Order List

November 7, 2005 Supreme Court Update

Greetings, Court fans!
In today's order list, the Court surprised us by granting the petition for cert in Hamdan v. Rumsfeld (05-184), where the Court will consider the constitutionality of the special military tribunals established by President Bush to try foreign nationals suspected of terrorist acts. Apparently, the fourth time was a charm for Hamdan, as the case had been considered in Conference three times previously with no action taken. Chief Justice Roberts, who sat on the D.C. Circuit panel that upheld the use of these tribunals. disqualified himself from the decision to grant review. He also will not participate in consideration of the case on the merits.
The Court will consider the following questions presented in Hamdan: (1) Is the military commission established by the President to try petitioner and others similarly situated for alleged war crimes in the "war on terror" duly authorized under Congress's Authorization for the Use of Military Force, the Uniform Code of Military Justice, or the inherent powers of the President? (2) Can the petitioner and others similarly situated obtain judicial enforcement from an Article III court of the rights protected under the 1949 Geneva Convention in an action for writ of habeas corpus challenging the legality of their detention by executive branch?
The Court also agreed to hear two consolidated cases, Bustillo v. Johnson (05-51) and Sanches-Llamas v. Oregon (04-10566), that ask whether state courts are required to consider claims by inmates who are foreign nationals that they have been denied their right to consular access under the Vienna Convention on Consular Relations. Some of you may remember that the Court granted cert on this very issue last term in Medellin v. Dretke, but later dismissed cert as improvidently granted because developments in that case made the Court's review potentially unnecessary. Justice O'Connor dissented from that ruling, arguing that the issue was "a vexing problem" and a "question of national importance" that the Court should resolve on the merits. It looks like the Court will do just that this Term (although perhaps without Justice O'Connor, since argument is set for March).
The questions presented in Sanches-Llamas are: (1) Does the Vienna Convention convey individual rights of consular notification and access to a foreign detainee enforceable in the courts of the United States? (2) Does the state's failure to notify a foreign detainee of his rights under the Vienna Convention result in the suppression of his statements to police? The Court limited its grant in Bustillo to the following question: May state courts, contrary to the International Court of Justice's interpretation of the Vienna Convention on Consular Relations, refuse to consider violations of Article 36 of that treaty because of a procedural bar or because the treaty does not create individually enforceable rights?
Finally, in Howard Delivery Service v. Zurich America Insurance Co. (05-0128), the Court will consider whether unpaid worker's compensation premiums are entitled to priority treatment in bankruptcy, or more specifically: In a bankruptcy case, is an unsecured claim for unpaid premiums owing to the debtor's statutory workers' compensation liability insurance policy entitled to priority under Section 507(a)(4) of the Bankruptcy Code as a "contribution to an employee benefit plan arising from services rendered"?
That's all for today. 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.