Order List

April 27, 2004 Supreme Court Update

Greetings Court fans!
A smattering of miscellaneous items tonight, all from Court actions on Monday: cert granted in two tax cases, two opinions generated by a cert denial, and the release of revisions to the criminal procedure and bankruptcy rules. Of course, in much more interesting news, the Court is hearing some great arguments this week -- today they heard the Cheney-energy-policy-task-force case, and tomorrow (last argument day of the Term!) they hear arguments in two of the terrorism cases. (On a personal note, a friend of mine is arguing the Padilla case tomorrow on behalf of Padilla. I know she won't be reading this before the argument, but best of luck, Jenny! I'm cheering for you!)
Ok, back to more mundane items:
1. The Court granted cert in two tax cases and consolidated them for argument: Ballard v. Commissioner (03-184) and Estate of Kanter v. Commissioner (03-1034). These cases challenge the tax court's use of findings by "special trial judges," whose opinions are not made available to the parties. The questions presented are as follows: (1) Is the process, under which the trial was conducted by a special trial judge, with the report of factual and legal findings not made available to the parties, the public or the reviewing court consistent with due process clause or the right to effective Article III review? (2) Is the process consistent with 26 USC 7482, which provides that Article III courts must review tax court decisions just as they would decisions of US district courts? (3) Does the due process clause or governing federal law require that court of appeals be able to review tax court decisions on the basis of a complete record, including trial judge's findings of fact that, by law, tax court must presume to be correct? (4) Does tax court rule 183 require judges of the tax court to uphold findings of fact and credibility judgments made by their trial judges unless those findings are "clearly erroneous," as the DC Circuit has held or are those findings and credibility judgments entitled to no deference at all, as the Seventh Circuit held?
2. In Bunting v. Mellen (03-863), the Court's denial of cert generated a dissent from denial of cert and an opinion "respecting" that denial. First, Justice Scalia (joined by the Chief) dissented from the denial of cert. This case began as a constitutional challenge to the Virginia Military Institute's practice of praying before dinner. (The prayer was voluntary, but nonparticipating cadets had to remain "at rest" during the prayer.) The Fourth Circuit held that this practice was unconstitutional, in apparent conflict with holdings from two other circuits. Despite this holding, the former superintendent of VMI won below because the Fourth Circuit held that he had qualified immunity for his actions. The Fourth Circuit's mode of analysis (first decide whether the challenged act is unconstitutional and then ask whether the official is entitled to qualified immunity) is the standard -- and expected -- mode in qualified immunity cases. In this case, however, this mode creates a dilemma: The government official (VMI superintendent) "won" below because judgment was entered in his favor, but he lost on the constitutional question. But because he won below, as a matter of longstanding practice, the Court will not grant his cert petition to review the constitutional question -- the really important issue in the case and an issue that has divided the circuits. Scalia believes that this rule of practice should be relaxed in cases where a favorable judgment on qualified-immunity grounds would deprive a party of an opportunity to appeal the unfavorable constitutional determination. He would grant cert here to make exactly that point (among others). Justice Stevens (joined by Ginsburg and Breyer) penned an opinion "respecting the denial of cert" to respond to Scalia. He would resolve the dilemma identified by Scalia by relaxing the rule that requires courts to decide constitutional questions first in qualified immunity cases, and thus does not believe that this rule is the sole reason the Court denied cert. Stevens proceeds to identify two other reasons for denying cert in this case: (1) The Court lacks jurisdiction because there is no longer a live controversy in the case. (The former superintendent retired and thus no longer has a stake in the issue.) (2) There is no direct conflict in the lower courts.
3. Finally, I note that the Court submitted to Congress amendments to the bankruptcy procedure and criminal procedure rules. These amendments will be effective December 1 of this year. The bankruptcy procedure amendments are to bankruptcy rules 1011, 2002 and 9014. The criminal procedure rules amend Rule 35 and the rules governing habeas cases. That's all the information you get from me tonight. Usually, the Court's orders on rule amendments provide some commentary on what the amendments actually do, but these rule announcements are silent. Without comparing the current order to the current set of rules, I just have no idea what these amendments do. And it's just too late at night to begin poring over bankruptcy rules. If you're really fascinated, let me know. Hearing no requests tonight, I'll just say goodnight. That's all until tomorrow when the Court will likely issue opinions. Thanks for reading!

From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at www.wiggin.com.