Publications

Greetings, Court fans, and welcome to another season of Supreme Court Updates!

A lot has happened since we last cluttered your inbox, most notably and sadly the untimely passing of Chief Justice Rehnquist and John Roberts’ re-nomination to the Court, this time to succeed Rehnquist as Chief rather than replace Justice O’Connor, who may or may not serve until the confirmation of her ultimate successor. By themselves, those events have already set the stage to make October Term 2005 an eventful one, and we look forward to following the Court with you once again. As in past Terms, when the Court issues an order or opinion, we will send an e-mail summarizing the highlights to provide all of you with a way to follow the Court with a minimal investment of time. Hopefully, you will find these updates to be quick and user-friendly summaries of the Court’s actions and decisions.

As a teaser for what’s to come, we thought we’d give you a brief summary of some of the major cases that are waiting on the Court’s argument docket. As you’ll see from the list below, the new Court will have to wade into numerous controversies almost immediately.

Gonzalez v. Oregon (04-623, to be argued Oct. 5), concerns whether the Attorney General has permissibly construed the Controlled Substances Act (“CSA”) and its regulations to prohibit the distribution of federally controlled substances to assist an individual’s suicide, even if state law allows such a distribution. The Ninth Circuit enjoined enforcement of the AG’s directive, finding that he had attempted to exercise control over an area of law traditionally reserved to the States without a clear statement from Congress authorizing him to do so, and that he had exceeded his authority under the CSA. It will be interesting to see whether the Court’s decision last term in Gonzales v. Raich (the medical marijuana case) has any impact on this case.

Staying on the theme of controlled substances, in Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal (04-1084, to be argued Nov. 1), the Court will consider whether the 1993 Religious Freedom Restoration Act (“RFRA”) requires the government to permit the importation, distribution, and possession of hoasco, a Schedule I hallucinogenic controlled substance used by UDV, a small New Mexico religious organization, in its ceremonies. The District Court preliminarily enjoined the AG from enforcing the CSA in the case. On appeal, a majority of the en banc Tenth Circuit panel held that UDV had to satisfy a heightened standard of review to obtain a preliminary injunction, but a different majority voted to affirm the injunction.

Next, in Rumsfeld v. Forum for Academic & Institutional Rights [“FAIR”] (04-1152, to be argued Dec. 6), the Court will consider the constitutionality of the “Solomon Amendment,” which denies federal funds to colleges that deny equal access to military recruiters, an issue that came to the fore when some universities refused to allow military recruiters on campus in response to the military’s “don’t ask, don’t tell” policy. FAIR, an organization of law schools and law faculties, challenged the Solomon Amendment on the ground that it impeded law schools’ right to expressive association and compelled their speech by requiring them to advance the military’s policy of excluding homosexuals. The Third Circuit agreed that FAIR was likely to win on its First Amendment claim and entered a preliminary injunction barring the Amendment’s enforcement (but the Third Circuit also stayed its order, leaving the Amendment in effect, pending Supreme Court review). The question presented to the Court is: “Whether the court of appeals erred in holding that the Solomon Amendment’s equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?”

Finally, on November 30, the Court will tackle two different aspects of the abortion debate. In Ayotte v. Planned Parenthood (04-1144, to be argued Nov. 30), the Court will consider the standard of review applicable to state statutory restrictions on abortion. New Hampshire abortion providers sued the state under 42 U.S.C. 1983, arguing that the state’s parental notification law for minors seeking abortions was facially unconstitutional. Applying the “undue burden” standard from Planned Parenthood v. Casey and Stenberg v. Carhart, the First Circuit invalidated the law on the grounds that it lacked an exception for cases where the mother’s health was at risk and that its “death exception” to protect the life of the mother was too narrow. The Court will consider whether the First Circuit was right to apply the “undue burden” standard rather than the test from United States v. Salerno, which holds that parties bringing facial challenges to statutes must show that there is “no set of circumstances” under which the law would be valid.

On the same day, the Court will also hear Scheidler v. NOW (04-1244) and Operation Rescue v. NOW (04-1352), which concern the use of civil RICO provisions against anti-abortion protesters. This is a bit of a rerun for the Court. Back in 2003, the Court in Scheidler reversed a civil RICO judgment and injunction against anti-abortion protesters, finding that all the predicate acts supporting the finding of a RICO violation had to be reversed; therefore the judgment had to be reversed and the injunction vacated. Thus, the Court did not reach the issue of whether a private civil RICO plaintiff can get injunctive relief in the first place. The two new cases stem from the Seventh Circuit’s treatment of Scheidler on remand and raise similar (and complicated) questions presented. Here are Scheidler’s: 1) Whether the Seventh Circuit, on remand, disregarded this Court’s mandate by holding that “all” of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the “judgment that petitioners violated RICO” was not necessarily reversed, and that the “injunction issued by the District Court” might not need to be vacated. 2) Whether the Seventh Circuit correctly held that the Hobbs Act, 18 U.S.C. 1951(a), can be read to punish acts or threats of physical violence against “any person or property” in a manner that “in any way or degree . . . affects commerce,” even if such acts or threats of violence are wholly unconnected to either extortion or robbery. 3) Whether this Court should again grant cert to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. 1964(c).

Those are just some of the legal wonders that await us in the coming Term. FYI, the Court issued its first order list today, in which it granted cert in ten new cases and noted probable jurisdiction in yet another. So we’ll be writing again tomorrow with a summary of the questions presented. Until then, thanks for joining us for another Term!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400.