It’s a bit late, but I thought I’d pass along the always amusing Supreme Court summary, from Mark Stancil at Baker Botts. It’s funny and actually pretty informative:
Hoping to put the “win” back in Erwin, Professor Erwin Chemerinsky (formerly of USC, now slinging fed. courts and con. law at Duke) scored his second grant of the Term with Van Orden v. Perry, Gov. of Texas (03-1500). The question presented is whether a large monument, six feet high and three feet wide (eight cubic cubits for our Biblical scholars), presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the First Amendment. The Fifth Circuit descended on Chemerinksy’s argument like a plague of locusts, concluding that the display advanced a valid secular purpose and “would look nice with a gun rack, too.” If you believe what you read on the Internet (and, when you’re as lazy as I am, you have no choice) this is the Court’s first foray into the Commandments game in 20-plus years.
Complementing Van Orden (but not consolidated with it), the Court granted cert. in McCreary County, KY v. ACLU of Kentucky (03-1693), which asks: (1) whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular; (2) whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by the court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols; (3) whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence; (4) whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion. The Sixth Circuit found the display unconstitutional, but it’s tough to see the Court affirming here without sandblasting Moses and the Commandments off the frieze in the Court’s argument chamber.
Appropriately, these two cases are likely to be resolved in accordance with I Kings 3:16-28. (“And [O’Connor] said: ‘Fetch me a sword.’ And they brought a sword before [O’Connor]. And [O’Connor] said: ‘Divide the living child in two, and give half to the one, and half to the other.'”).
Rounding out the day’s Establishment Clause action is Cutter v. Wilkinson, Dir. Ohio D.O.C. (03-9877) – Whether the institutionalized-persons provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc-1, are valid under the Establishment Clause of the First Amendment. As relevant here, RLUIPA addresses the religious accommodations required for prison inmates.
Orff v. United States (03-1566) involves the slightly less exciting dispute over whose salmon was gored when a federal irrigation project was cut back to accommodate the Endangered Species Act. The Ninth Circuit concluded that petitioners, farmers who preferred that water flow to their crops rather than frisky fish, are not entitled to sue under the agreement governing the federal irrigation district. The question presented is whether the farmers are “intended” third-party beneficiaries of their irrigation district’s water service and repayment contracts with the U.S. Bureau of Reclamation and therefore entitled to sue for breach thereof, or whether they are merely “incidental” third-party beneficiaries and therefore not so entitled?
Exxon Mobil Corp. v. Saudi Basic Industries Corp. (03-1696) comes to us from the Third Circuit and asks the age-old question: May the Rooker-Feldman doctrine, which bars lower federal courts from conducting de facto appellate review of decisions by state courts, be expansively interpreted to additionally incorporate preclusion principles and divest federal courts of jurisdiction solely because a pending state-court proceeding presents identical issues, notwithstanding the long-established system of dual federal and state jurisdiction? There is nothing particularly funny to say about the Rooker-Feldman doctrine.
In Exxon Corp. v. Allapattah Services, Inc. (04-70) and Maria Del Rosario Ortega v. Star-Kist Foods, Inc. (04-79) (consolidated for 90 minutes of oral argument), the Court granted cert. only on the question whether the supplemental jurisdiction statute, 28 U.S.C. § 1367, authorizes federal courts with diversity jurisdiction over the individual claims of named plaintiffs to exercise supplemental jurisdiction over the claims of absent class members that do not satisfy the minimum amount-in-controversy requirement? (Exxon had also asked the Court to determine whether Rule 23 of the Federal Rules of Civil Procedure authorizes the certification of a multi-state class action where individual reliance by each class member is at issue and where the predominance of common issues can be established only by distorting the law of the applicable states.)
Lingle, Gov. of Hawaii v. Chevron U.S.A. (04-163) will be a nice companion to last week’s grant in Kelo v. New London (04-108) (does condemnation of slums to allow high-end development meet the public purpose prong of the Takings Clause?). At issue here is a state law capping rents that oil companies can charge gas station lessees, which ostensibly was designed to keep retail fuel prices low. The Ninth Circuit struck down the law, finding it does not substantially advance the state’s asserted public interest. The questions presented are: (1) Whether the Just Compensation Clause authorizes a court to invalidate state economic legislation on its face and enjoin enforcement of the law on the basis that the legislation does not substantially advance a legitimate state interest, without regard to whether the challenged law diminishes the economic value or usefulness of the property. (2) Whether a court, in determining under the Just Compensation Clause whether state economic legislation substantially advances a legitimate state interest, should apply a deferential standard of review equivalent to that traditionally applied to economic legislation under the Due Process and Equal Protection Clauses, or may instead substitute its judgment for that of the legislature by determining de novo, by a preponderance of the evidence at trial, whether the legislation will be effective in achieving its goals.
The Court CVSG’d in three cases:
Bank of China, NY Branch v. NBM L.L.C. (03-1559) – (1) Did the Second Circuit err when it held, contrary to its own previous holding and the holdings of the First, Third, Seventh, and Ninth Circuits, that civil RICO plaintiffs alleging mail and wire fraud as predicate acts must establish a “reasonable reliance” under 18 U.S.C. § 1964? (2) Did the Second Circuit err when it held, for the first time ever by any court, that civil RICO plaintiffs alleging bank fraud as predicate acts must establish “reasonable reliance” under 18 U.S.C. 1964(c)?
McFarling v. Monsanto Co. (04-31) – (1) May a patent holder lawfully prohibit farmers from saving and replanting seed as a condition to the purchase of patented technology? (2) Does obtaining patents on products which are the subject of licensing agreements afford an absolute defense to any claim that the licensing agreements violate the Sherman Act?
Comstock Resources v. Kennard (04-165) – Whether, under the False Claims Act, individuals who possess no personal, firsthand knowledge of any aspect of an alleged fraud have the requisite “direct and independent knowledge” to qualify as an “original source” under 31 U.S.C. § 3730(e)(4).
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