Order List

November 7, 2006 Supreme Court Update

Greetings, Court Fans!
Still no decisions from the Court, though we do have some items to report from Friday's and Monday's order lists. The big news this week, however, is that tomorrow the Court will hear arguments in Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382), in which it will consider the constitutionality of the federal Partial Birth Abortion Act of 2003. The Carhart case is a follow-up to the Court's 2000 decision in Stenberg v. Carhart, in which a 5-4 Court struck down a similar Nebraska law in part because it did not include a "medical necessity" exception. Two things are different this time around. First, the federal law includes a factual finding by Congress that there never is a medical necessity for a partial-birth abortion, so it will be interesting to see how the Court treats that finding. Second, Justice O'Connor, a member of the Stenberg majority, is no longer on the Court, and thus the law's opponents are focusing much of their effort on swaying Justice Kennedy, who dissented in Stenberg. Whatever happens, we're grateful the Court isn't hearing the cases until after Election Day. If you're interested, the oral argument recordings should be available by early afternoon tomorrow on the Court's web site.
Friday's order list included grants in two cases concerning the Federal Sentencing Guidelines, Claiborne v. United States (06-5618), and Rita v. United States (06-5754). The cases are follow-ups to the Court's 2005 decision in United States v. Booker, in which it held that the Guidelines were constitutional so long as they were only advisory for judges rather than mandatory, and indicated that federal appellate courts should review sentences for "reasonableness." The new cases are all about where to put the thumb on the scale in that review. Claiborne asks: (1) Was the district court's choice of below-Guidelines sentence reasonable? (2) In making that determination, is it consistent with [Booker] to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances? Rita asks similar questions from the opposite direction: (1) Was the district court's choice of within-Guidelines sentence reasonable? (2) In making that determination, is it consistent with [Booker] to accord a presumption of reasonableness to within-Guidelines sentences? (3) If so, can that presumption justify a sentence imposed without an explicit analysis of the district court of the 18 U.S.C. § 3553(a) factors and any other factors that might justify a lesser sentence?
And yesterday's order list invited the SG to weigh in on the petition in Riegel v. Medtronic, Inc. (06-179), which asks "whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360k(a), preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the Food and Drug Administration."
That's it so far this week. 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