United States Supreme Court (2010-2011) Session

SCOTUS (2011-2012 Session)

January 2012

Federal Meat Inspection Act preempts California's slaughter ban

Michael Doyle, McClatchy Newspapers  

01-23-12 -- The Supreme Court on Monday struck down California's ban on the slaughter of downed swine, saying the state strayed too far into federal territory. . . . In a case closely watched by other states as well as the multi-billion dollar livestock industry, the court’s liberal and conservative justices unanimously ruled that long-standing federal law preempted California’s 2008 measure. . . . "The California law runs smack into the (federal) regulations," Justice Elena Kagan wrote for the court. . . . Kagan's 14-page decision emphasized that the Federal Meat Inspection Act covers a "broad range of activities at slaughterhouses" and that it "expressly" preempts the state law.

Supreme Court limits police use of GPS to track suspects

By James Vicini, Thomson Reuters  

01-23-12 -- The Supreme Court for the first time ruled on Monday that police attachment of a GPS device to monitor a suspect's vehicle was a search protected by constitutional privacy rights, a test case involving new surveillance technology. . . . The high court's ruling was a defeat for the Obama administration, which defended the use of global positioning system devices without a warrant and without a person's knowledge as a legal way to monitor a vehicle on public streets. . . . The justices upheld a precedent-setting ruling by an appeals court that the police must first obtain a warrant to use a GPS device for an extended period of time to covertly follow a suspect.

Voting Maps for Texas Set Aside by High Court

By Greg Stohr, Bloomberg

01-20-12 -- The U.S. Supreme Court set aside judge-drawn voting districts for this year’s state and federal elections in Texas (BEESTX), telling a lower court to make the maps more similar to ones drawn up by the Republican-controlled state legislature. . . . The court’s unanimous ruling today may affect Democratic prospects to retake control of the U.S. House of Representatives. Republicans now control the chamber 242-192, with one vacancy. . . . The case tested the power of judges to redraw election maps and the strength of a central provision of the 1965 Voting Rights Act, which protects minorities. . . . The justices were considering the case on a fast-track schedule because of the impending Texas primary, now set for April 3 after a judge delayed the vote for a month.

Citing law firm's errors, high court rules for death row inmate

Tony Mauro, The National Law Journal  

01-18-12 -- The Supreme Court ruled Wednesday that an Alabama death row inmate should not be penalized for missing a crucial appeal deadline when the error was caused by his pro bono lawyers from New York's Sullivan & Cromwell. . . . The 7-2 ruling in Maples v. Thomas brings an end to a "lawyer's nightmare" case that showed how a series of law firm mailroom and notice errors as well as the departure of two associates could nearly result in a client's execution. In excruciating detail, Justice Ruth Bader Ginsburg recited the "uncommon facts" and mishaps that amounted to abandonment of convicted murderer Cory Maples by his Sullivan & Cromwell lawyers at the precise moment when Maples faced a filing deadline for his state post-conviction appeal. . . . "Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se," wrote Ginsburg. "In these circumstances, no just system would lay the default at Maples' death-cell door."

Court approves act extending copyrights to foreign works previously in public domain

Marcia Coyle, The National Law Journal  

01-18-12 -- The U.S. Supreme Court on Wednesday ruled that the Constitution did not bar Congress from extending copyright protection to previously free foreign works, such as Prokofiev's Peter and the Wolf. . . . The justices, in a 6-2 decision by Justice Ruth Bader Ginsburg, rejected arguments made by a group of musicians, conductors, publishers and others, who enjoyed free access to certain foreign works before Congress acted in 1994. The group had argued that once those works entered the public domain, they remained there forever. . . . "Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," wrote Ginsburg.

Supreme Court Allows Federal Suits for Nuisance Telemarketing

By Debra Cassens Weiss, ABA Journal

01-18-12 -- A Florida man who claims he was hounded by a financial services company trying to collect a student loan may sue in federal court, the U.S. Supreme Court has ruled. . . . Marcus Mims of Fort Lauderdale had filed a federal suit for violations of the federal Telephone Consumer Protection Act, which authorizes private suits in state courts. In a unanimous opinion (PDF), Justice Ruth Bader Ginsburg wrote that state courts don’t have exclusive jurisdiction.

Court ponders immunity for private lawyers who take on public jobs

Marcia Coyle, The National Law Journal 

01-17-12 -- Private lawyers hired by local governments for special tasks will hesitate to provide candid advice if they are denied immunity when sued, the Supreme Court was told on Tuesday. . . . The justices heard arguments in Filarsky v. Delia, in which employment lawyer Steve Filarsky was denied qualified immunity in a civil rights lawsuit stemming from his assistance in a city’s internal affairs investigation. The U.S. Court of Appeals for the 9th Circuit held that everyone else involved — the city of Rialto, Calif., and its officers — was entitled to immunity. . . . “If you decide to take on this pro bono representation, or cut your rates out of public duty and the willingness to serve your government, guess what comes with it?” said Filarsky’s counsel, Patricia Millett of Akin Gump Strauss Hauer & Feld. “You alone will be holding the bag at the end of this for the governmental misconduct.”

Prayer Cases Turned Away by U.S. Supreme Court Justices

By Greg Stohr, Bloomberg

01-17-12 -- The U.S. Supreme Court refused to give government bodies more freedom to open sessions with prayers, rejecting a pair of appeals that sought to loosen the restrictions some lower courts have imposed. . . . The justices today left intact a federal appeals ruling that said a North Carolina county board was violating the constitutional separation of church and state by opening most of its sessions with a Christian prayer. The high court also refused to review a separate decision that barred prayers at meetings of a Delaware school board. . . . The Supreme Court hasn’t ruled on the constitutionality of prayer at government meetings since 1983, when the justices said lawmakers could begin sessions with nonsectarian prayers offered by a state-employed chaplain. In other contexts, the court under Chief Justice John Roberts has given governmental bodies more freedom to support religion.

Supreme Court to take up case of Miami man vs. drug-sniffing dogs

By Laura Green , Palm Beach Post Staff Writer  

01-16-12 -- An anonymous tipster reports that you're growing marijuana in your home. Police bring a drug-sniffing dog to your doorstep with no other evidence and without first obtaining a warrant. Has your privacy been invaded? . . . The U.S. Supreme Court will decide whether the dog sniff is an illegal search, hearing the case of a Miami man who was arrested after a dog alerted to the smell of marijuana from outside his home. . . . The case is expected to provide a pivotal decision on the definition of privacy. . . . It could clear the way for police to more routinely bring drug dogs to a home with no other evidence of a crime. Or, law enforcement officials say, it could stifle the use of an important tool in crime fighting.

Supreme Court to decide Chowchilla inmate's fate

By Michael Doyle – Fresno Bee Washington Bureau   

01-14-12 -- A Chowchilla prisoner will have her fate decided by the U.S. Supreme Court. . . . For inmate Tara Sheneva Williams, this is not a victory. Williams had won an appeal that overturned her conviction for a 1993 murder in Long Beach. But on Friday, the Supreme Court agreed to hear California's challenge to a lower court's decision. . . . "It's really sad," Williams' attorney Kurt David Hermansen said Friday. "She's a mom with two kids, and she was hoping to get out." . . . Williams will have to wait while the Supreme Court considers whether the lower appellate court went too far in overturning her conviction. Given the 9th U.S. Circuit Court of Appeals' general track record, Williams' hopes may be a long shot.

U.S. Supreme Court upholds Nashua conviction despite debate over reliability of eyewitness testimony

By Joseph G. Cote, The Nashua Telegraph Staff Writer  

01-14-12 -- A Nashua man’s break-in conviction from 2008 was upheld for a final time this week when the U.S. Supreme Court denied Barion Perry’s claims that an eyewitness was unfairly influenced before identifying him. . . . The ruling, handed down last week, upholds the felony theft conviction resulting from Perry’s theft of two radio speakers from a parked vehicle. New Hampshire public defender Richard Guerriero had argued before the U.S. Supreme Court in November that judges’ courts should take special precautions to ensure eyewitness testimony is accurate. . . . The court denied Guerriero’s arguments and upheld Perry’s felony conviction.

Unanimous high court finds for church in EEOC fight

Tony Mauro, The National Law Journal  

01-11-12 -- A surprisingly unanimous Supreme Court on Wednesday endorsed a "ministerial exception" to employment discrimination laws, asserting that under the First Amendment, government must keep its nose out of the hiring and firing of clergy. . . . "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us," wrote Chief Justice John Roberts Jr. for the Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. "The church must be free to choose who will guide it on its way." . . . The ruling ends a lawsuit filed by the Equal Employment Opportunity Commission on behalf of Cindy Perich, a teacher and "commissioned minister" at a Lutheran school in Michigan. She claimed she had been fired in retaliation for threatening to file a lawsuit under the Americans With Disabilities Act. She disputed the school's treatment of her after she was diagnosed with narcolepsy, and the school said she was fired for insubordination and failure to follow internal dispute resolution procedures.

Ginsburg Opinion Rejects Due Process Inquiries on Eyewitness IDs; Sotomayor Dissents

By Debra Cassens Weiss, ABA Journal \

01-11-12 -- The U.S. Supreme Court has ruled there is no due-process requirement for judges to hold pretrial screenings to assess the reliability of eyewitness identifications in criminal cases. . . . Justice Ruth Bader Ginsburg wrote the majority opinion (PDF) rejecting a theft defendant’s claim that pretrial screening is needed because of the grave risk that mistaken identification will result in a miscarriage of justice. Justice Sonia Sotomayor was the only dissenter. . . . “When no improper law enforcement activity is involved,” Ginsburg wrote, “it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.”  ****** The case is Perry v. New Hampshire.

Lawyer makes startling argument in Supreme Court hearing on FCC

A lawyer arguing that the FCC has gone overboard in its regulation of broadcast nudity and language directed the justices' attention to the bare buttocks of statues in the Supreme Court. The justices are considering whether FCC rules are inconsistent. 

By Warren Richey, Christian Science Monitor Staff writer

01-10-12 -- Not often can one watch a former solicitor general of the United States directing venerable Supreme Court justices to observe naked posteriors of the marble statues that stand sentinel at the highest court in the land. . . . “There’s a bare buttocks there,” Washington lawyer Seth Waxman advised the startled justices during his oral argument on Tuesday. . . . “And there’s a bare buttocks here,” he said, pivoting and pointing across the ornate courtroom. . . . The black-robed justices obliged the lawyer by following his extended finger to a sculptor’s rendition of gluteus maximus. . . . This was no voyeuristic dalliance. Mr. Waxman was hoping to convince the high court that the Federal Communications Commission had gone haywire in threatening to sanction broadcast television stations for the fleeting appearance of a naked body part or of a blurted expletive during prime-time television.

Supreme Court Bars Federal Suit Against Private Prison Employees

By Debra Cassens Weiss, ABA Journal

01-10-12 -- A prisoner in a federal facility operated by a private company cannot sue its employees for constitutional violations, the U.S. Supreme Court has ruled. . . . The inmate, Richard Lee Pollard, had claimed medical staffers and other employees of the Wackenhut Corrections Corp. had failed to deliver adequate medical care after he slipped on a cart left in a doorway. . . . The majority opinion (PDF) by Justice Stephen G. Breyer refused to authorize a so-called Bivens action because state tort law provides an alternative route to collect damages.

Supreme Court Upholds Arbitration Provision in Credit Card Contract

By Debra Cassens Weiss, ABA Journal

01-10-12 -- The U.S. Supreme Court has ruled that consumers who received the Aspire Visa credit card are bound by a mandatory arbitration provision in their applications. . . . Justice Antonin Scalia wrote the majority opinion (PDF) in the case, CompuCredit Corp. v. Greenwood. The decision overturns a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals. Justice Ruth Bader Ginsburg was the only dissenter. . . . The plaintiffs had claimed in a class action suit that they were promised $300 in available credit, but were charged $257 in fees. They maintained that the Credit Repair Organizations Act gave them a right to sue. They cited a provision in the CROA requiring credit repair organizations to tell consumers, “You have the right to sue a credit repair organization that violates the Credit Repair Organization Act.”

Justices appear to lean toward FCC in case over broadcast TV 'indecency'

By Bill Mears, CNN Supreme Court Producer 

01-10-12 -- The Supreme Court appeared ready to give government regulators the continuing authority to regulate profanity and sexual content on broadcast television after a lively hour of arguments Tuesday. . . . The justices and lawyers all stayed polite, not actually using any obscene words, preferring the legally acceptable "f-bomb" or "s-word" to describe the controversial content at issue in the high-stakes free speech dispute. . . . The court will decide whether the Federal Communications Commission may constitutionally enforce its policies on "fleeting expletives" and scenes of nudity on television programs, both live and scripted. The agency had imposed hefty fines on broadcasters.

Court Overturns New Orleans Murder Conviction

Associated Press | ABC News 

01-10-12 -- The Supreme Court has overturned a death row inmate's conviction of killing five people in the justices' latest look at the conduct of prosecutors in the New Orleans district attorney's office. . . . The high court voted 8-1 to order a new trial Tuesday for Juan Smith, who was convicted of five murders at a 1995 party. The only witness to identify Smith gave inconsistent statements about whether he could recognize or identify Smith as one of the killers.

High court upholds ruling overturning 'Skid Row Stabber' verdicts

The U.S. 9th Circuit Court of Appeals had set aside Bobby Joe Maxwell's 1984 murder convictions because a key witness for the prosecution, a notorious jailhouse informant named Sidney Storch, had been exposed as a 'habitual liar.'

By David Savage, Los Angeles Times  

01-10-12 -- The U.S. Supreme Court has let stand a ruling that overturned murder convictions in two slayings tied to the so-called "Skid Row Stabber," who was thought to be responsible for the killing of as many as 10 homeless men in downtown Los Angeles in the late 1970s. . . . After a lengthy trial in 1984, Bobby Joe Maxwell was convicted of two murders and sentenced to life in prison. . . . Last year, the U.S. 9th Circuit Court of Appeals set aside his convictions because a key witness for the prosecution, a jailhouse informant named Sidney Storch, had been exposed as a "habitual liar." Storch, now dead, was known to read newspaper stories in his cell and then offer testimony that would be useful to prosecutors in exchange for favors, Judge Richard Paez wrote.

High court backs foreign campaign contribution ban

Associated Press | Bloomberg BusinessWeek 

01-09-12 -- The Supreme Court has dismissed an appeal seeking to expand the ability of foreigners to contribute to American political campaigns. . . . The justices on Monday upheld a federal court ruling in favor of the ban on foreign contributions from all but immigrants who permanently live in the United States.

In Texas voting rights case, Court chooses a narrow path

Tony Mauro, The National Law Journal

01-09-12 -- What was billed as a possible Supreme Court showdown over the constitutionality of the Voting Rights Act on Monday turned instead into narrower debate over how the redistricting of Texas legislative districts should proceed. . . . The Court devoted an unusual 75 minutes of time to hastily scheduled arguments in Perry v. Perez, a tussle over the new districts drawn by the Texas legislature to reflect the latest decennial census. Because Texas is a state that must, under the Voting Rights Act, obtain federal preclearance before it changes any of its electoral processes, the case seemed like a new battlefront for states that chafe under the law. . . . But the justices seemed uninterested in the broader question of whether it is constitutional for Congress to force jurisdictions, mostly in the south, to get federal approval for its district maps. Only Justice Anthony Kennedy mused aloud at one point that the law puts Texas at a "tremendous disadvantage" in planning its elections, in contrast to the mainly northern states that are not covered by the preclearance requirement.

Supreme Court appears sympathetic to Idaho couple in 4-year battle with EPA

By Robert Barnes, Washington Post 

01-09-12 -- Conservative members of the Supreme Court seemed outraged Monday by the Environmental Protection Agency’s actions in a four-year battle with an Idaho couple who want to build a house on land the EPA says contains sensitive wetlands. . . . Justices across the ideological spectrum appeared troubled by the EPA’s position that Mike and Chantell Sackett do not have the right to go court to challenge the agency’s wetlands decision. . . . But some justices got more worked up about the case than others, and Justice Samuel A. Alito Jr. led the parade. . . . “If you related the facts of this case . . . to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States?” Alito asked Deputy Solicitor General Malcolm L. Stewart, who was representing the EPA.

December 2011 

SCOTUS to Decide if Suit to Close Tribal Casino Can Proceed

By Mark Hansen, ABA Journal

12-13-11 -- The U.S. Supreme Court will decide whether a lawsuit to close a tribal casino in Michigan can move forward. . . . The court agreed Monday to hear arguments in two consolidated sovereign immunity cases over Indian trust lands: Match--E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak and Salazar v. Patchak, multiple sources report. . . . The tribe, also known as the Gun Lake Band, opened a casino last year on a rural 147-acre tract in Wayland Township, 20 miles south of Grand Rapids. But casino opponent David Patchak sued to shut it down by challenging the way the federal government had placed the land in trust for the tribe.

November 2011 

In privacy case, justices home in on the meaning of 'actual damages'

Marcia Coyle, The National Law Journal  

11-30-11 -- In a case watched closely by privacy and whistleblower advocates, lawyers for an HIV-positive pilot and the federal government clashed in the U.S. Supreme Court on Wednesday over whether damages for mental and emotional distress can be recovered for violations of the Privacy Act. . . . The justices gave little hint of how they would rule in a classic statutory interpretation argument over the meaning of the words "actual damages" in the 1974 law. . . . Enacted in the wake of the Watergate scandal and amid growing concerns about government use of computerized databases, the law prohibits federal agencies from disclosing "any record which is contained in a system of records" to any person or to another agency without the consent of the individual to whom the record pertains. It creates a private cause of action against an agency for willful and intentional violations and authorizes actual damages of no less than $1,000.

US top court agrees to hear Obama healthcare law

* Healthcare likely to be major issue in 2012 election

* Legal, policy analysts expect close Supreme Court vote

* Obama administration, 26 states appealed to high court

By James Vicini, Reuters

11-14-11 -- The Supreme Court agreed on Monday to decide the fate of President Barack Obama's healthcare law, with an election-year ruling due by July on the U.S. healthcare system's biggest overhaul in nearly 50 years. . . . The decision had been widely expected since late September, when the Obama administration asked the nation's highest court to uphold the centerpiece insurance provision and 26 states separately asked that the entire law be struck down. . . . The justices in a brief order agreed to hear the appeals. At the heart of the legal battle is whether the U.S. Congress overstepped its powers by requiring that all Americans buy health insurance by 2014 or pay a penalty, a provision known as the individual mandate.

Social Security Takes IVF Dispute to Washington

By Barbara Leonard, Courthouse News Service 

11-14-11 -- The Supreme Court on Monday took up a Social Security case involving a widow who used her late husband's frozen sperm to conceive twins, born 18 months after their father's death. . . . The 3rd Circuit ruled last year that the twins, B.N.C. and K.N.C., must be considered children under the Social Security Act as the "undisputed biological" offspring of a deceased wage earner, Robert Capato, and his widow, Karen. . . . On remand, a New Jersey federal judge would have to determine whether, "as of the date of Mr. Capato's death, his children were dependent or deemed dependent on him, the final requisite of the act remaining to be satisfied." . . . Social Security Commissioner Michael Astrue petitioned the Supreme Court to review. . . . The Philadelphia-based federal appeals court had nevertheless declined to find an equal protection issue in the case.

Citing Orwell, justices appear wary of GPS surveillance by police

Marcia Coyle, The National Law Journal  

11-08-11 -- Police use of GPS surveillance and society's expectations of privacy clashed in the U.S. Supreme Court on Tuesday as justices weighed new technology and its impact on Fourth Amendment rights. . . . With multiple references to the novel 1984, a majority of the justices seemed uncomfortable with the federal government's defense of law enforcement's warrantless use of a GPS tracking device on a suspected drug dealer's car over a four-week period. But the justices also struggled to find a legal way to regulate that type of surveillance. . . . "If you win, there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States," suggested Justice Stephen Breyer to Deputy Solicitor General Michael Dreeben. "You suddenly produce what sounds like 1984. What protection is there once we accept your view?"

An angry Court gives New Orleans prosecutors a scolding

Tony Mauro, The National Law Journal  

11-08-11 -- The Supreme Court took the New Orleans prosecutor's office to the woodshed on Tuesday, scolding its lawyer for what one justice said was a long history of accusations that the office has ignored the right of defendants to receive exculpatory evidence before trial. . . . Justice after justice, including conservative Antonin Scalia, admonished Assistant District Attorney Donna Andrieu for her office's failure, in the case before the Court, to turn over what they viewed as evidence that could have changed the course of the trial. "Surely it should have been turned over," Scalia said at one point. "Why don't you give that up?" . . . The setting for the Court's unusual display of anger was the oral argument in Smith v. Cain, a challenge to prosecutorial misconduct in the case of Juan Smith, convicted of murder in a 1995 rampage that left five people dead. Lawyers for Smith are asking for a new trial, citing statements that were withheld from defense lawyers impeaching the credibility of the only eyewitness to the crime.

In passport clash, a question of the president's powers

Tony Mauro, The National Law Journal 

11-07-11 -- A seemingly narrow-gauge dispute over the wording used on certain U.S. passports triggered a broad-ranging discussion at the Supreme Court on Monday about the separation of powers in matters of foreign policy. . . . The case before the Court is Zivotofsky v. Hillary Clinton, Secretary of State. It is a dispute over a 2002 federal law that directs the State Department, on request, to list Israel as the country of birth on passports for U.S. citizens who were born in Jerusalem. Jerusalem's status as a capital or even as part of Israel has been a touchy point for decades worth of presidents, fearful of spoiling the peace process between Israel and the Palestinians, who lay claim to at least part of the city.

U.S. Supreme Court rejects killer's appeal

By Allan Turner, Houston Chronicle

11-07-11 -- The U.S. Supreme Court today rejected Houston killer Duane Buck's request that it review his death sentence - a punishment handed down despite former Texas Attorney John Cornyn's assessment that it might have been tainted by racial considerations. . . . The high court stopped Buck's Sept. 15 execution in order to decide whether to take up the case. Buck, 48, was sentenced to die for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but she survived and later argued that the killer should be spared.

Race Factor Merits Look at Texas Death Row Case

By Barbara Leonard, Courthouse News Service 

11-07-11 -- Justices Sonia Sotomayor and Elena Kagan said Monday they would have wanted the Supreme Court to review a Texas death sentence case "marred by racial overtones" and potential misconduct by state prosecutors. . . . After Duane E. Buck was convicted of capital murder in Texas, the prosecutor emphasized that black men like Buck are statistically more likely to commit violent crimes. A jury sentenced Buck to death. . . . Buck has failed to convince state and federal courts to review his case, with the most recent refusal coming from the Supreme Court on Monday. . . . A seven-page dissent authored by Sotomayor notes, however, that the psychologist who testified at Buck's sentencing hearing, Walter Quijano, has an unsettling record. In six capital cases to which Quijano was called as a witness, as with the Buck trial, "the salient fact was that the prosecution invited the jury to consider race as a factor in sentencing. And in each case, the defendant was sentenced to death."

Supreme Court Reinstates Death Sentence in Summary Reversal of 6th Circuit

By Debra Cassens Weiss, ABA Journal

11-07-11 -- The U.S. Supreme Court has reinstated the death sentence of an Ohio inmate in a summary reversal of the Cincinnati-based 6th U.S. Circuit Court of Appeals. . . . The defendant, Archie Dixon, was convicted of murdering a man to steal his car. According to the Supreme Court’s per curiam opinion (PDF), the 6th Circuit “purported to identify three … grievous errors” by the Ohio Supreme Court when the state court affirmed Dixon’s conviction and found no Miranda violation.

Supreme Court vs. 9th Circuit: Roberts Defends Scalia's Honor As Justices Ready To Reverse Case

Mike Sacks, The Huffington Post

11-01-11 -- It's 9th Circuit smackdown season at the Supreme Court and, judging from Tuesday morning's oral arguments, Richard Lee Pollard could be the latest defendant caught in the middle. . . . Pollard was a federal prisoner on kitchen duty when he slipped, fell and broke both his elbows. He claims that the way prison employees treated him for the next several months caused him so much additional pain and suffering that they violated the Eighth Amendment's ban on cruel and unusual punishment. He sued the offending staff members under a 40-year-old Supreme Court case, Bivens v. Six Unknown Federal Narcotics Officers, that allows individuals to win money damages when federal officials violate their constitutional rights. The last time the Supreme Court actually allowed such a case to go forward was in 1980.

October 2011

Justices restore grandmother's conviction in shaken baby death

By Bill Mears, CNN  

10-31-11 -- The Supreme Court issued a final, stinging rebuke of a lower court's decision on three separate occasions to dismiss the assault conviction of a grandmother in the shaking death of her 7-week-old grandson. . . . The justices in an unsigned opinion Monday said the 9th Circuit U.S. Court of Appeals "plainly erred in concluding the jury's verdict was irrational." The high court for the last time reinstated the conviction of Shirley Ree Smith, ending a 15-year legal fight. . . . Prosecutors alleged Smith lost her temper and violently shook Etzel Dean Glass III when he woke up crying and in need of a diaper change in Van Nuys, California, in 1996. The boy's mother had put him to sleep on a sofa, and the grandmother was sleeping on the floor next to Etzel. . . . An initial diagnosis of sudden infant death syndrome (SIDS) was changed to shaken baby syndrome (SBS) after an autopsy. That conclusion formed the basis of the government's case, but was strongly challenged by the defense. A jury convicted her, and Smith, then 37, was sentenced to 15 years to life.

Justices avoid highway cross dispute

by Joan Biskupic, under USA Today News / Tucson Citizen 

10-31-11 -- The Supreme Court on Monday declined to return to the divisive question of when religious symbols are allowed on government property, rejecting a dispute over the placement of large white crosses on Utah roads to commemorate fallen troopers. . . . Over the lone dissent of Justice Clarence Thomas, the court left in place a lower court decision that said the Utah crosses violated the separation of church and state. . . . “Today the court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles,” Thomas wrote, referring to the constitutional prohibition against government enacting laws that establish, or endorse, religion.

Lies About Military Medals to Get U.S. Supreme Court Review in Speech Case

By Greg Stohr - Bloomberg News

10-17-11 -- The U.S. Supreme Court agreed to decide whether the Constitution’s free speech clause protects people who falsely claim to have been awarded military medals. . . . The justices today said they will hear arguments on the 2005 Stolen Valor Act, which punishes people with as much as a year in prison for lying about receiving a medal. A federal appeals court declared the law unconstitutional, and President Barack Obama’s administration is appealing. . . . The law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system,” U.S. Solicitor General Donald Verrilli argued in the administration’s bid for high court review. ******** The case, which the court will consider and decide in the first half of next year, is United States v. Alvarez, 11-210.

Unreliable eyewitnesses put defendants on death row

By Michael Kirkland, UPI

10-16-11 -- Does the routine use of eyewitnesses in American criminal cases contribute to trials that put innocent people behind bars -- even on death row? Evidence suggests it does. . . . The U.S. Supreme Court is getting ready to hear a case out of New Hampshire that deals with a subtle but important point in the witness process. . . . Lawyers for a hapless burglar say the case asks whether the due process -- or fair trial and procedure -- guarantee in the 14th Amendment bans the use of all "unreliable eyewitness identification" arising from "impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of 'improper state action?'" -- meaning police manipulation.

The Supreme Court: When Double Jeopardy Isn't Double Jeopardy

By Michael A. Lindenberger, TIME   

10-14-11 -- The Supreme Court has decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection are. . . . Even Americans who know very little about the U.S. Constitution know this much: once a jury decides you are innocent of a crime, the government can't keep hauling you back into court to try your case over again. It's called the prohibition on double jeopardy, and it's in the Bill of Rights because the Founding Fathers thought it was an essential bulwark against tyranny. But like most truisms in American law — that the police have to read you your rights before they question you, that it takes a unanimous verdict to be convicted, or that the police need a warrant to search your house — there are exceptions large enough to drive a prison bus through. . . . The Supreme Court this week decided to hear a case out of Arkansas that will test just how big the exceptions to the double-jeopardy protection contained in the Fifth Amendment are, and experts say the decision could resolve long-standing differences between the states about when it's O.K. for the government to retry defendants when it can't get a conviction the first time. Because of the nature in which the decisions were made in Arkansas, the U.S. Supreme Court could use the case to decide what constitutes an official verdict. (Read about your Bill of Rights and pleading the Fifth Amendment.)

Supreme Court refuses to reinstate Abu-Jamal death sentence

By Joseph A. Slobodzian, The Philadelphia Inquirer Staff Writer

10-12-11 -- The U.S. Supreme Court on Tuesday refused to hear a petition by the Philadelphia District Attorney's Office seeking to reinstate the death penalty against Mumia Abu-Jamal. . . . The ruling in the case of Abu-Jamal - convicted of murder in the 1981 shooting of Philadelphia Police Officer Daniel Faulkner - was one of more than 250 appeals summarily rejected by the high court without comment. It means that, unless the District Attorney's Office decides to conduct a new sentencing hearing, Abu-Jamal, 57, will continue serving a life sentence with no chance of parole.

High court wrestles with extent of ministerial exception to employment bias suits

Marcia Coyle, The National Law Journal 

10-05-11 -- The Supreme Court on Wednesday plunged into a thorny thicket surrounding government enforcement of job bias laws and religious employers, and emerged apparently divided over how to protect the interests of both. . . . The justices heard arguments on whether the Equal Employment Opportunity Commission could sue a Lutheran Church school under the Americans with Disabilities Act because the school fired the teacher after she threatened to file a disability discrimination charge. . . . The U.S. Court of Appeals for the 6th Circuit held that the so-called ministerial exception, which usually bars job bias suits involving ministers and priests, did not apply because the teacher, Cheryl Perich, performed primarily secular duties at the school. . . . In Wednesday's arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the justices wrestled with the definition of "minister" and how much courts would have to interfere in religious organizations' activities and doctrines in order to determine who is or is not a "minister." The ministerial exception is decades old and is rooted in the First Amendment's religion clauses.

Justices hear religious workplace dispute

By Joan Biskupic, USA TODAY 

10-05-11 -- The Supreme Court struggled Wednesday with a case fundamental to the separation of church and state, testing when people who work for religious organizations can sue for job discrimination. . . . A Michigan teacher diagnosed with narcolepsy but eventually cleared to work sued under the Americans with Disabilities Act when a Lutheran school fired her. . . . The Hosanna-Tabor Evangelical Lutheran Church said Cheryl Perich violated a core church principle by bringing her grievance to the U.S. Equal Employment Opportunity Commission (EEOC) rather than using church processes to try to win her job back. Hosanna-Tabor is asking the justices to throw out the case, based on a so-called "ministerial exception," which bars some job-related lawsuits against religious organizations and is intended to protect churches from government interference. A lower U.S. appeals court had ruled for Perich. . . . The appeals court rejected Hosanna-Tabor's "ministerial exception" defense, noting that Perich's job as a fourth-grade teacher was mostly secular. She taught math, social studies, music and other subjects, along with religion. . . . In his appeal on behalf of Hosanna-Tabor, University of Virginia law professor Douglas Laycock told the justices, "Churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

By the numbers: Gearing up for OT2011

Kedar Bhatia Statistics      SCOTUSblog    

10-04-11 -- This is the first post in a series analyzing statistical trends at the Supreme Court. For a more complete look at the statistics we collect on the Court, you can find all of our up-to-date charts and graphs here. . . . The Supreme Court has now granted just over half the cases that it is likely to hear during October Term 2011, so it seems like as good a time as any to begin breaking down the cases that have been accepted for review. The Court has granted 49 total petitions, but one was dismissed under Rule 46 soon after it was granted, so we will use 48 as the total. . . . The Court’s workload: With 48 cases on the docket for OT2011, the Court is in good shape moving into the fall. During the Roberts Court, the Court has typically had between 45-55 cases on the docket following the Long Conference, and the current pace should allow it to grant cases at its own pace through January to fill the Term. The Court remains on pace after granting only seven cases at the Long Conference because it granted an unusually high number of cases at the final June conference – 13.

Death row inmate harmed by law firm error may get second chance from high court

Marcia Coyle, The National Law Journal

10-04-11 -- Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court. . . . In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state's arguments that they should do nothing about it. . . . Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York's Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys' admission.

Supremes keep record of rejecting eligibility cases perfect

Justices have refused to hear every challenge so far, but more still to come

By Bob Unruh, © 2011 WND   

10-03-11 -- It's the unloved relative who just won't go away, the chronic pain that annoys all the time or the gray that no amount of washing will take out of hair, only in the U.S. Supreme Court, it's the Barack Obama eligibility issue. . . . The justices, meeting in conference last week, refused yet again even to hear arguments in a case involving the constitutional dispute, as they have for every other eligibility dispute that they've been presented with since before Obama's election. . . . The most recent decision, announced today, involved the Keyes vs. Bowen case out of California. The court simply posted an online note that the petition for the justices to hear evidence on the arguments and clear up the cloud of uncertainly on the issue was denied. . . . The case had been brought by Gary Kreep of the United States Justice Foundation, who told WND he was disappointed. . . . "We were very hopeful that the Supreme Court would take the case to finally resolve the issue," he said. But, "given the comments made by Justice Thomas and then others not on the Supreme Court we're not terribly surprised." . . . He said, however, that there are more cases making their way to the U.S. Supreme Court, including another case in which he is involved, the Drake v. Bowen case that now is pending at the 9th U.S. Circuit Court of Appeals. . . . When the decision is reached at that level, he said, it appears likely that once more the Supreme Court justices will be confronted with what many involved in the cases have described as a constitutional crisis in which a sitting president's eligibility to be president remains in doubt.

First Monday in October marks start of new Supreme Court term; justices hear to Medicaid case

By Associated Press, Washington Post 

10-03-11 -- The Supreme Court is beginning a term expected to be dominated by health care with arguments Monday in a closely watched case involving the Medicaid program for poor Americans. . . . The first order of business is disposing of appeals in more than a thousand cases that piled up over the summer.

Supreme Court set to open crucial term

The justices could make decisions on President Obama's healthcare law, enforcement of immigration laws and affirmative action in higher education.

By David G. Savage, Washington Bureau Los Angeles Times  

10-02-11 -- The Supreme Court on Monday opens one of its most anticipated terms, in which the justices could strike down President Obama's healthcare law, empower local police to arrest illegal immigrants, and declare an end to affirmative action in colleges and universities. . . . The cases coming before the court "address some of the central issues facing the country," said former Solicitor General Walter Dellinger. The clashes over healthcare and immigration "are not mere lawyers' issues, but fundamental questions about how the country is governed." . . . "By June of 2012, this may prove to be among the most momentous terms in recent decades," said Elizabeth Wydra, chief counsel for the Constitutional Accountability Center in Washington. . . . The justices will decide over the next few months whether to hear the cases. If they do, rulings will be handed down by late June, just as the presidential campaign moves into high gear.

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