Winter v. NRDC (07-1239) and order list

November 18, 2008 Supreme Court Update

Greetings, Court Fans!
This Term the race to author the first opinion (and historically it has been a race, with former Justice O'Connor always vying for the win) turned into a short sprint, as the Chief took the crown last week with his five-Justice majority in Winter v. NRDC (07-1239), vacating the Ninth Circuit's preliminary injunction barring sonar tests by the U.S. Navy in the waters off southern California. The NRDC argued that the sonar being tested harmed marine life, and the lower courts imposed an injunction that, among other things, required the Navy to shut down the test if a marine mammal was spotted within 2200 yards of a ship and to power down the sonar under certain other conditions. The Chief's opinion began by noting that the Ninth Circuit had used the wrong standard of review – requiring only a showing of the "possibility," as opposed to the "likelihood," of irreparable injury necessitating the injunction. It also canvassed the record to find that while military interests do not always trump other considerations, here the Navy's strong interest in conducting realistic antisubmarine warfare training exercises clearly tipped the scales in the Navy's favor. Under these circumstances, the injunction's conditions were an abuse of discretion, expanding the Navy's shutdown zone by a factor of 100 and limiting the Navy's ability to train for important contingencies. In particular, the plaintiffs' ultimate claim was that the Navy needed to prepare an environmental impact statement ("EIS") before testing, and these conditions had little to do, remedially, with an EIS. Given the security importance of the tests, the Court vacated the injunction.
Justice Breyer, joined by Justice Stevens, partially concurred, agreeing that the evidence supporting the lower courts' conditions was weak. Breyer (alone), however, would have remanded for the district court to set forth mitigation conditions based on the Navy's past voluntary limitations on its tests. Justices Ginsburg and Souter dissented; they would have held that the lower courts properly balanced the equities given the Navy's failure to complete an EIS.
On other matters, the death penalty continues to provide the Justices with opportunities to issue statements on cert denials, with Stevens and Breyer each writing following the denial of cert in Kelly v. California (07-11073) and Zamudio v. California (07-11425). These cases involved the use of victim impact evidence during the penalty phase of capital trials, with defendants challenging the use of photo and video montages before the juries that sentenced them to death. The Court had categorically barred the use of such evidence in Booth v. Maryland (1987), but later overruled that decision in Payne v. Tennessee (1991), making impact evidence admissible subject only to the limits of due process. Stevens, a Payne dissenter, wrote to support the Booth rule and to argue that, having provided minimal guidance regarding the admissibility of this evidence, the Court had a duty in these cases at least to consider the limits of its use. Echoing these sentiments, Breyer wrote that the Court should review the problem of "disproportionately powerful emotion" infecting sentencing decisions.
Finally, a note for criminal practitioners: In a one-sentence order issued today, the Court has dismissed as improvidently granted the writ of cert in Bell v. Kelly (07-1223), which would have considered whether federal habeas provisions governing claims adjudicated in state court should be applied to ineffective assistance claims that the state court refused to consider.
That's all for now, as the Court has gone on recess for a few weeks. Until next time, thanks for reading!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400