed a California murder conviction because three members of the victim’s family attended the trial wearing buttons that depicted the victim. Judge Reinhardt relied heavily on factually similar Ninth Circuit precedent in reversing the conviction. But the relevant Supreme Court precedent was ambiguous at best. The problem is that AEDPA permits a federal court to reverse a state conviction only if it violates “clearly established federal law, as determined by the Supreme Court.” The entire right wing of the Ninth Circuit (led by Judge Kleinfeld) dissented from denial of rehearing en banc, declaring that “our tools of statutory construction are many, but they do not include an eraser.” Just a guess, but I’m betting that Judge Kleinfeld will better reflect the views of the Supreme Court than does Judge Reinhardt. My only question is why this was not a summary reversal.  Perhaps the Court needed to fill argument slots so badly that it granted argument when it otherwise wouldn’t have.

Until next time, that’s today’s baseball. Next week, we’ll discuss the cases granted at the Long Conference. 

Aaron M. Streett is an associate in the Houston office of Baker Botts L.L.P., and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts L.L.P.; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author.  Alternate prize available for children under two.

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* When I said Mark departed for greener pastures, I meant Robbins, Russell, Englert, Orseck & Untereiner LLP, not heaven.