The past week in plain English

The following is a “plain English” summary of the Court’s and blog’s activities last week by Professor Lisa McElroy of Drexel University’s law school.

Happy New Year!   Although the Court did not get busy with official business until the Conference on January 8, there was plenty going on at 1 First Street, N.E., this week, as well as in some of the courts of appeals.  Most of the cases the Supreme Court hears start in the federal district courts or federal agencies, go to the federal courts of appeals (also known as circuit courts), and then go on from there to the Supreme Court, although some are cases from state courts presenting questions of federal law.

On Monday, the Court published the list of oral arguments for the “March sitting.”  The Supreme Court typically hears oral argument on Mondays, Tuesdays, and Wednesdays for two weeks each month.  Most arguments take place in the mornings between 10:00 and 12:00, and each case is usually allotted an hour (thirty minutes per side).  However, arguments occasionally take place in the afternoon as well and some cases (like this Monday’s original action, Alabama v. North Carolina) are granted extended argument time.

Also on Monday, Lyle wrote about the dismissal of a case addressing whether prosecutors are liable for money damages if they purposefully arrange for false testimony.  Why did the Supreme Court dismiss the case?  Well, even though the parties had already briefed and argued the case, they agreed to settle, which they can do at any time.  Because the Constitution says that federal courts can only hear an actual “case” or “controversy,” as opposed to settled lawsuits, the Supreme Court had to dismiss the case.  Some scholars have been upset that the Court did not get the chance to decide the case because it presented such an important issue.

On Tuesday, Jay discussed Justice Scalia’s recent remarks at the Mississippi College of Law that Presidents should appoint Justices from more diverse backgrounds.  Here are some of the jobs that were held by members of the current Court: Justices Alito and Sotomayor were prosecutors, Justice Thomas was head of the EEOC, Justice Ginsburg was a law professor and lawyer for the ACLU, Justice Stevens was a lawyer in Chicago, Justice Scalia was a law professor, and Chief Justice Roberts was a private lawyer and also worked in the Solicitor General’s office.  Justice Scalia’s objection was that they all also had experience as judges before they went to the Court; some have been judges for longer than they held any other position.  The Constitution does not limit the qualifications of Supreme Court Justices; they do not even have to be lawyers, though a non-lawyer would probably have a hard time getting confirmed by the Senate.

On Tuesday, Wednesday, and Thursday, Lyle wrote about Boumediene, a 2008 case granting prisoners held by the United States at Guantanamo Bay the right to challenge their detention (“seek habeas corpus”) in U.S. federal courts.  This week, the federal court of appeals in Washington heard a follow-up case:  Maqualeh v. Gates examines whether detainees in other military prisons, such as one in Afghanistan, have the same right.  Last year, a federal trial judge said “no” on the basis of the Boumediene decision.  Still, those who watched the oral argument observed that the D.C. Circuit seems split on this issue, with two judges seeming to think that the Supreme Court intended in Boumediene to extend the right beyond Guantanamo detainees, but wondering about the limits of the habeas right.  We will probably get an opinion from the court of appeals in a few months, but many think the case is destined for a final decision by the Supreme Court.

This week, the D.C. Circuit also decided Al-Bihani v. Obama.  The court held that the law of war – or, more broadly, international law generally – did not apply to the President’s detention power.  Therefore, the President has broad power to detain terrorist suspects, especially during an ongoing war when the nation’s security interests are paramount.  As Lyle noted, practically, the ruling may make it harder for detainees to win their petitions for release.

On Tuesday, Lyle also wrote about the Michigan case about carp, in which the state of Michigan (joined by several other states and one Canadian territory) wants the Supreme Court to order Illinois to block Asian carp (which damage Michigan’s fishing industry) from entering Lake Michigan by closing shipping locks.  He explained that the United States has asked the Court to decline to order new steps to address the migration issue.  The Solicitor General, in her brief to the Court, argued that the case should instead be decided by the lower federal courts, without starting in the Supreme Court.  She also argued that the migrating carp do not pose any immediate harm, so that the Court does not need to hear the case now, especially because closing the locks and sluices on the waterways would cause all kinds of other problems.  The Court could respond by doing one of two things:  agreeing with the Solicitor General and declining to do anything, or treating the case as a new “original” action (i.e., lawsuit started in the Supreme Court), which it could decide whether or not to hear.

Perhaps the most interesting point in Adam’s round-up on Wednesday was his note that Justice Souter heard a First Circuit case this week.  Retired Justices are still judges, but they cannot sit on the Supreme Court.  But they can choose to “sit by designation” (i.e., sit temporarily on courts not their own) on other federal courts.  Justice O’Connor has also done so from time to time since her retirement in 2005.

On Friday, Lyle offered in-depth insight into Briscoe v. Virginia, a Confrontation Clause case which will be argued on Monday.  The Confrontation Clause of the Sixth Amendment says that a criminal defendant has the right to be confronted with witnesses against him – in other words, to have witnesses to come to court, testify, and submit themselves to cross-examination.  At issue in this case are drug reports generated by crime labs and the analysts who produce them.  Specifically, should the reports be allowed to stand on their own in court, or should the analysts have to testify?  And, even more specifically, if the analyst does have to testify, who has to call him/her as a witness: the prosecution or the defense?  What’s interesting about this case, as I explained in last week’s post, is that it is almost identical to a case the Court decided just last Term.

Last week, when discussing Briscoe, I explained the concept of stare decisis.  The case also presents a great opportunity to explain a term you’ll see bandied about here on SCOTUSblog:  GVR.  “GVR” (also defined last week in the blog’s Glossary) stands for “granted, vacated, and remanded.”  That means that the Court will grant certiorari, vacate (or get rid of) the appellate court’s decision in the case, and remand (or send it back) to the trial court to decide the case in light of a new development of the law.  GVRs often take place when the Court decides a case which affects other cases currently waiting on cert. decisions.  Why is that relevant here?  Well, when the Court decided Melendez-Diaz last term, Briscoe was waiting on a cert. decision.  Most people thought the Court would issue a GVR because Briscoe was so similar to Melendez-Diaz.   Unexpectedly, the Court granted cert. outright, meaning that it would actually decide the case on its own merits.

OK, one more term you should know when understanding why the Court granted cert in Briscoe:  the Rule of Four.  The Rule of Four applies when the Conference is deciding whether to grant cert in a case.  It takes the vote of at least four Justices to do so.  Because the four members of the Melendez-Diaz dissent are still on the Court, but the majority lost its fifth vote when Justice Souter retired, Lyle and I (among many others) have speculated that those four dissenters voted to grant cert in Briscoe. Of course, who votes to hear a case is totally confidential, so it’s unlikely that we’ll ever know for sure.

On Friday, Lyle discussed some issues related to McDonald v. Chicago, the gun rights case the Court will hear in March.  McDonald is a follow-up to the Heller case from two Terms ago, in which the Court decided that the Second Amendment gave individuals a right to own guns unrelated to their service in a militia.  Heller only explicitly applied to the federal government, so McDonald will require the Court to decide whether the same rule applies to laws passed by state and local governments (like Chicago).  The big issue this week was whether the Court would let the NRA participate in the oral argument.  The NRA is not a party to the case, but says that it wants to make arguments that it doesn’t think McDonald’s counsel will make.  McDonald does not want to yield the argument time to the NRA.

Also on Friday, we learned that the Court had granted cert in one new case, Dolan v. United States, in which the Court will decide whether a federal court’s restitution order is valid even if it was entered after the deadline under a federal law.  Dolan involves a “circuit split” – i.e., an issue on which the courts of appeals are divided.  The Court grants cert. in lots of cases involving circuit splits, especially when they are “entrenched,” or unlikely to be resolved without the Supreme Court announcing a single, uniform rule.  Because federal law governs the entire United States, the Court sees it as important to ensure that the law is interpreted the same way across the country.

Looking forward to the week ahead, we’ve got some great cases slated for oral argument, as well as some top advocates who will be arguing them. Although any lawyer who has been licensed to practice law in a state for three years and who is in good standing may become a member of the “Supreme Court bar” and file briefs and argue cases there, the phrase “Supreme Court bar” is also used to refer to the relatively small group of attorneys who regularly practice there.   Amy Howe and Kevin Russell of Howe & Russell both have arguments, and we’ll  hear from Supreme Court veterans Walter Dellinger and Carter Phillips.  Solicitor General Elena Kagan will also argue a key case about federal vs. state power.  The Court has also indicated that it will likely issue decisions on Tuesday and Wednesday.