On Friday the Solicitor General’s office filed this invitation brief in No. 07-539, Progress Energy v. Taylor. At issue in the case (in which Akin Gump represents the petitioner) is whether 29 C.F.R. 825.220(d), a Department of Labor regulation providing that employees cannot waive (nor may employers induce them to waive) rights under the Family and Medical Leave Act, prohibits the private settlement of FMLA claims based on past employer actions.

In its brief, the United States acknowledges that the Fourth Circuit’s decision in the case rested on an erroneous interpretation of Section 825.220(d) and that the decision conflicts with a decision of the Fifth Circuit. Moreover, the United States notes, the Fourth Circuit’s interpretation may have a variety of adverse effects, such as “prevent[ing] employers from settling claims with finality and employees from obtaining payments through such settlements without the inevitable delay of seeking court or DOL approval.” The United States nonetheless contends that certiorari is not warranted because the Department of Labor is currently considering a revision to Section 825.220(d) that would “eliminate any ambiguity in § 825.220(d), resolve the question presented in this case, and effectively abrogate the Fourth Circuit’s decision - at least on a going forward basis.”

For those of you keeping score at home, this is the third case this spring in which the SG’s office has recommended a denial, joining Nos. 07-81, Exxon Mobil v. Doe (see here or blog post here; also filed on Friday), and 06-1398, AT&T Pension Benefit Plan v. Call (see here; filed on May 8).

Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

Based on the facts of the case, Michael William’s conviction would not seem problematic - he was caught offering to exchange photographs of adult men sexually molesting his 4-year-old daughter in exchange for other pictures of child pornography and, to substantiate his bona fides, posted on an internet chat site several pictures of children, aged 5 to 15, engaged in sexually explicit conduct. Although the Supreme Court today affirmed his conviction, the fact that his case ended up in the Court illustrates the special and complex nature of the Court’s First Amendment jurisprudence.

I. Background

Today’s decision considered a facial First Amendment challenge to the so-called “PROTECT Act” which is Congress’s latest attempt to attack the proliferation of child pornography on the internet. The statute subjects to criminal punishment any person who “knowingly … advertises, promotes, distributes, or solicits … any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains - (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct.” 18 U.S.C. § 2252(a)(3)(B).

This might seem an exceedingly complicated and convoluted way to get a child pornography on the internet, but the complication arises in large part from the need to navigate the Supreme Court’s First Amendment jurisprudence. On the one hand, the Court has broadly construed the First Amendment’s protections to include not simply speech or written words, but also graphic depictions such as photographs and films (say, the depiction of the teenage lovers in Romeo and Juliet). On the other hand, the Court has carved out of that protection entirely graphic depictions of one special kind of human conduct - sex - which, as Justice Scalia explains today, legislatures may ban with impunity so long as the depiction is “obscene,” meaning “sexually explicit material that violates fundamental notions of decency.” At the same time, however, the Court has held that depictions that do not arise to the level of obscenity “has social value” and therefore First Amendment protection.

Read the rest of this entry »

Analysis

One obvious motivation, and one somewhat more subtle, drove the Supreme Court on Monday to salvage the most common form of state taxing of money that investors make when they buy state or local government bonds — “municipal bonds,” in market parlance.  The Court in Kentucky Department of Revenue (06-666) upheld the differing treatment that 41 states give to bonds’ interest — exempting the return on their own issues, while imposing a tax on the income on those sold by other states.  The Court, most obviously, was determined to avoid the bold stroke of throwing out what it called “the system of financing municipal improvements throughout most of the United States.”  Not so clear, but quite apparent, is that the Court is turning out to be more generous than perhaps had been thought about finding valid public purposes behind some discriminatory economic actions of state and local governments.

Those two observations emerge out of the Court’s new examination of state economic action under the so-called “dormant Commerce Clause” — an examination that, on Monday, led the Justices to issue seven opinions from widely varying perspectives. The “dormant” Clause is the one, invented by the Court, that limits state authority to add burdens to interstate economic activity by discriminating in favor of in-state business. In the face of the fervent opposition of two Justices, the remainder of the Court is not about to abandon that version of the Commerce Clause.

But version is clearly undergoing change. The majority opinion of Justice David H. Souter, in one of its more provocative sections (supported by only five of the nine members), hinted at a change that may come in the future, but did not emerge full-blown Monday. The Court, it seems, is moving away from one aspect of dormant Commerce Clause analysis — the use of the so-called “Pike balancing test” that limits states’ authority when they do not discriminate economically, but take action that still burdens interstate commerce without really producing much local benefit (the test derived from the 1970 decision in Pike v. Bruce Church). The test was put forth as one of the challenges to Kentucky’s different way of dealing with municipal bond interest. But Souter’s opinion refused to apply that test, and the rationale for the refusal was contained in a strongly worded essay on the hazards of having the judiciary make the “very subtle exercise” of weighing costs against benefits in a complex economic setting. (Justice Antonin Scalia wants to abandon the Pike test altogether, but there does not appear to be a majority for that sharp break – at least not yet.)

In the course of his essay on that point, Souter also reinforced the impression that the Court validated the differential system of taxing municipal bond interest out of a genuine concern about disrupting virtually the entire system of raising money in the market to pay for public works. The challengers to Kentucky approach, the opinion said, did not simply ask the Court to “tinker with details of a tax scheme,” but rather to expose the states to the uncertainties of experimentation with their traditional method of financing civic improvements. Souter called that “adventurism,” threatening to undercut “the experience of nearly a century.”

In fact, Souter’s opinion as a whole clearly was motivated by the twin facts that this differential taxing mode has prevailed for so long, and that all 49 other states joined in supporting Kentucky’s right (and their right) to treat their own bonds more favorably tax-wise than their sister states’. So much of Souter’s writing, on all points in dispute, grew out of the unappealing prospect – as he saw it – of compelling the states to start over in “funding the work of government.”

The other motivation was the “public purpose” rationale that Souter deployed. This rationale actually began to emerge most clearly on April 30 of last year, in Chief Justice John G. Roberts Jr.’s main opinion for the Court in United Haulers v. Oneida-Herkimer Solid Waste Management Authority. Under that approach, a state (or local) government’s action that would otherwise violate the dormant Commerce Clause is constitutional if it advances a government, as opposed to a private, economic interest.

On Monday, Souter wrote: “In United Haulers, we explained that a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors.” Souter went on to judge the Kentucky bond scheme under that precedent, finding that raising money for civic works of government “is a quintessentially public function.” It would be, the opinion added, an “unprecedented interference” to use the dormant Commerce Clause to nullify that kind of function.

It is thus apparent that, as future dormant Commerce Clause cases arise, the concept of “government function” may expand, rather than contract, further enlarging state and local government powers to take economic measures that they deem advisable for the public good as they see it. The Kentucky ruling seems sure to embolden them to craft programs so that they fit the rationale.

On a more immediate level, the opinion does raise a significant question about whether the “public purpose” rationale will be extended beyond municipal bonds so as to allow states to have different tax treatment for ”industrial revenue” bonds or similar issues designed to finance private projects, rather than public works, as such.  A footnote in Souter’s opinion said the Court was not deciding that issue, since the issue had not been addressed in lower courts.  But, tellingly, perhaps, the footnote at least implied that disrupting such a differential tax system could interfere with “important projects that the states have deemed to have public purposes.”

Today’s opinion by Justice Alito in United States v. Rodriquez (06-1646) is now available here. Justice Souter filed a dissenting opinion, in which Justices Stevens and Ginsburg joined.

Today’s opinion by Justice Souter in Dept. of Revenue of Kentucky v. Davis (06-666) is now available here. Justice Stevens filed a concurring opinion. The Chief Justice and Justice Scalia filed opinions concurring in part. Justice Thomas filed an opinion concurring in the judgment. Justices Kennedy and Alito each filed dissents.

Today’s opinion by Justice Scalia in United States v. Williams (06-694) is now available here. Justice Stevens filed a concurring opinion in which Justice Breyer joined. Justice Souter filed a dissenting opinion in which Justice Ginsburg joined.

Today’s opinion by Justice Stevens in United States v. Ressam (07-455) is now available here. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Scalia joined. Justice Breyer filed a dissenting opinion.

The Supreme Court ruled Monday that a state has the constitutional authority to impose a tax on the interest on municipal bonds sold by other states, while not taxing in-state bonds. The state, Justice David H. Souter wrote in a widely splintered decision, is entitled to treat its own bonds more favorably because, in issuing them, it is acting in a public manner to finance its own civic responsibilities.  This is not a simple form of economic protectionism, Souter said. The final vote was 7-2 in Kentucky Department of Revenue v. Davis (06-666), although the ruling produced seven opinions.

In a second major ruling, the Court — after years of repeatedly nullifying Congress’ efforts to stamp out child pornography on the Internet — finally upheld such a law, a 2003 statute that Congress shaped in a way that it hopes would spare it from the same fate as earlier attempts. In an opinion by Justice Antonin Scalia, the Court found that the 2003 law did not reach too far and that it was not vague in its scope.  The decision came on a 7-2 vote in United States v. Williams (06-694).

The Court, ruling in the prominent terrorism case of the “Millenium Bomber,” decided that an individual who was carrying explosives during commission of another crime is eligible to be sentenced to a mandatory 10-year sentence on top of any other sentence, even if the explosives were not to be used in the crime actually committed.  Justice John Paul Stevens’ opinion for the Court interpreted a law that adds the extra sentence for “carrying an explosive during the commission” of a felony. It was sufficient to violate that law, Stevens wrote, that explosives were found in a car the accused was driving when he committed the crime of making a false statement to a customs official. It was not necessary, the opinion said, that the explosives be directly linked to the specific felony committed.  The case involved Ahmed Ressam, an Algerian  national identified by the government as an Al-Qaeda operative, who was foiled in an attempt to detonate explosives in the Los Angeles International Airport on the eve of the millenium in 2000 — Dec. 31, 1999.  The vote was 8-1 in the case of U.S. v. Ressam (07-455).

The Court also decided a second federal sentencing case, concluding that an individual who possessed a gun illegally after three prior convictions for serious crimes carrying a penalty of ten years or more in prison is eligible for a minimum 15-year sentence under the Armed Career Criminal Act, even if one of the prior crimes was punished with a ten-year sentence only because he was found to be a repeat offender. The vote was 6-3 in U.S. v. Rodriguez (06-1646).

In a series of orders in pending cases, the Court granted no new cases for review at its next Term.

In a summary order, the Court cleared the way for Virginia to set a new date for executing Christopher Scott Emmett by lethal injection, but three dissenting Justices noted that Emmett’s lawyers could ask the Fourth Circuit Court for a stay. The Circuit Court now has under advisement a challenge to Virginia’s method of execution. Virginia had asked the Supreme Court to lift the stay it had issued on Oct. 17, while the Justices were preparting to consider the legality of the use of lethal drugs for execution in Kentucky. The Court, by an apparent vote of 6-3, lifted the stay in application 07A304, Emmett v. Johnson. Justice Stevens dissented, joined by Justices Souter and Ruth Bader Ginsburg.

In another execution case, the Court denied review of an appeal by a Florida death-row inmate, Mark Dean Schwab seeking to challenge that state’s lethal drug protocol. With the denial of review, the Court’s action automatically lifted a stay of execution the Justices had issued on Nov. 15, thus setting the stage for the state to seek a new execution date.

The Court declined to hear a Texas school superintendent’s appeal seeking clarification of the constitutional test to be applied when a parents’ rights have been violated by government action. The superintendent denied a promotion for a teacher to an administrative post - as an assistant principal - because she sent her children to a private religious school. The lower courts are widely split on the level of scrutiny courts should apply in judging violations of parental rights. The denied case was Smith v. Barrow (07-1089).

In another order, the Justices declined to hear an appeal by Walter E. Forbes, former board chairman of Cendant Corp., challenging his conviction for criminal conspiracy and making false statements to the Securities and Exchange Commission. He was sentenced to 12 years and seven months in prison and ordered to pay restitution of $3.275 billion for his crimes, an alleged “massive accounting fraud,” according to prosecutors. His appeal was Forbes v. U.S. (07-1029)

A copy of today’s orders list is now available here.

At 10 a.m., the Court is expected to issue one or more opinions, along with orders from the Justices’ private conference last Thursday. We will provide coverage of both as soon as they are available.

On Monday, the Court is expected to issue one or more opinions, along with orders from the Justices’ private conference last Thursday.

On Thursday, the Justices are scheduled to hold a private conference, orders from which are expected to be released the Tuesday after Memorial Day. To view our list of petitions to watch at Thursday’s conference,  click here.

The petitioner’s merits brief is due Friday in Waddington v. Sarausad (07-772). No respondents’ merits briefs are due this week.

(Link above directs to case page on SCOTUSwiki.)

The U.S. Solicitor General on Friday urged the Supreme Court not to get involved, at this stage, in a lawsuit in U.S. courts by villagers in Indonesia claiming they were abused by guards at a natural gas plant operated there by Exxon Mobil Corp. and affiliates.  Sol. Gen. Paul D. Clement said lower court rulings had significantly narrowed the lawsuit, and it does not present, as of now, any real threats to U.S. foreign policy interests and no claims against the Indonesian government.   The case is Exxon Mobil, et al., v. Doe, et al. (07-81). The U.S. government’s views were sought by the Court on Nov. 13. The case has not yet been scheduled for consideration by the Court.

The government’s amicus brief can be downloaded here.  An earlier post on this blog describing a denial in January by Chief Justice John G. Roberts, Jr., of a request to stop further evidence-gathering in the case in District Court can be read here.

The appeal in the case does not directly challenge the lawsuit, although the end of the case is the ultimate objective. Rather, the appeal seeks to test whether Exxon Mobil had a right to file an immediate appeal to the D.C. Circuit when a federal District judge refused to dismiss the case entirely.  The Circuit Court found that Exxon Mobil had not made a case for a right to appeal at this stage.

In the government’s view, the Circuit Court went a bit too far in limiting the kinds of cases in which an immediate appeal can be pursued when there are concerns about separation of powers — that is, concerns that allowing a case to go to trial in the courts may intrude upon Executive Branch powers.  It appeared, Clement wrote, that the Circuit Court had said such swift appeals are allowed only if there is a claim of immunity to suit altogether.  There may be cases, Clement added, when no specific immunity to suit is claimed, but the case still may risk an intrusion into Executive prerogative.  That is not true of this case at present, he said.

The State Department at one point had voiced concerns, in the Indonesia case, that the case had the potential for embarrassing the government of Indonesia and of intruding on U.S. foreign policy concerns. The Department never asked, however, that the entire case be dismissed without a trial. The Department’s concerns, Clement wrote, have been largely answered by dismissal of the claims made under federal laws and dismissal of any claims against a company owned by the Indonesian government.  What remains of the case, the Solicitor General said, are only state common law tort claims by private individuals against private corporations.  While such claims may be preempted by federal law, the brief added, that is not an issue in the case as it stands before the Supreme Court.

Clement’s brief was somewhat critical of the Exxon Mobil petition, suggesting that it had overstated what remained of the case.  Some of the arguments made, the brief said, no longer apply given what the District Court has done to narrow the case, and what the Circuit Court suggested remains as a possible remedy — mandamus –if the case’s continuation raises new foreign policy concerns that arouse the State Department anew.

Update 7:15 a.m. Saturday

On Friday afternoon, the military judge heading the commission scheduled to try Salim Ahmed Hamdan postponed the date for starting that trial until July 21.  This almost certainly will mean that, by then, the Supreme Court will have clarified the legal rights of Guantanamo detainees.  Carol Rosenberg of the Miami Herald discusses the postponement and other new developments in the case in this story, published Saturday morning.  Links to the judge’s order and to a separate order regarding a mental examination can be found at this Pentagon site. 

Rosenberg’s story also reports that five Guantanamo detainees charged with roles in the terrorist attacks of 9/11 have sought dismissal of their military commission cases, arguing that Pentagon “command influence” tainted their cases.  Beside Rosenberg’s story is a link to this motion to dismiss; it is a large document.

 Below is a post on earlier developments in Washington.

————–

The D.C. Circuit Court refused on Thursday to block the scheduled beginning of the war crimes trial of Salim Ahmed Hamdan at Guantanamo Bay on June 2, but allowed his lawyers to renew the plea after the Supreme Court rules this month or next on the legal rights of detainees.

Lawyers for the Yemeni national had asked the Circuit Court to block his trial before a military commission until after the Supreme Court rules in the pending cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), arguing that the Justices’ ruling will affect directly his claim that it would be unconstitutional for a commission to try him. 

In a brief order (found here), a three-judge panel of the Circuit Court said that Hamdan’s counsel had not met the requirements under the All Writs Act for “a stay pending Boumediene.”  The order specified, though, that the motion was being denied “without prejudice to renewal upon the Supreme Court’s disposition in Boumediene v. Bush.”

The Justices heard arguments in Boumediene/Al Odah on Dec. 5; no date has been set for a ruling, but the Justices are expected to issue a decision before recessing for the summer, probably late in June.

Meanwhile, the second-in-command of the Pentagon’s war crimes regime — Air Force Brig. Gen. Thomas Hartmann — told the Associated Press Thursday that he would not resign his position even though the military judge in Hamdan’s case had barred him from any role in that case and intimated that Hartman should resign.  Hartman said, however, that he might step aside later if his actions caused other war crimes cases to bog down, the AP said in its story.  Hartmann oversees both prosecution and defense in the war crimes system in his role as legal advisor to the commander of that system.  The judge in Hamdan’s case sharply criticized Hartmann for interfering in the prosecution of that case.

Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

Last year, Tom posted this video of how he uses his iPhone, which some readers commented was potentially an effective form of advertising.  Tom decided to take it to a whole new, more direct level.  The results are below.  Enjoy!

(UPDATE: We’ve changed the embedded player, so that the YouTube logo does not interfere with the text. The original YouTube video, however, can be found here. Email jharrow@akingump.com if you have any trouble viewing.)

Last week the Solicitor General filed this invitation brief recommending that certiorari be denied in No. 06-1398, AT&T Pension Benefit Plan v. Call, a case involving the standard of review for certain ERISA benefits determinations and the propriety of an award of prejudgment interest. The SG’s office is likely to file invitation briefs in at least a dozen additional cases in the coming weeks, including:

No. 06-1458, Geddes v. United Staffing Alliance Employee Medical Plan (CVSG 9/1/2007) (standard for judging denials of medical benefits by plan administrators)

No. 07-81, Exxon Mobil v. John Doe (CVSG 11/13/2007) (whether an immediate appeal may be filed if a federal judge refuses a federal government request to dismiss a case in U.S. courts against a foreign government)

No. 07-270, Board of Education of New York v. Gulino (CVSG 12/3/2007) (legal liability for using tests that are alleged to be racially discriminatory in determining the qualitifications of public school teachers)

No. 07-373, Clark County, Nev. v. Vacation Village (CVSG 1/7/2008) (whether federal law bars states from recognizing a property owner’s rights to compensation for use of navigable airspace up to 500 feet above the property)

No. 07-512, Pacific Bell v. LinkLine (CVSG 1/22/08) (whether a company that has no duty under antitrust law to sell to others at wholesale can be held liable for the narrow difference between its wholesale and retail price levels)

No. 07-539, Progress Energy v. Taylor (CVSG 1/14/2008) (Akin Gump for petitioner) (settling FMLA claims)

No. 07-543, AT&T v. Hulteen (CVSG 1/22/08) (Howe & Russell for respondents) (whether federal law requires an employer to set current pension benefits at a level that makes up for a denial of work credit that was legal when it occurred in the past)

No. 07-615, Ministry of Defense v. Elahi (CVSG 2/19/08) (whether U.S. courts can order a seizure of the assets in the U.S. of a foreign government accused of aiding terrorism, with the assets to be used to pay off a debt owed in the U.S.)

No. 07-618, Goss Int’l v. Tokyo Kikai Seisakusho (CVSG 2/19/2008) (whether a U.S. court can bar a company that loses a case and pays a money judgment from suing overseas to try to undo that judgment)

No. 07-619, PT Pertamina v. Karaha Bodas Co. (CVSG 2/19/2008) (foreign litigation and anti-suit injunctions)

No. 07-811, Morris v. Center for Bio-Ethical Reform, Inc. (CVSG 3/31/2008) (role that a law enforcement officer’s motive may play in deciding whether the officer has immunity to a legal claim)

No. 07-841, Amschwand v. Spherion Corp. (CVSG 3/3/2008) (whether a participant or beneficiary in an ERISA health benefits plan may sue for the insurance benefits that would have been available but for a violation of a plan administrator’s duty)

No. 07-8521, Harbison v. Bell (CVSG 3/3/2008) (attempt by a Tennessee death row inmate to get the aid of a federal public defender in state clemency proceedings)

Invitations are also pending in two other cases - No. 07-952, Denton v. Hyman, and No. 07-956, Biomedical Patent Corp. v. California Department of Health Services - but it is likely that briefs in those cases will not be filed until the fall (or later) because the invitations were not issued until April 21.

[Shameless request: If any of you receive invitation briefs in any of these cases, we’d greatly appreciate an electronic copy, as there is sometimes a lag between when they’re filed and when they show up on the SG’s website.]

The Justices are scheduled to hold a private conference at 10 a.m., orders from which are expected to be released on Monday. To view our list of petitions to watch at today’s conference, click here.

In a new phase of the continuing controversy over destruction of government recordings showing harsh interrogation tactics used on detainees, attorneys for a Qatari national argued in a federal appeals court filing Wednesday that new evidence shows he is being wrongly held.  The new document was filed on behalf of the only terrorism suspect still held by the military inside the U.S. – Ali Saleh Kahlah Al-Marri.

President Bush designated Al-Marri as an “enemy combatant” almost five years ago, leading to his detention by the military at the U.S. Navy brig in Charleston, S.C.   The Fourth Circuit, in docket 06-7427, is considering Al-Marri’s challenge to presidential authority to order him detained; a hearing by the en banc Court was held Oct. 31, and a decision is pending.

Based on a government document filed in a federal court in South Carolina at the end of April in a separate case filed by Al-Marri, his attorneys contended Wednesday that his designation as an enemy was “illegal because it was for the illegitimate purpose of interrogation” — a violation of the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld.

A letter making that argument, and transmitting two documents to the Circuit Court, can be downloaded here.  Enclosed with the letter were the Justice Department’s April 30 filing in District Court (found here) that, in part, describes destruction of records of Al-Marri’s interrogation, and a May 6 filing in District Court by Al-Marri’s counsel (found here) further challenging the conditions of his imprisonment and discussing the interrogation records destruction.

Citing the new government paper, the Al-Marri letter said the government’s admission that officials destroyed tape recordings of the interrogations in the Navy brig, along with :other notes and working papers” about the interrogations, “demonstrates that Al-Marri was designated an ‘enemy combatant’ ” for the purpose of questioning him after he had refused to give information earlier when he was being held on civilian criminal charges.

The letter added:  “The [government] filing thus supports Al-Marri’s position that even if the President otherwise could designate as an ‘enemy combatant’ a lawful resident arrested in the United States who was not part of the armed forces of an enemy government, never directly participated in hostilities, and was never on or near a battlefield,…the President’s designation of Al-Marri — who had already been detained in civilian custofy for eighteen months — was still illegal because it was for the illegitimate purpose of interrogation.”

The letter noted that the Fourth Circuit panel decision (set aside when en banc review was granted) had concluded that the Supreme Court in Hamdi had ruled that “indefinite detention for the purpose of interrogation is not authorized.”

(Even though the en banc Circuit Court has the Al-Marri challenge under advisement, federal appeals court rules allow the filing a new legal authorities that may bear on the legal controversy.  Presumably, the government will respond to the new claims of Al-Marri’s counsel.)

In the government filing cited in the letter, the Justice Department was opposing a plea by Al-Marri’s attorneys for a new order requiring the government to preserve tapes and records about interrogation and to conduct a formal inquiry into destruction of such materials.

The document, beginning on page 9, described the destruction between December 2004 and March 2005 of “a number of the recordings” of questioning sessions with Al-Marri that had occurred in June 2003 and sometime in 2004.  Also destroyed, the document said, were “other notes and working papers associated with those sessions.”   The filing said that the government, however, still holds “originals or copies of recordings of nine interrogations sessions.”  Those will be preserved, it said, under new orders from Pentagon and intelligence agency officials.

The paper went on to say that “certain other recordings related to” Al-Marri “have been lost,” because they were overwritten after being recorded on security cameras.

The District Court filing for Al-Marri provided to the Circuit Court Wednesday outlined in detail what it said were the “brutal” methods of interrogation used on Al-Marri in the brig. It said that only one of the nine interrogations tapes that the government said remain has been publicly described, and it shows Al-Marri “being ‘manhandled’ by his interrogators, according to government officials.”

The Department of Justice has just issued the following press release.

SOLICITOR GENERAL PAUL D. CLEMENT TO LEAVE

DEPARTMENT OF JUSTICE

WASHINGTON – Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.

Nominated by President Bush on March 14, 2005, Clement was confirmed as Solicitor General on June 8, 2005, and was sworn in on June 13, 2005. Prior to his confirmation, he served for over four years as Principal Deputy Solicitor General, and during that period served for nearly a year as Acting Solicitor General. Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.

“Paul Clement is one of the nation’s finest appellate lawyers,” said Attorney General Michael B. Mukasey. “I am deeply grateful to Paul for his service to the Department and to the nation during his seven-year tenure in the Office of the Solicitor General. I will miss not only Paul’s superb advocacy on behalf of the United States, but also his wise counsel and keen legal analysis.”

During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

The latest edition of “Petitions to Watch” features cases up for consideration at the Justices’ private conference of May 29. As always, the list reflects the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access previous editions of Petitions to Watch, including the lists for the upcoming conferences of May 15 and 22, visit our archives here on SCOTUSwiki.

Conference of May 29, 2008

__________________

Docket: 07-1026
Case name: Perfect 10, Inc. v. Visa International Service Association, et al.
Issue: Whether, under principles of secondary copyright liability, credit card companies may be liable for processing payments of offshore web sites alleged to be featuring copyrighted works.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Motion Picture Association of America, Inc., et al. (in support of the petitioner)
• Amicus brief of the International Anticounterfeiting Coalition Inc., et al. (in support of the petitioner)

__________________

Docket: 07-1095
Case name: Orient Mineral Company, et al. v. Bank of China
Issue: Whether, under the commercial activity to the Foreign Sovereign Immunities Act, investors in Chinese gold mines can sue the Bank of China in U.S. courts.

• Opinion below (10th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

__________________

Docket: 07-1099
Case name: Major League Baseball Advanced Media, et al. v. C.B.C. Distribution and Marketing, Inc.
Issue: Whether the First Amendment trumps state rights of publicity laws for online fantasy baseball providers seeking to use the names and statistics of major league players.

• Opinion below (8th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the National Football League Players Association, et al. (in support of the petitioner)

__________________

Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, following Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the 11th Amendment.

• Opinion below (5th Circuit)
• Petition for certiorari
• Brief in opposition (Federal respondent)
• Petitioner’s reply
• Amicus brief of Jena Band of Choctaw Indians, et al. (in support of the petitioner)

__________________

Docket: 07-1246
Case name: Hanna Steel Corporation, et al. v. Katie Lowery, et al.
Issue: What burden a defendant must carry to remove a class action to federal court when damages are unspecified in the complaint.

• Opinion below (11th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply
• Amicus brief of the Product Liability Advisory Council, Inc. (in support of the petitioner)
• Amicus brief of the Defense Research Institute (in support of the petitioner)

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Recent Stanford Law graduate Scott Stewart authored this recap of Monday’s decision in Gonzalez v. US. Visit the Gonzalez SCOTUSwiki page, here, to find background information on the case.

The Federal Magistrates Act, 28 U.S.C. § 631 et seq., permits district judges to delegate certain functions to magistrate judges. Presiding over felony voir dire and jury selection is one such function (under Peretz v. United States (1991)), but parties must consent to the delegation. In Gonzalez v. United States, No. 06-11612, the Court considered the question whether counsel alone may consent to the delegation, or whether the defendant must personally consent. On Monday, May 12, 2008, the Court answered that question: counsel’s consent is enough.

In December 2004, a federal grand jury indicted petitioner Homero Gonzalez for drug-related offenses. Before jury selection began, a magistrate judge asked the prosecutor and Gonzalez’s counsel – but not Gonzalez himself – whether they would consent to her assisting in jury selection. Both attorneys consented, and the magistrate conducted the jury selection. Voir dire proceeded without any defense objection, the case proceeded to trial, and the jury convicted Gonzalez on all counts. On appeal, Gonzalez claimed for the first time that because he did not personally consent to the magistrate judge presiding over voir dire, he was entitled to a new trial. The court of appeals affirmed the conviction.

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Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

Oral arguments have concluded for the term. If any orders are issued today in pending cases, we will post them promptly.

UPDATE: 2:35 pm Tuesday, May 13

The blog has learned that the petition featured below in No. 07-1024, Screen Actors Guild v. Metoyer, has been withdrawn following the settlement of the case.

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The following column, featuring a selected petition up for consideration at the Justices’ private conference on May 8, appears in today’s edition of Legal Times (available to subscribers here). To see the full list of “petitions to watch” for Thursday’s conference, click here.

From movie scripts to Academy Award speeches, Hollywood often portrays itself on the forefront of race relations in this country. For years, however, the Screen Actors Guild—the labor union representing the bulk of film and television performers—has itself faced numerous racial discrimination suits from its own employees.

On May 15, the Supreme Court will consider whether to accept a case involving particularly unsavory allegations against the guild, stemming from the firing of its former director of affirmative action. At issue is whether employers may assert a so-called “mixed-motive defense” to discrimination charges under 42 U.S.C. 1981, a post-Civil War statute enacted to ensure black citizens enjoyed the same contract rights as whites.

In November, the U.S. Court of Appeals for the 9th Circuit held that employers sued for race discrimination under the law could not avoid trial simply by showing the action in question was also based on a legitimate, nondiscriminatory reason. The guild—which represents some 120,000 actors—appealed the decision, and the justices are expected to announce on May 19 whether they will hear the case. (The petition is No. 07-1024, Screen Actors Guild v. Metoyer.)

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Last month, in an entry here, we posted the cert. petition in the case of Kay v. US, No. 07-1281.  Earlier today, two cert.-stage amicus briefs were filed in the case: this one on behalf of the U.S. Chamber of Commerce, and this one on behalf of the National Association of Criminal Defense Lawyers.  The Chamber’s brief features J. Scott Ballenger of Latham & Watkins as counsel of record, while NACDL is represented by John Cline of the firm Jones Day.

The U.S. Government’s Brief in Opposition is due on June 11.

Today’s opinion by Justice Kennedy in Gonzalez v. United States (06-11612) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion.

A copy of today’s orders list — containing a grant of certiorari in one case — is now available here. Copies of all available certiorari filings in the case are available after the jump.

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