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Saturday, November 13, 2004

5:37 PM | Marty Lederman  

Probably No Decision in Booker and Fanfan Until December

It appears that the Court will not be issuing any further opinions until at least November 30th. Other than 11/30, the possible decision days prior to January 11, 2005 are December 1st, 7th, 8th, and 13th.

Friday, November 12, 2004

10:49 AM | Heather Lloyd  

Today's News

The AP’s Gina Holland has this article on findlaw.com discussing a talk given by former Solicitor General Theodore Olson to the Federalist Society during which he speculated about possible Supreme Court nominees.

Patrick Skeehan of Georgetown University’s The Hoya has this article on Michael Newdow, the respondent in last term’s Pledge case, and his debate on church versus state at Georgetown.

BusinessWeek Online has this analysis and commentary on possible changes to the Court.

Elisabeth Bumiller and Neil A. Lewis of The New York Times
Have this article on speculation surrounding Alberto Gonzales’s appointment to Attorney General as a stepping stone to a possible Supreme Court nomination.

Thursday, November 11, 2004

6:08 PM | Lyle Denniston  

Another Bush v. Florida Courts

Sometime this month, Florida Gov. Jeb Bush will be making a highly unusual claim in an appeal his lawyers will be filing in the Supreme Court. The petition will argue that the governor's federal constitutional rights have been violated by the Florida courts' handling of one of the nation's most emotionally charged right-to-die cases -- the case of Terri Schiavo.

Terri -- Theresa Marie Schiavo -- has been in a persistent vegetative state for more than 14 years. On February 25, 1990, in an incident that began years of heartache for her family and of bitter controversy between her husband and her parents, Terri suffered cardiac arrest that resulted in severe brain damage. She has never regained consciousness. Since the spring of 1998, husband Michael Schiavo has been attempting to get a court order authorizing an end to life-prolonging medical procedures.

Up to now, the controversy over withdrawing a feeding tube has been a matter for the state courts of Florida, relying on state law. The Florida Supreme Court, in its latest ruling September 23 upholding a court order that would allow her to die, based its decision entirely on the Florida state constitution. (That ruling is on hold until at least November 29, to allow Gov. Bush to appeal to the Supreme Court.) Lower state courts have ruled repeatedly that it would be Terri's wish, if she could express it, that she not continue living in her present condition. Her husband says that she voiced that wish to him, and state courts have accepted his word.

Gov. Bush, in order to take the dispute on to the Supreme Court, must raise a federal question; the Court has no authority to second-guess state law conclusions. Although the petition has not yet been filed, the arguments that his attorneys will be making are already quite clear, because they have been explored fully in filings in the state courts.

Gov. Bush has not been a party to the underlying court cases litigated over the past six years over Terri Schiavo's condition and her fate. But he got involved in the controversy when he used unusual powers, granted him by the state legislature last year in the so-called "Terri's Law," to override the state court order to terminate life support. The feeding tube actually had been removed on October 15 of last year, but six days later it was re-inserted on the governor's order; the legislature authorized him to issue such an indefinite stay, and he did so immediately.

That led to a lawsuit against Bush by Michael Schiavo, challenging the authority of the legislature and the governor, acting in tandem, to negate the court order. It is that separate lawsuit that Bush will be appealing, because the Florida Supreme Court ruled that the separation-of-powers doctrine of the Florida constitution was violated when the legislature handed the governor that authority, and when the governor used that power to undermine the court order. "The continuing vitality of our system of separation of powers precludes the other two branches from nullifying the judicial branch's final orders," the state's highest court said.

Bush has claimed that the courts could not review the constitutionality of "Terri's Law" until after there had been a full factual examination of the present circumstances of Terri's condition and the wishes she might assert now. State courts concluded that those facts, while directly at issue in the proceedings over whether to end life support, were beside the point in Michael Schiavo's lawsuit challenging the constitutionality of "Terri's Law."

The governor, however, has been arguing -- and will argue to the Supreme Court -- that he has a federal constitutional right to due process before his order to re-insert the tube can be judged. That due process right, according to his lawyers, includes a right to discovery, a right to cross-examine witnesses, and a right to a jury trial or an evidentiary hearing on the facts as they presently exist. Citing a 1996 U.S. Supreme Court ruling, in the case of Richards v. Jefferson County, Bush is expected to contend that his due process rights under the 14th Amendment are violated because his powers as governor have been nullified on the basis of facts established in earlier litigation in which he was not a party. His first move in the Supreme Court is expected to be a request to stay the Florida Supreme Court ruling while he appeals.



1:15 PM | Heather Lloyd  

Today's News

News on yesterday’s oral arguments in No. 03-923, Illinois v. Caballes:
Jan Crawford Greenburg of The Chicago Tribune;
Mark Helm of The Seattle Post-Intelligencer;
Stephen Henderson of Knight Ridder;
The AP’s Gina Holland in The Boston Globe;
Charles Lane of The Washington Post;
Dahlia Lithwick of Slate;
Michael McGough of The Post-Gazette;
Abdon Pallasch of The Chicago Sun Times;
David Savage of The L.A. Times;
Jon Sawyer of The Post-Disbatch;
Nina Totenberg of NPR;
Eric Weslander of Lawrence Journal World; and
this UPI report in The Washington Times.

News on yesterday’s oral arguments in No. 03-1039, Brown v. Payton:
David Savage of The L.A. Times;
Richard Willing of USA Today; and
The AP’s Hope Yen on findlaw.com.

Marcia Coyle of The National Law Journal has this article (subscription required) on last week’s oral arguments in No. 03-1160, Smith v. City of Jackson. [Disclosure: Goldstein & Howe, P.C. for petitioners.]

Bloomberg has this report on the possibility of President Bush nominating a young justice to the Court should the opportunity arise. (Thanks to How Appealing for the link.)
11:55 AM | Heather Lloyd  

More briefs in MGM v. Grokster

We've added a few more amicus briefs to Tom's Tuesday posting on MGM v. Grokster.
8:11 AM | Marty Lederman  

October Argument Transcripts

Transcripts from all of the arguments held in October are now available here.
8:07 AM | Marty Lederman  

January Argument Calendar

The Court has issued the calendar for the ten cases to be argued between January 10th and 19th.

Wednesday, November 10, 2004

9:18 PM | Tom Goldstein  

John Roberts Post #4

This post finishes off my reactions to the emails I’ve received regarding my suggestion that the President will nominate Judge John Roberts to the position of Chief Justice should William Rehnquist retire.

The email traffic has uniformly been strongly supportive of Judge Roberts's intelligence and intellect, and (in one instance) on more light hearted grounds.

A number of emails have suggested that the President would put forward a nominee to replace the Chief who is better known as firmly conservative, and save a nominee like John Roberts for an appointment of a more moderate Justice like Sandra Day O’Connor. These emails generally suggest that Democrats will be more willing to accept an extremely conservative nominee to replace the Chief because the Court would not move to the right. A related view of these correspondents is that, because Democrats (they think) would be more pliant with respect to replacing the Chief (but not a later appointment), the President is likely to put forward a more conservative nominee to replace the Chief.

I doubt the premise of this line of argument. It’s true that a replacement for the Chief could not move the Court to the right in any practical sense. But the nominee can extend the Chief’s conservative legacy for decades. So very serious Democratic opposition should be expected. And I think the White House knows it.

Several emails proposed alternative nominees to Judge Roberts. Favorites include J. Harvie Wilkinson and Michael McConnell. Another email suggested several other candidates in the same age range as Judge Roberts: Judges Jerry Smith, Edith Jones, Alex Kozinski, Frank Easterbrook, and Samuel Alito. Interestingly, and to my surprise, no one seriously put forward Michael Luttig, which seems like a serious omission.

I’ve expressed my view that unfortunately Judge Wilkinson will probably be regarded as too old; in an earlier era, he would have been regarded as young for a Supreme Court appointment. Judge McConnell is similarly respected uniformly, but he would face fierce opposition because of his stand against Roe. He probably is the most confirmable anti-Roe candidate, but the groundswell of bipartisan support for him at the court of appeals stage would probably lose its Democratic/liberal elements very quickly in the event of a Supreme Court nomination. Judge Kozinski is brilliant, but seems too quirky for a President seeking reliably conservative nominees. It’s possible to go candidate-by-candidate through this and other lists, but doing so would be a disservice to the particular judges involved, each of whom would deserve a detailed study of his or her record.

One email suggested I was too quick to dismiss Miguel Estrada, given that other nominees have come to the Court without first serving as judges – e.g., Rehnquist, Powell, Warren, White, Jackson, Douglas, Frankfurter, Black, and Brandeis. Those were all special individuals and special cases, however, and the times have changed as well. I’m not saying that a U.S. Senator couldn’t be nominated directly to the Supreme Court, but it won’t happen for a partner at a Washington, D.C. law firm.

Other emails noted that the nomination of another white guy to the Court would represent a missed opportunity to make a statement to the country. Twice, it was suggested that the elevation of Clarence Thomas to be Chief Justice would accomplish that goal; once, Justice O’Connor was proposed. I think the demographics point is an important one. I’ve previously explained why I don’t think elevation is likely. As far as an appointment to an Associate Justice position is concerned, the most likely candidates (by far) are Janice Rogers Brown and Emilio Garza. If the President is interested in fighting Democrats in a pitched battle, I think he will appoint one of those two individuals; if not, he won’t.

Incidentally, I think that the nomination (and what looks to be a relatively easy path to confirmation) of Alberto Gonzalez to be the new Attorney General changes the demographic calculus of Supreme Court appointments. It decreases the pressure to make a Supreme Court appointment of a Hispanic. And (assuming that confirmation does proceed relatively smoothly) it makes it harder to paint a Democratic filibuster of Emilio Garza as anti-Hispanic.

One email suggested that the Democrats would block Roberts, pointing to the fact that Roberts’s first nomination to the D.C. Circuit stalled. I don’t think that there is anything that Democrats could point to that is a plausible basis for blocking Judge Roberts. One email anticipated that the Democrats would still criticize Judge Roberts on anti-choice grounds, despite the fact that the brief he signed in Rust v. Sullivan was on behalf of the government. That’s almost certainly true, but it’s not a criticism that has any traction.

Another email indicated that the initial impression left by Judge Roberts’s opinions suggests that he isn’t a doctrinaire conservative, which could enhance the prospect that conservatives will perceive a possible “David Souter problem.” That’s probably true, although there are a couple of exceptions. I’ll be exploring Judge Roberts’s rulings in later posts.

One email suggested that the President might nominate one of the liberals – such as Stephen Breyer – to be Chief Justice as part of a package deal with a more conservative nominee for Associate Justice. No.

Let me add one final thought that hasn’t been discussed thus far. Assume that the perception of a potential “David Souter problem” is enough to preclude a nomination of Judge Roberts for the time being. The D.C. Circuit isn’t an ideal place for a judge to enhance his or her conservative credentials over a very brief period of time, at least for a judge who isn’t aggressively outspoken. The White House could take the Ken Starr approach. Then-Judge Starr left the D.C. Circuit to become the Solicitor General, a move that many saw as a prelude to a Supreme Court nomination, should a seat open. With Ted Olson having resigned as the Solicitor General, Judge Roberts could take that position, where he would have the opportunity to aggressively advocate the Administration’s positions and reintroduce himself to a broader national base of conservatives, as a prelude to a possible later Supreme Court nomination.

As I mentioned in an earlier post, Judge Roberts's departure would open up another D.C. Circuit slot. The President could renominate Miguel Estrada, but (I expect at Estrada’s urging) would likely only do so if the filibuster rules were changed in the Senate. Instead, I would anticipate a nomination of Paul Clement, the current Acting Solicitor General, who is unquestionably the star of the younger generation of conservative lawyers.
10:59 AM | Heather Lloyd  

Tum Filing

Today we filed this Response to Conditional Cross-Petition in No. 04-231, Barber Foods v. Tum.
10:52 AM | Heather Lloyd  

Today's News

Here is The Washington Post’s Supreme Court Calendar on today’s oral arguments.

News on the federal government’s brief in Ashcroft v. Oregon, which asks the Court to give federal agents the power to discipline Oregon physicians who assist dying patients in committing suicide:
Jim Barnett of The Oregonian;
David Savage of The L.A. Times;
The AP’s Gina Holland in The Boston Globe; and
CNN.com has this AP article.

News on the Court’s opinion, issued yesterday, in Leocal v. Ashcroft:
Linda Greenhouse of The New York Times;
Charles Lane of The Washington Post;
Patty Reinert of The Houston Chronicle;
David Savage of The L.A. Times;
Nina Totenberg of NPR;
The AP’s Hope Yen in The Boston Globe; and
this Miami Herald report.

Andrew McCarthy has this essay on National Review Online discussing “The Trouble with Roe.”

The AP’s Gina Holland has this article on findlaw.com discussing the Chief Justice.

Dahlia Lithwick of Slate.com has this article on yesterday’s oral arguments in No. 03-725, Pasquantino v. United States.

Warren Richey of The Christian Science Monitor has this article on No. 03-1597, Locke v. Farrakhan and No. 04-175, Muntaqim v. Coombe. The Court denied cert. in both cases on Monday.

Warren Richey of The Christian Science Monitor has this article on No. 03-923, Illinois v. Caballes, which will be argued at the Court today. Nina Totenberg has this report on the same case.

Clay Calvery has this article in The San Francisco Chronicle on potential changes to the Court if one or more justices retire.
9:41 AM | Amy Howe  

Today at the Court

The Court will hear arguments today in No. 03-1039, Brown v. Payton, and No. 03-923, Illinois v. Caballes. As a reminder, you can read Sonja Starr's write-up of Caballes below; Danielle Goldstein's write-up of Payton is available here.
7:55 AM | Marty Lederman  

SG Petition in Ashcroft v. Oregon

The Government's peititon in No. 04-623, Ashcroft v. Oregon, which Lyle discussed yesterday, can be found here. The caption of the case will, of course, change soon, in light of the Attorney General's impending resignation.

Tuesday, November 09, 2004

8:33 PM | Sonja  

Tomorrow's Argument in Illinois v. Caballes, No. 03-923

Here is the scenario addressed by this case: Cop A pulls over Driver for speeding. During the stop, Cop B shows up with a drug dog, leads it around the car, and when it alerts, searches the trunk and finds marijuana. Everyone agrees Cop A had probable cause to pull over Driver, and everyone agrees, at least at this stage, that until the drug sniff was conducted, there was no reasonable, individualized basis for suspecting that Driver had drugs in the car.

The question is whether the drug sniff violated the Fourth Amendment, either because it constituted an unreasonable “search” or because it went beyond the legitimate scope of the traffic stop, converting the otherwise permissible stop into an unreasonable “seizure.”

The scenario above is apparently not an isolated occurrence; the police officers testified that it was routine procedure. So this case, depending on your perspective, involves either the legitimacy of a crucial and long-practiced law enforcement practice, or the threat of police state-type tactics in which traffic stops are used as mere pretexts to justify privacy intrusions the Fourth Amendment would otherwise forbid. Or maybe both. Or hey, maybe neither. But if you want to read more of what I've written about the case, click here.

The Illinois Supreme Court decision holding that the Fourth Amendment forbade the sniff, as well as the parties’ briefs, are available here.


The amicus brief of the United States supporting petitioner is here.

Arguing Counsel:
For Illinois, state Attorney General Lisa Madigan
For the United States, Assistant Attorney General Christopher Wray
For Caballes, Ralph E. Meczyk of Chicago.


5:16 PM | Tom Goldstein  

Grokster Case

We're involved in the Grokster case in which the Ninth Circuit held for the file-sharing defendants. We've collected all the relevant briefs we can from the cert. stage (other than the petitioners' reply brief, which won't be filed for 10 days or so).

Here is the petition.

Here are the brief in opposition to cert. and an amicus brief opposing cert.

Here are the amicus briefs in support of cert. we've received so far (there may be more):
1. Nat'l Academy of Recording Arts and Sciences et al.
2. Misc. recording artists
3. Various states
4. Various organizations representing international holders of copyrights and other intellectual property rights
5. Misc. organizations led by the Office of the Commissioner of Baseball
6. The Progress & Freedom Foundation
7. Misc. academics
8. Misc. songwriters and composers
9. Washington Legal Foundation
10. SESAC, Inc.
11. Intellectual Property Law Association
12. Roxio Inc., et al.
3:22 PM | Lyle Denniston  

Assisted suicide case at the Court

The Justice Department on Tuesday afternoon asked the Supreme Court to uphold the attorney general's move to ban the use of drugs in assisted suicide cases in Oregon -- the only state to allow physicians to prescribe drugs that patients may use to end their lives. The case is Ashcroft v. Oregon.

The petition raises this question:
"Whether the Attorney General has permissibly construed the Controlled Substances Act, 21 U.S.C. 801 et seq., and its implementing regulations to prohibit the distributioin of federally controlled substances for the purpose of facilitating an individual's suicide, regardless of a state law purporting to authorize such distribution."

At issue in the case is Oregon's "Death with Dignity Act," approved by the voters of that state in November 1994. It allows doctors to prescribe medication for the use of individuals who are terminally ill to end their lives. This practice is limited to residents of Oregon who are competent, and who make a voluntary and informed decision to obtain the drugs for that purpose. The law seeks to immunize doctors who prescribe such drugs from civil or criminal liability or professional discipline.

Attorney General John Ashcroft on November 9, 2001, issued a "directive" -- reversing an earlier policy of his predecessor, Janet Reno -- declaring that doctor-assisted suicide serves no "legitimate medical purpose" under federal drug control law and that doctors who prescribe medications under the Oregon law would risk their registration to prescribe drugs for their patients. It directed the Drug Enforcement Administration to enforce the directive "regardless of whether state law authorizes or permits such conduct by practitioners."

The Ninth Circuit, in a ruling May 26, 2004. struck down the Directive, finding it "unlawful and unenforceable because it violates the plain language of the Controlled Substances Act, contravenes Congress' express legislative intent, and oversteps the bounds of the Attorney General's authority." The Circuit Court found that Congress gave no indication that "it intended to authorize the Attorney General to regulate the practice of physician assisted suicide." Without such a clear indication from Congress, that court declared, Ashcroft interfered with state authority to regulate medical care and thus "altered the usual constitutional balance between the states and the federal government."

The Supreme Court is not expected to act on the Ashcroft appeal filed Tuesday until January.

Barbara Coombs Lee, president of Compassion in Dying, in Portland, Ore., said in a statement: "The U.S. Supreme Court has already written that assisted dying is a matter for the individual states to decide. If the Court respects its own precedent, it will deny Ashcroft's appeal."



3:10 PM | Heather Lloyd  
News on yesterday’s orders:

Cert. was denied in No. 04-312, American Chiropractic Association v.
Trigon Healthcare:
The AP’s Hope Yen has this article on findlaw.com.

Cert. was denied in No. 03-1655, Lewis v. U.S.:
Findlaw.com has this AP article.

Cert. was denied in No. 03-1597, Locke v. Farrakhan and No. 04-175, Muntaqim v. Coombe:
Linda Greenhouse of The New York Times has this article;
Tony Mauro of Legal Times has this article; and
the AP’s Hope Yen has this article on findlaw.com.

Today’s News:

News on the Court’s opinion, issued today, in No. 03-583, Leocal v. Ashcroft:
William Branigin of The Washington Post has this article;
the AP’s Hope Yen has this article;
this Bloomberg article;
this UPI report in The Washington Times; and
this Reuters report in The New York Times.

The AP’s Hope Yen has this article on findlaw.com discussing yesterday’s oral arguments in Devenpeck v. Alford, No. 03-710.

Findlaw.com has this AP report by Alex Veiga on several amicus briefs filed in No. 04-480, MGM v. Grokster. [Disclosure: Goldstein & Howe, P.C. is involved in the case.]

Marcia Coyle of The National Law Journal has this article on last Monday’s oral arguments in No. 03-892, Commissioner of Internal Revenue v. Banks and No. 03-907, Commissioner of Internal Revenue v. Banaitis.

Jo-Anne Moriarty of The Republican has this article on yesterday’s oral arguments in No. 03-9168, Shepard v. United States.

Michelle Goldberg has this essay on Salon.com on the potential ideological shift the Court may experience if President Bush nominates a justice to the Court.
10:28 AM | Tom Goldstein  

John Roberts Post #3

In this post, I’ll lay out the two most important questions that have been raised in response to my post suggesting that the President is likely to appoint John Roberts Chief Justice of the United States, should Chief Justice Rehnquist retire.

First, does John Roberts present the “Souter problem”? Justice David Souter, of course, was appointed by the first President Bush to replace William Brennan, an appointment that presented the opportunity to move the Court considerably to the right. But Justice Souter has instead reliably voted with the Court’s more liberal members in cases presenting ideological questions. The conventional wisdom is that the error in the calculus underlying the appointment was that Souter had no substantial track record on important federal constitutional questions and the President accepted the (mistaken) judgment of John Sununu or Warren Rudman that Souter was reliably conservative.

A slightly different take is that Justice Souter was not solid in his conservative views and has moved to the left. This assessment tracks the sense that some Justices – e.g., Justice Blackmun – move to the left during their tenure on the Court.

So the “Souter problem” – broadly defined – is the prospect that the nominee will turn out not to hold reliably conservative views. (I’m putting to the side the very substantial question of what are “conservative views,” given the great diversity on important issues between, e.g., evangelical conservativism and libertarianism.) It actually presents a question of reality (is Judge Roberts solidly conservative across the range of important questions) and a separate question of perception (is enough known about Judge Roberts to give the people that matter sufficient confidence to appoint him).

Second, couldn’t conservatives in any event “do better” with the appointment of someone more avowedly doctrinaire, like Judge Michael Luttig of the Fourth Circuit, Judge Edith Jones of the Fifth Circuit, or Justice Janice Rogers Brown of the California Supreme Court? Relatedly, wouldn’t the President be more likely to nominate one of those individuals and, in the event they are successfully filibustered or (far less likely) rejected outright by the Senate, potentially nominate someone more acceptable to Democrats, as Roberts arguably would be?

That perspective is reinforced by the fact that the appointment would be to replace Chief Justice Rehnquist, not a more moderate conservative such as Sandra Day O’Connor. The best that conservatives can hope for with such an appointment would be to keep the Court ideologically static. A more liberal nominee would move the Court to the left.

The short and candid answer is that I’m not qualified to answer these questions with particular confidence. I can’t tell how genuinely conservative Judge Roberts is because he hasn’t been on the D.C. Circuit long enough to give a firm sense. (In later posts, I’ll be reviewing his most illuminating opinions.) And I don’t know him well personally. We have had a few brief conversations, and he took a uncharacteristic swipe at me in the press once, but we’ve never talked about issues that would give me anything like a genuine understanding of his views.

The very fact of his brief tenure on the court of appeals does give rise to the “question of perception” I flagged above: will the relevant decisionmakers fear that he isn’t sufficiently conservative, even if that isn’t accurate? Again, I don’t know for sure. As I indicated in my initial post, Judge Roberts is a well known figure in conservative Washington legal circles, including particularly through his service in the Administrations of President Reagan and first President Bush. The fact that he was nominated to the D.C. Circuit approximately a decade ago and again (very quickly) by the current President Bush suggests a high degree of confidence in not only Judge Roberts’ intellect and integrity, but also his ideology.

But a Supreme Court appointment is unquestionably a different kettle of fish. The bottom-line of the perceived “David Souter problem” is that movement conservatives want to leave no margin for error. They will be looking, I think, for a degree of confidence that can only really be inspired by open and avowed allegiance to strict conservative principles.

On the other hand, Democrats are all but certain to filibuster such a nominee. That conclusion seems inescapable for a nominee – such as Edith Jones, Emilio Garza, or Michael McConnell – who has openly expressed the view that Roe v. Wade was wrongly decided. (Michael Luttig has voted to uphold various restrictions on abortion, but I’m not aware of his having taken a public position on the basic question of the underlying constitutional right.)

If you accept all of the foregoing, the prospect that President Bush would nominate John Roberts to replace Chief Justice Rehnquist comes down (not surprisingly) to a question of politics. The White House has a judgment to make about whether it wants to inspire a successful filibuster of a nominee. Again, I’m not qualified to make that political judgment. The filibuster arguably would paint Democrats as obstructionist. Alternatively, it could embolden Democrats and create a sense that the President is weak.

The principal political advantage of John Roberts is that there doesn’t seem to be any basis upon which to mount a filibuster against him, assuming that’s a substantial goal of the Administration. It’s somewhat unfortunate and misleading that my posts so far have dealt principally with politics, rather than the qualifications of Judge Roberts or other potential nominees. But the politics are inescapable. And as I mentioned, I’ll soon turn to the substance of Judge Roberts’ qualifications in additional posts.
10:07 AM | Lyle Denniston  

Drunk driving not a crime of violence

The Supreme Court, in a unanimous opinion authored by Chief Justice William Rehnquist, ruled Tuesday that a conviction for drunk driving that results in serious bodily injury does not qualify as a "crime of violence" that can lead to deportation of a permanent resident involved in the incident. The case was Leocal v. Ashcroft (docket 03-583).

In a separate ruling, also by a unanimous vote, the Court ruled that a railroad that loses or damages cargo that has been transported earlier by sea is protected from damages assessments larger than $500 per package. The decision, written by Justice Sandra Day O'Connor, came in the case of Norfolk Southern Railway v. Kirby (02-1028). Cleverly, her opinion began: "This is a maritime case about a train wreck."

These were the first decisions of the new Term. The Leocal decision demonstrated that, although the chief justice is absent from the Court while being treated for thyroid cancer, he was continuing to take part in the decision-making part of his work. On each hearing day since the term began two weeks ago, Justice John Paul Stevens has announced that the chief would participate in the rulings even though not present for the hearings. The Leocal opinion was typical of the chief justice's opinion-writing habits: a spare, 11-page document.

In the decision, the Court was interpreting a provision of federal immigration law that provides for deportation of an alien who is convicted of an "aggravated felony," defined as a "crime of violence." That phrase, Rehnquist wrote, does not cover all negligent conduct, such as negligent operation of a vehicle. "It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense." The ordinary meaning of crime of violence, the opinion added, "suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses."

The opinion stressed that the Court was not deciding whether the reckless use of force against a person or properety is a crime of violence under immigration law.

The Norfolk Southern opinion by Justice O'Connor interpreted clauses that limit the liability of a land-based carrier that hauls goods that moved under transportation documents issued under the Carriage of Goods by Sea Act. A shipment of machinery from Australia to Huntsville, Ala., was badly damaged when a Norfolk Southern train, moving the cargo over its last land leg, derailed. The damages were estimated at $1.5 million.

The railroad contended that, because of the liability limitations, it was not obliged to pay the cargo owner more than $500 per package. The Supreme Court agreed, finding that Norfolk Southern qualified for the so-called "Himalaya Clause" limit and for a separate limitation in a contract with the ocean shipping carrier. Norfolk Southern was covered by those provisions, the Court found, because it was a "downstream" beneficiary of their limitations.
10:05 AM | Tom Goldstein  

Today's opinions

No. 02-1028, Norfolk Southern R. Co. v. Kirby Pty., unanimously reversed and remanded, per Justice O'Connor;

and

No. 03-583, Leocal v. Ashcroft, unanimously reversed and remanded, per the Chief Justice

Monday, November 08, 2004

9:21 PM | Lyle Denniston  

No appeal on Microsoft settlement

Two years after a federal judge upheld the deal to settle the massive government antitrust lawsuits against Microsoft Corp., the cases that began six years with a Justice Department case have come to an end. The last chance for an appeal to the Supreme Court disappeared in a deal just announced Monday between the software giant and its longtime and bitter rival in the industry, the Computer and Communications Industry Association.

As part of their agreement, CCIA dropped any plan to seek Supreme Court review of an en banc decision by the D.C. Circuit last June 30. The time for an appeal actually had expired on October 28, after Chief Justice William Rehnquist extended the filing time, but it was not clear until Monday that CCIA was backing off under a pact with Microsoft.

The government antitrust lawsuits, by the Justice Department and 20 states, at one time actually threatened the breakup of Microsoft into two different companies. But the deal reached at the start of November 2002 involved no structural change in Microsoft, and was limited to a series of "conduct" remedies that are now being monitored by the Justice Department, the states, and a technical advisory committee.

Microsoft senior vice president and general counsel Bradley Smith said in a statement: "Today's agreement, along with the decision by the Commonwealth of Massachusetts [against appeal], marks the end of a long legal process in the United States." Massachusetts, CCIA and another industry rival of Microsoft, the Software and Information Industry Association, had appealed the settlement of the antitrust cases to the D.C. Circuit; the other states dropped out along the way. Massachusetts dropped out soon after the Circuit Court ruling. While Microsoft had no deal with SIIA, the expiration of the time to file an appeal at the Supreme Court removed the option for that group to appeal, according to Microsoft spokesman Jim Desler.
9:11 PM | Amy Howe  

Tomorrow's Argument in Pasquantino v. United States

The Court will hear arguments tomorrow in No. 03-725, Pasquantino v. United States. At issue is whether the U.S. government can bring a prosecution under the wire fraud statute against defendants in the U.S., when the “fraud” allegedly at issue is a scheme to defraud a foreign government of tax revenue. The petitioners, who will be represented tomorrow by Laura Brill of LA’s Irell & Manella, contend that the prosecution is precluded by the common-law revenue rule, which precludes U.S. courts from enforcing foreign tax claims. Michael Dreeben of the Office of the Solicitor General will argue that the common-law revenue rule is not implicated here because the U.S. government is not seeking to enforce a foreign government’s tax claim, but is instead merely bringing a criminal prosecution under the wire fraud statute to vindicate U.S. interests.

The decision of the en banc Fourth Circuit affirming petitioners’ convictions is available here. The parties’ briefs are available here. You can also read my more detailed summary of the case here.
7:38 PM | Lyle Denniston  

War on Terrorism -- Back to the Court?

A federal judge’s ruling on Monday, threatening to scuttle President Bush’s plan to use military commissions to try Guantanamo detainees for war crimes, could bring the war on terrorism back to the Supreme Court sooner rather than later. (Conceivably, the detainee trial issue could reach the Court before the coming appeal in another terrorism case, involving Zacarias Moussaoui; see post below.)

U.S. District Judge James Robertson ruled Monday that Salim Ahmed Hamdan, a Yemeni national captured in Afghanistan nearly three years ago and held since then at Guantanamo Bay in Cuba, may not be tried by military commission at least as that presidentially mandated tribunal now exists. The judge also barred a commission trial of Hamdan until his claim that he is a prisoner of war is decided by a “competent tribunal.” The ruling was based both on the Third Geneva Convention and on U.S. military law. Robertson put off any ruling on constitutional challenges to the commissions.

In a swift and angry response to the ruling, the Justice Department said it would seek an “emergency stay” and will appeal immediately. A stay request would go first to Judge Robertson, and then to the D.C. Circuit, but it would be no surprise if the Supreme Court were drawn in soon afterward. Hamdan has a military officer, Lt. Cmdr. Charles Swift, as his defense lawyer, and Swift has been energetic in handling that assignment, not only in U.S. civilian courts but also before various military entities operating at Guantanamo.

President Bush has designated Hamdan and three other Guantanamo detainees for trial before military commissions. These commissions are different from two kinds of “status review tribunals” that the military is conducting at the Navy base in Cuba; those are designed to test whether detainees should continue to be held. The military commissions are set up for actual trials on war crimes charges.

The Bush administration’s lawyers have contended in court filings that the president has unchecked power to establish military tribunals using his authority as commander-in-chief. Judge Robertson did not reject that argument entirely, but did cast serious doubt on it, suggesting that the Supreme Court has never validated such a sweeping constitutional claim. It is mainly up to Congress, the judge ruled, to set up the entities that are to try individuals for violations of the laws of war. Congress, Robertson ruled, has not authorized the commissions at Guantanamo.

The judge, in his ruling on the Third Geneva Convention, rejected the government argument that this treaty governing the treatment of prisoners of war does not apply to those captured in Afghanistan as part of the war on terrorism. If Hamdan is entitled to the protections of that Convention, Robertson said, he can be tried only by a court that is equivalent to the kind of court that would try members of the U.S. military – that is, a court-martial. “The military commission is not such a court,” the judge ruled.

Hamdan’s claim to POW status, according to the decision, must be made by a “competent tribunal.” President Bush, in deciding that Al Qaeda captives, including Hamdan, are not POWs is not binding, the judge said, because the president “is not a ‘tribunal.’” Until a competent tribunal decides that Hamdan is not a POW, he must be treated as such, and thus cannot be tried by a military commission in the meantime.

The judge went on to rule that, even if Hamdan is to be put on trial, it cannot be before a military commission as that body is presently constituted under the president’s orders. It is not the equivalent of a military court-martial, Robertson found, because those accused before such a commission can be excluded from the proceedings when classified material is being discussed. “Testimony may be received from a confidential informant, and Hamdan will not be permitted to hear the testimony, see the witness’s face, or learn his name,” the court noted. “It is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court,” Robertson commented. Hamdan has already been excluded from parts of the preliminary commission proceedings against him, the judge said.

“So long as it operates under such a rule,” Robertson declared, the military commission cannot try Hamdan.”

Justice Department spokesman Mark Corallo, announcing an immediate appeal, accused Robertson of putting “terrorism on the same legal footing as legitimate methods of waging war. The Constitution entrusts to the president the responsibility to safeguard the nation’s security.”








6:20 PM | Lyle Denniston  

Moussaoui's planned appeal to the Court

Defense lawyers for Zacarias Moussaoui, the only person charged with a crime for the September 11, 2001, terrorist attacks, plan an appeal to the Supreme Court in a matter of weeks that will raise at least four major constitutional questions. In the meantime, they have asked a U.S. District Court judge to delay all preparations for a trial on the 9/11 conspiracy charges until after the Supreme Court acts on the appeal.

In a filing Monday in U.S. District Court in Alexandria, Va., Moussaoui’s federal public defender lawyers opposed the Justice Department’s request to set a trial date for April 25. His attorneys argued that “the appellate process has not yet concluded and setting a trial date would be premature.” (The case in District Court is U.S. v. Moussaoui, docket 01-455.)

The petition for Supreme Court review, to be filed by no later than January 11, according to the defense team, will present “substantial questions.” Without specifically defining all the issues that will be raised, the District Court filing indicated that these will be among the questions presented:

Has Moussaoui’s Sixth Amendment right to obtain witnesses to testify in his favor been denied? That is a reference to the three high-level Al Qaeda operatives that the U.S. has captured and is holding overseas in undisclosed locations. The Fourth Circuit has ruled that they could give favorable testimony that might help Moussaoui prove that he was not directly involved in the Sept. 11 attacks. The Fourth Circuit, however, has strictly limited his lawyers’ access to those three. This issue will turn on the Supreme Court’s ruling earlier this year in Crawford v. Washington.

Is it appropriate, under the due process clause of the Fifth Amendment, for the government to seek the death penalty when the government will not produce “all favorable evidence before trial,” and the jury that would sentence Moussoui if convicted “is precluded from considering all of the circumstances of the offense”? This is a reference to the unusual procedure mandated by the Fourth Circuit for editing, for use at trial, statements that the Al Qaeda operatives have made to government interrogators about 9/11.

Is it a violation of the Sixth Amendment right to trial by jury to raise Moussaoui’s potential sentence to death if the jury had not found beyond a reasonable doubt all facts needed to justify that enhancement? This issue is based on the Supreme Court's ruling earlier this year in Blakely v. Washington.

Do the limits imposed on defense access to the Al Qaeda witnesses violate the Eighth Amendment, as well as the Fifth and Sixth Amendments, because defense lawyers have no assurance that questions they will be allowed to submit in writing will be answered?

If the Supreme Court were to agree to rule on any of those issues, and ultimately rule in Moussaoui’s favor, defense lawyers told the Alexandria court, “significant government and judicial resources…will have been wasted if the parties have simultaneously proceeded towards trial.”

Moussaoui’s lawyers also argued that both sides need to await the outcome of a Supreme Court case that was argued last Tuesday – Florida v. Nixon. The defense team noted that the Justice Department has asked the trial judge in Moussaoui’s case to rule in advance of trial that defense lawyers have the authority to enter into stipulations about evidence in the case, even if Moussaoui objects. The Nixon case, according to defense lawyers, tests whether a lawyer was ineffective in a constitutional sense for conceding facts necessary to a decision on guilt without the client’s consent. They said they expect Moussaoui to actively oppose any stipulations. Thus, they argued, any action on the stipulation issue should wait until the Court decides Nixon “since it may provide important guidance.”

It is unclear when the trial judge, District Judge Leonie M. Brinkema, will rule on the trial date issue or Moussaoui's request for a delay of all proceedings.
5:17 PM | Tom Goldstein  

Upcoming Supreme Court Book

We just received word that Jeff Toobin of the New Yorker and CNN has a contract to write a book on the Court. If past is prologue, Jeff's books and articles suggest that this book will
have plenty of behind-the-scenes details about the Court and the confirmation process.
3:19 PM | Heather Lloyd  
Ted Hearn of Multichannel News has this story regarding the history to the Court’s cable must carry decision from Justice Blackmun’s papers.
2:56 PM | Tom Goldstein  

John Roberts Post #2

This post follows up on my earlier post giving my best guess that the President will appoint Judge John Roberts of the D.C. Circuit in the event Chief Justice Rehnquist retires.

I previously neglected to include a couple of thoughts. First, it is far from certain that the President would appoint Judge Roberts (or anyone else) directly to the position of Chief Justice. There is of course political opportunity in elevating a current Associate Justice and then nominating someone to fill that slot.

I nonetheless think it is likely that the new nomination would be directly to the Chief’s position. The President could signal his appreciation to conservatives by elevating either Justice Scalia or Justice Thomas. (The Drudge Report, for example, today quotes an administration official as saying that Justice Thomas is under consideration.) I’m sure both are being “considered,” I just doubt that the consideration is serious. The President has no incentive to put forward a nomination that will successfully mobilize Democrats, as those nominations would. Personally, I doubt that Justice Thomas would want to go through the experience in any event. His career as an Associate Justice has been a success – a view that is anathema to many liberals, I know – and there isn’t much reason to mess with a good thing.

Alternatively, the President could make an important demographic statement by elevating Justice O’Connor as the first female Chief Justice. That seems unlikely, however, because it would encourage her to stay on the Court beyond the President’s second term in office. Chief Justices tend to have long tenures in that position: e.g., Rehnquist (18 years and counting); Burger (18 years); Warren (17 years). Because Justice O’Connor is actuarially and politically the Justice most likely to leave voluntarily during the next four years, the President would seemingly not be interested in reducing his chances to name her more conservative successor.

I don’t think there is any constituency in favor of the final elevation option: Justice Kennedy.

So, effectively by process of elimination, I think the President is likely to make any appointment directly to the position of Chief Justice of the United States.

The second point I neglected to make in my previous post is pretty incidental. An advantage of naming Judge Roberts is that it would open up another seat on the D.C. Circuit, an important and high-profile court in which to place appellate nominees.

I’ll post readers’ reactions and questions relating to my first post soon.
11:00 AM | Heather Lloyd  

Today's News

The Washington Post has this Supreme Court Calendar on today’s oral arguments.

Joanne Mariner has this essay on findlaw.com entitled “The Scalia Court.”

Tony Mauro of Legal Times (subscription required)
has this article on possible judicial confirmation clashes President Bush could face during his second term.

Weekend News

Edward Lazarus had this article in The Washington Post’s Sunday Outlook discussing a possible shift in the ideology of the Court.

Linda Greenhouse of The New York Times had this article concerning the way the Court conducts its business with an absent Chief Justice.

Battinto Batts of Knight Ridder had this article in The Chicago Tribune on similarities between Norfolk, Virginia and New London, Connecticut. New London is the respondent in Kelo v. New London, No. 04-108, which will be argued at the Supreme Court later this term.
10:07 AM | Marty Lederman  

Today's Orders List -- No Grants

Here is today's Orders List. The Court did not grant certiorari in any cases. (No action yet on No. 04-38, U.S. v. Miller.)
10:04 AM | Lyle Denniston  

No new cases granted

The Supreme Court denied review of all new cases before it on Monday, so there were no additions to the decision docket. The most significant cases among those denied review were two appeals testing the legality, under federal voting rights law, of state laws that take away the right to vote of those convicted of serious crimes and sent to prison.

The Court gave no explanation for refusing to hear the cases of Locke v. Farrakhan (03-1597) and Muntaqim v. Coombe (04-175). The Muntaqim case, from the Second Circuit, may now be granted rehearing en banc by that Court. The Second Circuit denied en banc review on October 1, by a 9-4 vote, but four of the judges in the majority said they would reconsider if the Supreme Court denied review of the issue.

The Supreme Court's refusal to hear either case was a bit of a surprise, since there is a very clear conflict among the Circuits on the legal question. The Ninth Circuit ruled in the Locke case that it violates the federal Voting Rights Act to deny convicted felons the right to vote, as long as the criminal justice system leading to their imprisonment is racially biased against minorities. The Second Circuit ruled in the Muntaqim case that the Voting Rights Act does not even apply to states' felon disenfranchisement laws.

A growing number of lawsuits, by felons or their supporters, raise the issue. A liberal advocacy group, Human Rights Watch, estimates that more than a third of all disenfranchised felons are black. If current trends continue, that group argues, the rate of disenfranchisement for black men could reach 40 percent in the states with such laws.

Among the cases that the Justices considered at their private conference last Friday, but did not act upon Monday, was Miller v. U.S., a test of the president's constitutional authority to make interim appointments of judges to the federal courts during brief Senate recesses. It is unclear why the Court has taken no action on that case after considering it twice.

Once again on Monday, Justice John Paul Stevens announced at the opening of the day's session that Chief Justice William H. Rehnquist would be absent, but will participate in decisions in the cases to be argued. The Chief Justice is being treated for a serious form of thyroid cancer, and has not been at the Court for the past two weeks.
10:01 AM | Marty Lederman  

Tomorrow is the First Opinion Day of the Term

Tomorrow the Court will issue one or more opinions from the eleven arguments in the October sitting. Who will the author(s) be? It's often Justice O'Connor or Justice Ginsburg -- but not always.

Sunday, November 07, 2004

10:17 PM | Steven Wu  

Tomorrow's argument in Devenpeck v. Alford

On Monday, November 8, the Supreme Court will hear arguments in the case of Devenpeck v. Alford, 03-710. During a traffic stop in the State of Washington, Alford was arrested and told that the basis of his arrest was that he was making an illegal tape recording of the traffic stop. However, Washington state law does not forbid citizens from taping police officers during the performance of their public duties. As a result, a state court judge dismissed the illegal recording charge against Alford. Later, Alford filed a Section 1983 claim against the officers who had arrested him, alleging unlawful arrest and imprisonment. The officers defended on two grounds: First, although there was admittedly no probable cause to arrest Alford for illegal taping, the officers argued that there was probable cause to arrest Alford for other offenses - namely, impersonating a police officer and obstructing a law enforcement officer - that were not articulated by the officers at the time of arrest. Second, the officers argued that, in any event, they enjoyed qualified immunity.

The questions presented track these two defenses. Those questions are:
  1. Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not "closely related" to the offense articulated by the officer at the time of the arrest?

  2. For the purpose of qualified immunity, was the law clearly established when there was a split in the circuits regarding the application of the "closely related offense doctrine," the Ninth Circuit had no controlling authority applying the doctrine, and Washington state law did not apply the doctrine?
The Ninth Circuit's opinion (Alford v. Haner) rejecting the officers' defenses can be found here. The briefs for the parties can be found here. Michael P. Lynch of the Washington Attorney General's Office will argue for petitioners; Randolph Stuart Phillips of Poulsbo, WA, will argue for respondent Alford.

I have also prepared a more detailed summary of the case, which is available here.
8:16 PM | Amy Howe  

Arguments in Shepard v. United States

Note: The following post was written by Allon Kedem, a third-year student at Yale Law School.

On Monday, November 8, the Court will hear arguments in Shepard v. United States, No. 03-9168, which concerns the application of the Armed Career Criminal Act to defendants with prior convictions under non-generic burglary statutes. The Act imposes a mandatory minimum sentence for a defendant who has three prior violent felony or serious drug convictions and is subsequently convicted of being a felon in possession. In Taylor v. United States, the Court held that, to determine whether the Act applies to a defendant with prior burglary convictions, a sentencing judge should look only to the fact of conviction and the statutory definition of the prior offense to ascertain whether “generic burglary” – that is, “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime” – was at issue. The question in Shepard is whether this “categorical approach” is appropriate when a defendant pleads guilty to a non-generic charge of burglary brought under a non-generic statute, there is no contemporaneous record of the guilty plea proceedings, and the judgment of conviction reflects a general finding of guilty – or whether the sentencing court may conduct an evidentiary inquiry into the facts underlying the conviction to determine if the Government and the defendant believed that generic burglary was at issue.

I have a more thorough discussion of the case available here. The party briefs can be found here. Arguing on behalf of Petitioner Reginald Shepard is Linda J. Thompson. Arguing on behalf of the United States is Assistant to the Solicitor General John P. Elwood. The First Circuit’s decision can be found here.
11:30 AM | Tom Goldstein  

Supreme Court Nomination

Here is my current thinking regarding who the President would nominate to replace Chief Justice Rehnquist, should he retire.

It is essential to Republicans that the President nominate someone who is very solidly conservative. To pick someone more moderate or liberal would move the Court to the left.

In this context, “conservative” (like “non-activist” or “strict constructionist”) is often mistakenly perceived a code word for – or reduced by the press the simplistic formulation of – “willing to overrule Roe v. Wade.” Abortion is certainly the most prominent Court-related question in the public’s mind, and it no doubt is the most important question for the vocal religious conservative base that was so important to the President’s re-election. (That constituency is also very concerned with gay rights, but that issue is unlikely to be on the table in a significant way: Lawrence v. Texas established a moderate anti-discrimination principle from which the Court is very unlikely to retreat and there is nothing approaching a Court majority to recognize a federal constitutional right to gay marriage.)

But the Rehnquist Court’s conservative jurisprudence is equally concerned with lowering the wall separating church and state and recognizing limits on the scope of the federal government’s power vis-à-vis the states. It also embodies a greater sympathy to business interests, and a sense that the federal civil rights laws have been more broadly construed than Congress intended. Another major theme is a pro-government approach to criminal law and habeas corpus. The President will put forward a nominee that is reliably conservative on the breadth of those and other issues.

The principal role of the abortion question will instead be its capacity to mobilize opposition to a nominee. As important as abortion is to social/religious conservatives, it is equally galvanizing to liberal groups and women’s-rights organizations, and it is the single issue that is best capable of unifying Democratic Senators to block a nominee. That means, I think, that Michael McConnell, Emilio Garza, and Edith Jones – all of whom have candidly stated their opposition to Roe – are quite unlikely candidates. Conversely, because social conservative groups have laid down an absolute marker against him based on concerns that he might vote to reaffirm Roe, I don’t think that the President will nominate Alberto Gonzales. (Gonzales has the further problem that Democrats would demand to see memos from the White House counsel’s office relating to the recent detention controversies.)

Moving to nominees without real track records on abortion, I think the White House would be very pleased to pick a nominee that increases the Court’s diversity. The President has nominated two most prominent candidates – California Supreme Court Justice Janice Rogers Brown and Washington attorney Miguel Estrada – to the D.C. Circuit, but Democrats have filibustered both, in no small part to make it more difficult to elevate them to the Supreme Court. Because it’s obvious that Democrats would continue to filibuster both, I think the President is unlikely to make such a nomination.

Estrada also is exceedingly unlikely because he is quite young (43) and (as a consequence of the filibuster) lacks any judicial experience. If the administration wants to invest further capital, they will instead nominate him as the Solicitor General, which would set up a later nomination to the Supreme Court in the event of a more conservative Senate.

Another factor – age – is likely to disqualify the candidate who is probably best suited to assume directly the role of Chief Justice: J. Harvie Wilkinson of the Fourth Circuit. He is the former Chief Judge of the Fourth Circuit and widely respected by conservative and liberal judges alike. But at 60 years old, he is unlikely to be nominated by a President who is committed to reshaping the federal judiciary for decades.

For many of the reasons just described, I think the President will be looking for a solidly conservative nominee, who is relatively young, and in whom religious conservatives can have confidence with respect to abortion without simultaneously giving Senate Democrats a simple and clear enough basis enough to must a filibuster that the public will accept. Michael Luttig – a hero to conservatives – is one candidate, but he has a relatively long judicial track record that could be used to mount a substantial opposition.

More likely, I think, is Judge John Roberts of the D.C. Circuit, who was only confirmed to that court last year. The model for confirmation here is likely to be that of David Souter and Clarence Thomas, both of whom were nominated to the Supreme Court after brief tenures on federal appeals courts.

Judge Roberts is 49 years old. Previously, he was the nation’s leading Supreme Court advocate as an attorney at Hogan & Hartson in Washington, D.C. (Although he was known as a conservative, he never took on the partisan profile of Ted Olson.) He also has held several government positions: principal deputy solicitor general, associate counsel to President Reagan, and special assistant to Attorney General William French Smith. (Judge Roberts was nominated for the same position in 1992, but the nomination lapsed.) After law school, he served as a clerk to Chief Justice Rehnquist, a fact that would give the appointment a certain symmetry.

Given his prior government positions and high profile as a Supreme Court advocate, John Roberts is a very well known commodity to the Washington conservative legal establishment that will be so important to advising the President on his nomination. He also notably can be said to have argued for the overruling of Roe v. Wade, a fact that would cause religious conservatives to embrace him: he signed the United States’s brief in Rust v. Sullivan, which included a pointed (if gratuitous) statement that the Administration believed that “Roe was wrongly decided and should be overruled.” But he took that position as a government lawyer while in the Solicitor General’s office, where he was advocating the position of the Administration, a fact that makes it substantially more difficult to block him on that ground. I am not aware of any public statements by Judge Roberts regarding his personal view on whether Roe should be overruled.

Conservatives also would appreciate that Judge Roberts was on the brief for the United States in Lee v. Weisman, a high profile case in which the government advocated narrowing the wall separating church and state.

If Judge Roberts’ confirmation to the D.C. Circuit is informative, it would be difficult to muster a solid opposition to his nomination. The Senate Judiciary Committee approved his nomination 16-3. The full Senate approved it without a roll call vote.

In later posts, I’ll take a look deeper into Judge Roberts’s decisions as a D.C. Circuit judge and other aspects of his record. In the meantime, please feel free to e-mail me your reactions (tgoldstein @ goldsteinhowe.com), letting me know whether it's o.k. to post your thoughts with attribution.
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