With today’s decision in Bloate (pronounced “blow-tay”) v. United States, there are only four cases undecided from the 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 […]
Author Archive | John Elwood
Tales of OLC Opinions Foretold
As the Washington Post is reporting today (on page A16 in the print edition), Office of Legislative Affairs AAG Ron Weich has sent a letter to Congressional Hispanic Caucus Chairperson Nydia Velazquez assuring her that the information-gathering and information-sharing provisions of the PATRIOT Act do not override the preexisting confidentiality requirements of the Census Act. […]
Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance
By John Elwood on February 16, 2010 4:04 pm in Criminal Procedure, Ninth Circuit Smackdown (Again), Supreme Court
It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter […]
Supreme Court Relist Watch: Thaler v. Haynes and review of Batson claims
As the Supreme Court comes to the end of its nearly month-long recess, I thought it’d be good to review some of the cases the Court has relisted repeatedly in anticipation of what might be coming when the orders list is released Monday Feb. 22. Time permitting–and that is a big “if”—this will be the […]
Nerds’ Night Out: “The Rivalry” at Ford’s Theatre
Last night I went to see “The Rivalry” at Ford’s Theatre, Norman Corwin’s 1958 play dramatizing the Lincoln-Douglas debates, and written on the occasion of their centennial. Going into it, I thought two full hours of a play based on a political debate would be a bit much. But I, and the other three nerds […]
The Evenhandedness of Justice Thomas’s Noriega dissent
Or, “Elwood on Adler on Dorf on Thomas on Noriega.” As Jonathan Adler notes below, Michael Dorf comments favorably on the evenhandedness of Justice Thomas’s description in his dissent from denial of cert. of the arguments made by Manuel Noriega, even though Prof. Dorf presumes that Justice Thomas, like Dorf himself, would not be persuaded by them. […]
Court action at last in Noriega v. Pastrana
After relisting the case a whopping ten times, the Court at last denied cert in Noriega v. Pastrana, which presented the questions whether Section 5 of the Military Commissions Act of 2006, which provides that “[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action,” precluded […]
Impromptu Supreme Court Opinion in Gay Marriage Case
The Supreme Court, nearly an hour after its 4 pm deadline passed, just handed down a 17-page per curiam opinion enjoining broadcast of the gay marriage trial going on in the Northern District of California pending resolution of an anticipated cert petition or petition for mandamus. Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, […]
Today’s opinion in NRG Power Marketing
Today’s 8-1 opinion in NRG Power Marketing appears to reflect a fairly market-friendly view of the world. The Federal Power Act, 16 USC §§ 791a et seq., requires that rates for the sale of electricity in interstate commerce be “just and reasonable.” The Court held in United Gas Pipe Line Co. v. Mobile Gas Service […]
No Citizens United this week.
The Court apparently released just one case today, an 8-1 reversal in NRG Power Marketing v. Maine Public Utilities Commission, No. 08-674. Still no Citizens United opinion. The further delay reinforces my impression that the decision will be a “dog’s breakfast” of separate opinions. As for timing, it seems likely the Court will release an […]
Signing Statements–the Administration’s (Reported) New Take
I am sure that I am not alone in noticing that the White House webpage hasn’t had a new constitutional signing statement posted since last summer. This article by the NY Times’ Charlie Savage Friday sheds new light on why that is. According to the article, the Administration has a new policy on signing statements […]
Least Effective Question Presented, part I
From a recent(ish) cert. petition: (1) Was St. George Tucker correct when he told his William & Mary law students circa 1803 that all searches and seizures were considered general warrants and thus unconstitutional under the Fourth Amendment unless based upon probable cause, supported by oath or affirmation, and particularly describing the place to be […]
Manuel Noriega, the Supreme Court, and the War on Terror
Former Panamanian general and “chief executive officer” Manuel Noriega will forever be associated with the “war on drugs”: After the US invaded Panama and removed him from power in 1989, he was convicted of federal drug trafficking charges and he has been in prison ever since. But it appears that he has come to the […]
Looking Forward After Pottawattamie County
Yesterday the Supreme Court granted petitioners’ motion to dismiss the writ of certiorari pursuant to Rule 46 in the spellcheck-challenging Pottawattamie County v. McGhee, 08-1065, which involved whether prosecutors who try a case are entitled to immunity when sued for allegedly procuring before trial false evidence to frame a criminal defendant. The motion, which petitioners […]
Kozinski vs. DOJ/OPM part III
In the latest installment of Chief Judge Kozinski vs. DOJ(OLC)/OPM, discussed in my post below, Chief Judge Kozinski issued yet another order today, in apparent response to OPM’s statement on Friday refusing, based on DOJ/OLC’s advice, not to abide by his earlier orders. It reads, in its entirety: The time for appeal from my orders […]