Order List

October 6, 2009 Supreme Court Update

Greetings, Court fans!
Today marks the first official day of the October 2009 Term. It is also the formal beginning of Justice Sotomayor's first Term on the Court (though she participated in a hearing on a hold-over campaign finance case last month). She proved herself an aggressive questioner, asking more questions today than some Justices do in months, or even Terms! If today is any indication, this should be an interesting Term.
As in past Terms, when the Court issues an order or opinion, I will send an e-mail summarizing the highlights as a way for readers to follow the Court with a minimal investment of time. Hopefully, you will continue to find these Updates to be a user-friendly and enjoyable way to keep up with the Court.
The Court preceded its official return with 10 cert grants last week (12 if you count combined cases). Here are the questions presented:
Lewis et al. v. City of Chicago (08-974), which asks: "Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer's use of the discriminatory practice?"
Carr v. United States (08-1301), where the Court will consider (1) whether a person may be criminally prosecuted under the Sex Offender Registration and Notification Act ("SONRA") for failure to register when the defendant's underlying offense and travel in interstate commerce both predated the SONRA's enactment, and (2) whether such prosecution is precluded by the Ex Post Facto Clause.
Astrue v. Ratliff (08-1322), which presents the following question: "Whether an ‘award of fees and other expenses' under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is payable to the ‘prevailing party' rather than to the prevailing party's attorney, and therefore is subject to an offset for a pre-existing debt owed by the prevailing party to the United States."
Berghuis v. Smith (08-1402), which addresses the Sixth Amendment requirement that the jury be drawn from a fair cross-section of the community. Specifically, the case asks whether the "Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply ‘clearly established' Supreme Court precedent under 28 U.S.C. § 2254 on the issue of the fair cross-section requirement . . . where the Sixth Circuit adopted the comparative disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires), which this Court has never applied and which four other circuits have specifically rejected."
Berghuis, Warden v. Thompkins (08-1470), which presents two questions for review: "(1) Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them. (2) Whether the Court of Appeals failed to accord the State court the deference it was entitled to under 28 U.S.C. § 2254(d), when it granted habeas relief with respect to an ineffective assistance of counsel claim where the substantial evidence of Thompkin's guilt allowed the State court to reasonably reject the claim."
Humanitarian Law Project v. Holder (09-89) and Holder v. Humanitarian Law Project (08-1498), which respectively ask: (1) "Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of ‘expert advice or assistance' ‘derived from scientific [or] technical … knowledge' and ‘personnel' are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations;" and (2) "Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of ‘any *** service, *** training, [or] expert advice or assistance,' to a designated foreign terrorist organization, is unconstitutionally vague."
McDonald v. City of Chicago (08-1521), presents this (short, but incredibly important) question for review: "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."
Migliaccio v. Castaneda (08-1529) and Henneford v. Castaneda (08-1547) ask the Court to decide whether 42 U.S.C. § 233(a) makes the Federal Tort Claims Act the exclusive remedy for claims arising from medical care and related functions provided by Public Health Service personnel, thus barring Bivens actions.
Samantar v. Yousuf (08-1555), which presents two issues for review: "(1) Whether a foreign state's immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state;" and (2) "Whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual's former capacity as an official acting on behalf of a foreign state."
United States v. O'Brien (08-1569), which asks whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) "to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence."
Today's order list was a bit of a snooze by contrast, with the Court denying cert in hundreds of cases, granting cert in no additional cases, and asking the SG to weigh in on just four:
Williamson v. Mazda Motor of America (08-1314), which addresses whether federal law preempts suits against auto makers for faulty seat belt installation.
Costco Wholesale Corporation v. Omega, S.A. (08-1423), involving the breadth of the "first sale" doctrine in copyright law where goods were sold by Omega to foreign dealers, who imported the goods into the US and then sold them to Costco.
Missouri Gas Energy v. Schmidt (08-1458), testing a state's authority to tax natural gas stored temporarily in the state in interstate pipelines.

Golden Gate Restaurant Association v. San Fransisco (08-1515), which addresses the power of states and local governments to require employers to provide minimum payments for health care coverage for their employees or face penalties. (Sound familiar?)
In a very unusual move, the Court also asked the SG of Texas to provide its views in Rhine v. Deaton (08-1596), a case raising due process and equal protection challenges to a Texas statute that provides state-funded counsel to individuals facing termination of their parental rights in proceedings initiated by the State, but not those initiated by private parties.
That's all for tonight. I look forward to following the Term with you.
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400