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Monday, October 31, 2005
Today, Oct. 31, 2005
No. 04-885 Central Virginia Community College v. Katz
With Rehnquist gone, does the "Federalism Revolution" live? This case involves whether Congress can abrogate state sovereign immunity via the Bankruptcy Clause. I'm guessing federalism lives, and states are safe from bankruptcy trustees. Reverse.

Update: On Jan. 23, 2006, the Court Affirmed per Justice Stevens. Opinion here.

No. 04-905 Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc.
A Volvo truck dealer claims Volvo violated the Robinson-Patman Act by giving discriminatory incentives to other Volvo dealers. The dealer won below and the Eighth Circuit affirmed. I say Affirm.

Update: On Jan. 10, 2006, the Court Reversed (7-2) per Justice Ginsburg. Opinion here.

Oh, and it appears Judge Sam Alito will be nominated to fill Sandra Day O'Connor's seat today.

Wednesday, October 12, 2005
More lingering questions:

An alert reader mails to point out that a few things have not yet changed in the wake of Chief Justice Roberts's investiture. First, this page still does not list him as a member of the court; second, this page does not list him among the Chief Justices. The reader's third link had to do with circuit assignments, but that has been taken care of.

Update: The first page above has been updated, but the second has not. Here is Chief Justice Roberts's bio:

John G. Roberts, Jr., Chief Justice of the United States, was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996; they have two children—Josephine and John. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice ofthe United States, and he took his seat on September 29, 2005.

Cases for Wednesday, Oct. 12

No. 04-473 Garcetti v. Ceballos.
Quickly, here is a case where a police officer testified about his doubts that a prosecution should go through. Not surprisingly, he was fired. He brought a Section 1983 action claiming that he was retaliated against for the exercise of his First Amendment rights. The problem is that it's not clear that he has any First Amendment rights when it comes to matters like this one, where his speech was part of his job as a public employee. For more thorough preview, see here. The Ninth Circuit thought that this should count as protected speech, and I think the Court will REVERSE.

Update: On Feb. 17, 2006, the Court decided to hear reargument of the case. Stay tuned, but not here, because I update this very very seldomly.

No 04-759 United States v. Olson
The Respondent in this case worked in a mine, but worried that it was not safe. He complained to federal mine inspectors, and then the mine fell in on him. When it came to determine who he should sue, he chose the government. (Of course, he may have sued the mine also, but this case is about whether the government can be liable). The Ninth Circuit held that the government could be liable for failing to adequately inspect the mine in the fact of numerous complaints. I think the Court will REVERSE, and I'll go out on a limb and predict a 9-0 reversal.

Update: On November 8, the Court unanimously Vacated and Remanded, which on this blog counts as a reversal. Justice Breyer's opinion is here.

Friday, October 07, 2005
Cases for Tuesday, Oct. 11, 2005
No. 04-980 Brown v. Sanders
In California, a jury can find that a murder conviction warrants the death penalty by finding that special circumstances make the murder particularly bad. In this case, the jury found four special circumstances specified by California law and sentenced respondent Ronald Sanders to death. On appeal, the California Supreme Court set aside two of the special circumstances, but held that the jury would have imposed the death sentence anyway.

Sanders brought a habeas corpus challenge to his death sentence and the Ninth Circuit set it aside. The court held that the California Supreme Court couldn't know whether the jury would have imposed the death sentence if it only had found two of the special circumstances.

The resolution of this case may depend on whether California is a "weighing" state, in which case the California Supreme Court should have either reweighed the factors or held that the overturned circumstances were harmless beyond a reasonable doubt. California takes the position that it doesn't matter because the jury only needed to find one special circumstance in order to impose a death sentence. I think it's likely the Court will AFFIRM. Without a harmless error analysis, the California Supreme Court's ruling amounts to a holding that a jury would necessarily impose death if certain circumstances are found, which I'm pretty sure (without checking) is unconstitutional under prior death penalty cases.

Update: Scotusblog's preview of the case can be found here.

No. 04-712 Lincoln Property Co. v. Roche
This case is sure to grab the headlines, as everyone knows that diversity jurisdiction is as hot in 2005 as, well . . . um . . . something else that's hot. [My apologies - I am apparently so far removed from popular culture that I can't come up with something that is assuredly "hot" enough that I might not be mocked for picking something that was hot in 2004 but that is totally lame now.*] In any case, Lincoln Property is about a partnership that was sued in Virginia state court. The partnership, which is a subsidary of a Texas corporation, removed the case to federal court, alleging that the corporation's Texas citizenship made it diverse from the Virginia plaintiffs. The Fourth Circuit held that Lincoln Property did not sufficiently allege diversity, because it did not state where the partnership's partners operate.

Maybe I'm missing something, but I'm pretty sure Professor Cohn taught us that a partnership is a citizen of all the states that its partners are citizens of. My real prediction is that this case is DIGed; if not, I think the Court will be AFFIRM.

* Update: I have determined that the Ipod Nano is hot.

Friday, September 30, 2005
Congratulations to John Roberts!
Today is Chief Justice John Roberts's first day on the job. A few questions that linger in the wake of his confirmation:

1) What will become of the clerks he hired for 2005?

2) What will become of Rehnquist's clerks? Article III Groupie is on the case.

3) Will there be an official portrait that includes Roberts and O'Connor, or will they just wait for the new guy or gal?


Tuesday, September 27, 2005
Oh, and...

Cases for October 5, 2005
No. 04-623 Gonzales v. Oregon
This is the assisted suicide case. Tough to predict, as will be many cases this year. The old adage that the Court doesn't grant cert. to affirm can't apply here, since two members who may very well have voted to grant cert. in order to reverse might not be around for the decision. A case that might otherwise have produced a 5-4 decision could go 6-3 the other way. This case in particular presents problems because like last year's case, Gonzales v. Raich, it pits federalism interests (states' interest in deciding controversial issues like assisted suicide and medical marijuana) against traditionally conservative views, e.g., that the federal government should have limited powers; that suicide (or marijuana) is always morally wrong. In Raich, the commerce clause and increased federal power won over federalism concerns, with the majority consisting of everyone but O'Connor, Rehnquist, and Thomas. Mainly because of the method by which the Attorney General implemented the ruling at issue here (that assisted suicide is not a legitimate medicinal purpose), I think the Raich majority will again reverse the 9th Circuit and hold for expansive federal power. REVERSE

No. 04-698 Schaffer v. Weast
This is a case about whether parents of a disabled child who appeal whether their public school has provided an adequate Individualized Education Program (under the Individuals with Disabilities Education Act "IDEA") have the burden of proving that the IEP is inadequate, or whether the school system must prove that it is adequate. The Fourth Circuit held that the parents have the burden. For the reasons stated in Judge Luttig's dissent in the 4th Circuit, I think the Court will REVERSE.

Update: On Nov. 14, the Court Affirmed the Fourth Circuit. The opinion is here.

Scotusblog notes (here) that the orders list is up from the Long Conference. The Court granted cert. in several cases, and noted jurisdiction in one. The last case granted, Samson v. California, was in forma pauperis. I don't know whether Samson was proceeding pro se, but if he were, who would assign an advocate for him on the merits? Usually, it is the Chief's perrogative, but there is no Chief for another two days, so would Stevens do it, or would one of Roberts's first duties as the Chief Justice be to appoint one of his former colleagues at the Supreme Court Bar to this case?

Update: This question will remain moot at least until Justice Roberts retires, as Samson was represted by counsel.

Monday, September 19, 2005
First Monday: Cases for Oct. 3, 2005

No. 03-1238 IBP v. Alvarez & No. 04-66 Tum v. Barber Foods
Here are two cases about whether employers must pay employees for time that they spend putting on safety gear and walking to their job. The Ninth Circuit says they do. The First Circuit says they don't. An amendment to the Fair Labor Standards Act says employers do not have to pay for time spent going to and from the place where a worker's primary activity takes place, but does not say how we should define what the primary activity is. I think this could go either way, with two superstars arguing: Tom Goldstein on the plaintiff's side of the Tum case and Carter Phillips on the other side of the IBP case. I think that people don't put on 50 lbs of safety equipment for fun, so the employees will win. AFFIRM in IBP and REVERSE in Tum.

Update: On Nov. 8, the Court Affirmed IBP and Reversed (in part) Tum. The opinion is here.

No. 04-0631 Wagnon v. Prarie Band Potawatomi Nation
This case concerns a tribe of native Americans in Kansas who have a casino on their reservation. If I understand the facts correctly, there is one road that goes to the casino, and one gas station (the "Nation Station") on that road. As you might guess the gas station primarily sells gas to casino goers. The tribe imposes a tax on the gas that pays for the road. Well Kansas decided it was going to impose its own tax on fuel distributors, that they were free to pass on to their customers. The tribe argues that the tax should not apply to it because federal indian law preempts state law and because it impinges on the tribe's sovereign immunity. My from the gut prediction is that the Court will REVERSE, just because native Americans really have bad luck at the Court. They have some decisions that say great things for them, but unfortunately courts mostly find ways around actually upholding those great things.

Monday, June 06, 2005
Not quite as good as a bobblehead

An Ebay entrepreneur is offering Supreme Court Justice Figurines for $25.00. I applaud the spirit of this person, but I somehow doubt these will become the collector's items that the Green Bag bobbleheads are.