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Author: John Elwood

By on Nov 16, 2011 at 1:45 pm
Putting aside Monday’s fireworks on the health care front, this week’s order list was relatively quiet.  The Court did grant cert. in the survivor benefits case Astrue v. Capato, 11-159, relisted after the November 4 Conference and discussed last week.  And after taking an extra week to mull over a late-filed supplemental brief, the Court doled out a GVR in the once-relisted Branch Banking and Trust v. Gordon, 11-282, in light of the Court’s decision last Term in AT&T Mobility Corp. v. Concepcion, 09-893.

By on Nov 10, 2011 at 3:13 pm
John Elwood reviews Monday’s relisted and held cases. The dam finally broke for many of the cases that have been lingering among the relists for weeks on end.  After a total of five relists, the Court summarily reversed in Bobby v. Dixon, 10-1540, agreeing with the Ohio Solicitor General that the Sixth Circuit had been insufficiently deferential to the Ohio Supreme Court in reviewing Archie Dixon’s murder conviction; we previewed that case here.  And after a total of five relists (four since the Court called for a response), the Court saw fit to grant the petitions in Miller v. Alabama, 10-9646 and Jackson v. Hobbs, 10-9647.  Those cases both raise the question whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder violates the Eighth Amendment.  Good news as well for the petitioner in Magner v. Gallagher, 10-1032, involving whether disparate impact claims are cognizable under the Fair Housing Act, which also had been relisted five times (four since the Court called for a response).   But the Court denied cert. in two relisted capital cases:  Williams v. Roper, 11-5005, a habeas case that had been relisted twice, and Buck v. Thaler, 11-6391, a case involving the consideration of race at sentencing that had been relisted four times.  As noted here, the Court’s denial of cert. in Buck prompted opinions from Justice Sotomayor and Justice Alito. 

By on Nov 1, 2011 at 11:48 am
John Elwood reviews Monday’s relisted and held cases. The Court had very little in the way of treats for petitioners on Monday’s order list, which contained no new grants or CVSGs.  As (sorta) anticipated in last week’s update, the Court finally issued a summary reversal in Cavazos v. Smith, 10-1115, which had been relisted a whopping eleven times beginning on May 12, 2011.  In a six-to-three per curiam opinion, the Court reversed (for the third time) the Ninth Circuit’s grant of habeas relief in a case involving contested expert evidence in a prosecution resulting from a newborn’s death attributed to “shaken baby syndrome.”  The Ninth Circuit concluded there was “no evidence to permit an expert conclusion one way or the other,” but the Court held that the Ninth Circuit’s decision was “plainly wrong” under Jackson v. Virginia.  Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented; she described the summary reversal as “a misuse of discretion,” saying that the Court’s time-intensive “error correction” in this case achieved nothing “other than to prolong Smith’s suffering and her separation from her family” by returning her to prison.

By on Oct 20, 2011 at 9:18 pm
John Elwood reviews Monday’s relisted and held cases. I mentioned at the end of last week’s relist (and hold) watch that my next post would likely be delayed because of a (still ongoing) trial in Madison, Wisconsin.  Turns out I’m not the only one doing things a little slow, as the powers that be over at One First Street are taking their time updating the docket.  They’re likely in no hurry because the Court won’t be holding its next Conference until October 28. In any event, in keeping with the recent trend, most of last week’s relists appear to be back for another relist this week.  And surely it is time for an opinion of some sort in Cavazos v. Smith, 10-1115, the state petition in the habeas case out of the Ninth Circuit that has now been relisted eleven times.  There are a few notable exceptions.  All the talk on cable news may be about “9-9-9,” but in the nerdosphere, it’s all “2-2-2”—the 222-year-old Alien Tort Statute, that is.  (Pause for laughter that will never come.)  After two relists, the third time at Conference proved to be the charm for Kiobel v. Royal Dutch Petroleum, 10-1491, in which the Court will consider whether an alien claimant can sue a U.S. corporation under the Statute, and for the related case Mohamad v. Rajoub, 10-88, involving the Torture Victim Protection Act of 1991.  More from Kevin Russell about those grants here.  We assume (but do not know) that Bowoto v. Chevron Corp., 10-1536 (also on its second relist) is now being held for Kiobel.  Also good news for the petitioner in Elgin v. Department of Treasury, 11-45, which was relisted after the October 7 Conference.  More on that grant can be found here.

By on Oct 12, 2011 at 10:45 am
John Elwood reviews Tuesday’s relisted and held cases. If you are one of the two people who read last week’s installment, you are already about ninety percent up to speed on this week’s relists and you can stop reading now.  With a few exceptions, all of last week’s relists have been relisted once again. The happiest exception (at least for Alex Blueford) is Blueford v. Arkansas, 10-1320, which presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense; the Court granted in that case.  (And the Court now appears to be holding Harrison v. Gillespie, 11-168, for Blueford.)  Also happy news for Acting Warden Brenda Cash in Cash v. Maxwell, 10-1548, the petition alleging the Ninth Circuit gave insufficient deference to the state court under the Antiterrorism and Effective Death Penalty Act (“AEDPA”); the Court not only relisted again, but it also called for the record, suggesting that this case is now a more serious candidate for the state’s requested relief of summary reversal.

By on Oct 5, 2011 at 7:53 pm
John Elwood reviews the cases relisted after the Long Conference. The Court is taking a second look at several important cases after the “Long Conference” — the sort of cases that chuckleheads have in mind when they spout obviousisms like “[t]his could be a blockbuster term, depending on how events break.”   For starters, the Court has relisted two petitions involving an Establishment Clause challenge to roadside crosses memorializing fallen state troopers, Utah Highway Patrol Ass’n v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297, which in many ways are follow-ons to OT2009’s plurality opinion in Salazar v. Buono (involving a cross used as a war memorial), and which together must set some kind of record for amicus participation at the cert. stage.  The Court also relisted in two cases presenting the question whether imposing a sentence of life without parole on an underage offender convicted of murder violates the Eighth Amendment’s Cruel and Unusual Punishments Clause, which are follow-ons to OT2009’s Graham v. Florida (which held that the Eighth Amendment prohibited such sentences for nonhomicide offenses).  Those two cases are the consecutively numbered Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647. As long as we’re talking about constitutional criminal procedure, Blueford v. Arkansas, 10-1320, presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense.  I haven’t been able to track down the briefs yet, but Sun v. United States, 10-9333, apparently presents the question whether judges of the District Court for the Northern Mariana Islands are able to hear criminal cases arising under the laws of the United States, because its judges do not enjoy the protections of Article III of the Constitution.  This is a sequel to 2003’s Nguyen v. United States, which held that judges of the U.S. District Court for the District of Guam lacked statutory authority to sit by designation on the court of appeals because they lack Article III tenure.   Buck v. Thaler, 11-6391, is a capital case in which the Court has granted a stay, which will dissolve if the Court denies cert.; the petition primarily presents questions about whether the petitioner’s race played an impermissible role in the sentencing phase of his capital murder trial.  And it is hard to ferret out information on in forma pauperis cases quickly, but Pacheco-Garcia v. United States, 10-9445, Guerrero-Campos v. United States, 10-9746, and Wesevich v. United States, 10-10340, all appear to involve the third prong of plain error review (establishing prejudice) in the context of Guidelines sentencing.

By on Sep 20, 2011 at 12:00 pm
The following contribution to our arbitration symposium is by John Elwood. Mr. Elwood is a partner at Vinson & Elkins in Washington, D.C., specializing in appellate litigation and administrative law, and also teaches the University of Virginia School of Law's Supreme Court litigation clinic. He served as senior deputy in the Justice Department’s Office of Legal Counsel from 2005 until 2009 and served as an assistant to the Solicitor General from 2002 until 2005. -- In recent years, arbitration has been one of the Supreme Court’s “evergreen” subjects; the Court always seems to have an arbitration case or two on its docket.  The perennial presence of such cases during the last decade reflects both the importance of the subject and the prevalence of such cases in the lower courts, where the volume of arbitration-related litigation has spawned a stream of cases for High Court review.  But although the Court devotes particular attention to arbitration, there remains one question it has failed to resolve for several years: the status of “manifest disregard” doctrine in the wake of the Court’s decision in Hall Street Associates, L.L.C. v. Mattel, Inc. (2008).