Publications

Didn’t the summer just fly by? It seems like just yesterday that we were all watching the Court hand down its final opinions from OT 2002 and wondering which Justices, if any, would retire. Well, they’re all back for another Term, and so am I. Welcome to another Term of Supreme Court updates!

For those newcomers to this list, my hope is that the updates allow you (mostly lawyers) to keep up with the Court’s business with a minimal investment of time. With that goal in mind, I report on all Court opinions and significant Court orders. In the “significant orders” category, I include all cert grants and all requests that the Solicitor General file a brief in a case. (When the Court asks the SG to file a brief, it means they’re interested in the case, and more likely to grant the petition.) Although I will report on a “cert denied” if the case is of interest, I don’t usually discuss “cert denieds” given the large quantity of such orders and their usual insignificance. That said, I’m happy to follow (and report on) specific cases if anyone has a particular interest in a pending case. Just let me know and I’ll track it for you and/or report on it in the updates.

Enough of the preliminaries; on to business: The Court granted cert in 10 cases today.

1. BedRoc Ltd. v. United States (02-1593): This is a case about the scope of certain mineral reservations under the Pittman Underground Water Act. Specifically, the Court will decide whether “sand and gravel” are encompassed within the term “valuable minerals” under that Act.

2. Tennessee Student Assistance Corp. v. Hood (02-1606): The sovereign immunity theme in the Court’s jurisprudence continues. In this case, the Court will decide whether Congress has the authority to abrogate state sovereign immunity under the bankruptcy clause of the Constitution.

3. Scarborough v. Principi (02-1657): An attorneys’ fees case: To obtain fees under the Equal Access to Justice Act, an applicant must allege, within thirty days of final judgment, that the government’s position in the underlying litigation lacked substantial justification. This case asks whether that requirement is jurisdictional.

4. Yarborough v. Alvarado (02-1684): In this case, the Court will decide whether a juvenile’s age and experience bear on whether that person is “in custody” for purposes of Miranda.

5. Hibbs v. Winn (02-1809): In this case, the 9th Circuit held that the Tax Injunction Act does not bar a suit challenging an Arizona tax credit program. The Court will review that decision.

6. Smith v. Dretke (02-11309): I haven’t been able to verify from an independent source, but it seems the question presented in this case is this: Did the Court of Appeals misapply Penry v. Johnson by imposing a requirement that evidence demonstrate a “uniquely severe permanent handicap” in order for a Texas capital murder defendant to claim that a “nullification” instruction was improper?

7. Austria v. Altmann (03-13): A case about the Foreign Sovereign Immunities Act in the context of a suit alleging that the Austrian government was complicit in the unlawful expropriation of Jewish-owned art between 1938 and 1948. The question presented: Does the expropriation exception of the FSIA afford jurisdiction over claims against foreign states based on conduct that occurred before the United States adopted a restrictive theory of sovereign immunity in 1952?

8. Iowa v. Tovar (02-1541): This is a Sixth Amendment case, asking whether that Amendment requires a court to give a rigid and detailed admonishment to a pro se defendant about the usefulness of an attorney.

9. Beard v. Banks (02-1603): In this habeas case, the Court will decide whether the rule in Mills v. Maryland (1988) is a new rule of law for purposes of the retroactivity analysis of Teague v. Lane. (Mills held that states cannot require jurors in capital cases to unanimously agree that a particular mitigating circumstance exists before they may consider that circumstance in their sentencing determination.)

10. United States v. Lara (03-107): An Indian sovereign immunity case. Whether Section 1301 of the Indian Civil Rights Act validly restores tribes’ sovereign power to prosecute members of other tribes (rather than delegating federal prosecutorial power to tribes), such that federal prosecution following tribal prosecution for offense with same elements is valid under the Double Jeopardy Clause.

That’s it for today. As always, I welcome any comments, questions, or corrections. Thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.