Two apparent relists by the Supreme Court today (there are probably more, but these are the only two I’ve inferred). Sears v. Upton, 09-8854, a capital case on petition for a writ of certiorari to the Supreme Court of Georgia, which presents two issues: (1) Having found that capital trial defense counsel were constitutionally deficient […]
Author Archive | John Elwood
Sabotage! Or How “Dilbert” Won The War
A friend of mine who works in the intelligence community brought this jewel to my attention. In January 1944, the Office of Strategic Services created a secret document entitled “Simple Sabotage Field Manual” (available here as a free audio book) to assist operatives in disrupting the Axis war effort. It contains the expected stuff about […]
Summary Reversal Watch in Jefferson v. Upton
It has been a very busy Term at the Supreme Court for summary reversals: There have been 10 already—far more than the Court usually has in an average Term, and the Term ain’t over yet. The odds are good that we’re about to get one more, in a capital case out of the Eleventh Circuit, […]
Important Relist in First Amendment/Business Case
Although determining whether the Supreme Court has relisted a case is somewhat dicey before the Court actually updates its docket, it appears as though the Court has relisted one very important business case that was on for Friday’s conference: Cablevision Systems Corp v. FCC, 09-901, CA2 (Walker, Cabranes, Raggi), which presents the question whether the must-carry […]
The Supreme Court’s Entrance, Justice Breyer, and Foreign Law
Justice Breyer is famously willing to look to foreign law for ideas on how to resolve legal questions, saying that there’s no reason not to look at how foreign judges have solved sticky problems when he is confronted with similar issues. So I guess we shouldn’t be surprised that Justice Breyer looks to foreign practice […]
Reading The Tea Leaves for the Supreme Court’s November and December 2009 Sittings
With the Supreme Court’s two opinions today in Merck & Co. v. Reynolds and Stolt-Nielsen S.A. v. AnimalFeeds International Corp., there are now only four cases outstanding from the Court’s December sitting, and all of them are potentially blockbusters: Free Enterprise Fund v. PCAOB (involving the constitutionality of the Public Companies Accounting Oversight Board, created by […]
After Stolt-Nielsen v. AnimalFeeds Int’l Corp.: Deciding When Class Arbitration Is Permissible
There may not be much interest among the general readership in today’s opinion in Stolt-Nielsen SA v. AnimalFeeds International Corp., but it’s an important decision for businesses. The Court held by a 5-3 vote (with Justice Sotomayor recusing herself), along the familiar ideological lines, that the Federal Arbitration Act does not permit imposition of class […]
Recess Appointments to Art. III Courts, 1789-2004
When I was in the Office of the Solicitor General, I was the Assistant who worked on the (many) briefs in opposition to cert petitions challenging the recess appointments of Judges William Pryor and Charles Pickering in 2004. In connection with those opps, Bristow Fellow Ileana Ciobanu and I compiled this list using DOJ and […]
The Supreme Court and Presidential Signing Statements: United States v. Stevens
One of the things that struck me during the kerfuffle about presidential signing statements during the Bush Administration was the widely held belief that presidential signing statements were immediately and consistently implemented throughout the Executive Branch. In my experience, signing statements are typically used simply to “lay down a marker” with Congress by saying where […]
Dawn Johnsen Withdraws Nomination to be OLC Chief
Dawn Johnsen has withdrawn her nomination to be OLC Chief, the Associated Press reports.
My Favorite Photo of Justice Stevens
From his 1975 confirmation hearings. He has aged well, physically and intellectually. And as an aside, why were bow ties so skinny at a time ties as a whole were so wide?
An Insufficiently Deferential D.C. Circuit?
In a column entitled “Regulatory Failure? Blame the D.C. Circuit,” Washington Post finanical writer Steven Pearlstein argues that the D.C. Circuit shares some of the blame for regulatory failures because its excessively searching review has demoralized regulators. He writes: [A]s we were reminded by a case this week involving the Federal Communications Commission, another big […]
(Continuing) Speculation About Authorship of Remaining October Supreme Court decisions
With today’s decision in Padilla v. Kentucky, there are only three cases undecided from the Supreme Court’s October sitting: United States v. Stevens, 08–769 (the First Amendment challenge to the federal prohibition on depictions of animal cruelty); Salazar v. Buono, 08–472 (involving an Establishment Clause challenge to a cross used in a war memorial that […]
“We have to pass the bill so that you can find out what is in it” (continued)
I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill. Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims […]
Punishing a lawyer for his clients (continued)
An interesting post by Ed Whelan at Bench Memos. Ed states: According to reliable sources, the White House had settled on [Sri] Srinivasan to fill one of the two vacancies on the D.C. Circuit. (Both of the vacancies predate President Obama’s inauguration; indeed, the older one is the seat John Roberts vacated in 2005 to […]