Crawford v. Roe (05-A333), Schiro v. Smith (04-1475) and order list

October 17, 2005 Supreme Court Update

Greetings, Court Fans!
It was a rather slow Monday, with perhaps the most interesting (i.e., controversial) ruling coming in the denial of a motion for stay in Crawford v. Roe (05-A333), involving the right of a pregnant prisoner in Missouri to obtain an abortion. The prisoner, Roe, was initially housed in California and requested an abortion while there, but was moved to Missouri before an abortion could be performed. Missouri prison officials refused to permit the abortion absent medical necessity, citing state policy to discourage abortions. A federal district court entered an emergency order requiring prison officials to permit Roe to go to a St. Louis clinic for the abortion. On Friday night, Justice Thomas had temporarily blocked the district court's order, but the Court today denied the state's motion for stay, clearing the way for Roe's abortion.
The Court also issued a per curiam opinion (with no recorded dissents) today in Schiro v. Smith (04-1475), a case involving Arizona's right to select the method for determining whether a criminal defendant is retarded and therefore exempt from execution under Atkins v. Virginia. The Ninth Circuit had ordered that the issue of retardation be decided by jury trial. The Court reversed, reiterating its holding in Atkins that states may adopt their own measures for adjudicating claims of retardation. While these measures ultimately may be subject to constitutional challenge, the states must be given the first crack at developing procedures and cannot be preempted by the federal courts. Ah, the Ninth Circuit is off to another great start . . . .
The Court granted cert in one case today – Washington v. Recuenco (05-83), a criminal case in which it will consider "whether error as to the definition of a sentencing enhancement should be subject to harmless error analysis where it is shown beyond a reasonable doubt that the error did not contribute to the verdict on the enhancement."
The Court also revised its grant of cert in Zurich Insurance Co. v. Chatham County, Georgia (04-1618), the sovereign immunity case from last week's order list. Instead of addressing all seven questions from the petition, the Court will consider only the following question of its own design: "Whether an entity that does not qualify as an ‘arm of the State' for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit?"
Once again, the Court took no action on the cert petition in Hamdan v. Rumsfeld (05-184), regarding the use of military commissions to try certain terrorism suspects. It did, however, decline to hear U.S. v. Philip Morris USA, Inc. (05-92), in which the government challenged the D.C. Circuit's ruling that tobacco companies cannot be forced to disgorge past profits if they are found to have violated RICO. Obviously, that ruling considerably reduces the financial exposure for tobacco companies in this litigation.
Until next time, thanks for reading!
Kim & Ken
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.