Order List

November 20, 2007 Supreme Court Update

Greetings, Court Fans!

It was not a very busy day at the Court – the Court issued no opinions, heard no arguments, and issued a one-page order list dealing with only three cases. It was, however, quite an eventful day, as the order list indicates that the Court has added three new cases to its argument calendar for the Term, including the first Second Amendment case to reach the Court in almost seventy years. The Court granted cert in District of Columbia v. Heller (07-290), in which it will consider the constitutionality of Washington, D.C. ordinances banning the registration of privately-owned handguns. The question presented, as framed by the Court itself, is: "Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?" Interestingly, the Court did not accept the District's characterization of the question presented, which focused on the fact that the ordinances distinguish between handguns and rifles and shotguns (for which private registration is allowed). Instead, it authored its own question tracking more closely to the respondents' version, which focused on the individual right to keep firearms, including handguns, in one's home. In addition to the hot-button Second Amendment issue at the center of the case, Heller has all sorts of neat little complications; for example, since the District is not a state, a ruling in the respondents' favor would not necessarily invalidate state or local gun control laws – though it certainly would set off a firestorm of new litigation. Assuming the Court finds no reason to DIG the case or otherwise duck its own question, we can expect to wait for this opinion until the very end of the Term.

The Court's other cert grant today was in Chamber of Commerce v. Brown (06-939), which asks: "Is the State of California's regulation of noncoercive employer speech about union organizing preempted by federal labor law?" In English, the case asks whether federal labor law prevents states from barring companies that receive state funds from using those funds to promote or deter union organizing while bargaining with a union.

Finally, the Court also noted that it will hear a complicated voting rights appeal by the state of Alabama in Riley v. Kennedy (07-77), though part of the argument will focus on whether the Court even has jurisdiction to reach the merits. The case concerns the "preclearance" requirement of the Voting Rights Act, which requires that the U.S. Attorney General sign off on changes to state voting procedures. In this case, the Alabama Supreme Court ruled that a local law calling for a special election for county commissioners was unconstitutional as a matter of Alabama law, but several Alabama state legislators successfully argued in federal district court that the Alabama Supreme Court decision itself was a "change" that had to be precleared by the AG before it could be implemented – in other words, the state had to follow the unconstitutional law until the AG said it was OK to follow the supreme court's ruling. Alabama's specific questions on appeal are: (1) Whether the decision of a covered jurisdiction's highest court that a precleared State law is unconstitutional and, thereby, invalid as a matter of State law is a change that affects voting that must be precleared before it can be enforced; and (2) Whether the preclearance of a trial court's ruling that affects voting while that ruling is on appeal and subject to possible reversal establishes a baseline such that the reversal of that decision is a change that must be precleared before it may be enforced. Like we said, the case is complicated. The appellees, however, have argued that Alabama's appeal is untimely, so the Court also will focus on the question of jurisdiction.

That's all for now. Have a Happy Thanksgiving, and thanks for reading!
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