Author: Kristina Moore

The Court released a statement this afternoon that Justice Ruth Bader Ginsburg had surgery for early-stage pancreatic cancer and will likely remain at Sloan-Kettering Cancer Center in New York City for 7-10 days. The text of the Court's statement can be read after the jump.

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court this week. If any orders are issued in pending cases, we will post them promptly. No merits briefs are due this week....

No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. The Court is in a four-week recess. Oral arguments resume on February 23....

Today the Court also issued  a per curiam opinion in Nelson v. US, on sentencing guidelines. The ruling below, which held for the United States, is reversed and remanded. The opinion can be found here. Justice Breyer concurred in the judgment, joined by Justice Alito. A...

No oral arguments are scheduled at the Court this week.  Oral arguments will resume February 23. On Monday, the Court will release the  orders from the Justices’ private conference last Friday. Merits briefs for the petitioners are due Monday in Travelers Indemnity v. Bailey (08-295) and Common...

At 1 p.m. today, the Court will hear argument in Harbison v. Bell (07-8521), involving the right of prisoners to have federally funded counsel during state clemency proceedings. Dana Hasen of the Knoxville, Tenn., defender's office will argue for the petitioner, and William Jay of the Solicitor General's office will argue as amicus curiae in support of the judgment below. In Harbison v. Bell, the Court will consider two questions:  (1) whether 18 U.S.C. § 3599 permits federally funded habeas counsel to represent a condemned inmate in state clemency proceedings; and (2) whether a district court's denial of a request for federally funded clemency counsel may be appealed even without a certificate of appealability (COA). Background 18 U.S.C. § 3599 provides indigent capital defendants with counsel in post conviction proceedings and insures that "unless replaced by a similarly qualified counsel upon the attorney or defendant's own motion...each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings." The statute was originally enacted as part of the Anti-Drug Abuse Act of 1988, which made drug-related homicides a federal capital offense and specified sentencing procedures.  Congress also included an appropriation for indigent criminal defense and authorized federal courts to appoint counsel for unrepresented defendants in death-penalty-related proceedings. The Terrorist Death Penalty Enhancement Act of 2005, part of the PATRIOT Improvement and Reauthorization Act, recodified this provision without change in Section 3599. Harbison's execution comes to the Court after more than twenty years of seeking reprieve from the death penalty in both state and federal appeals. Harbison, an African-American man with no criminal history prior to this incident, has been on death row since 1985, when he was convicted of first-degree murder, second-degree burglary, and grand larceny for the 1983 murder of Edith Russell, a sixty-two-year-old white woman.  Police located property from Russell's apartment in the residence of Harbison's girlfriend, and they found fragments - containing traces of blood - in Harbison's car that were consistent with a marble vase missing from Russell's apartment. In a taped statement made while in custody, Harbison confessed to killing Russell when she returned home as the burglary was in progress. Believing that she had a gun, Harbison claimed to have struck her on the head "at the most" two times with the marble vase. But during his trial in Tennessee state court, Harbison testified that police coerced his confession by threatening to arrest his girlfriend and take her children away, and that the tape had in any event been altered. He testified that he had not killed Russell or even been at the scene of the murder. Harbison was convicted and sentenced to death; the only defense witness in the penalty phase was his mother, who offered just forty-seven lines of testimony.

On Wednesday, the Court heard argument in Crawford v. Metropolitan Government of Nashville (06-1595), and while it remains to be seen whether the justices will decide only the question presented or will instead generally broaden the anti-retaliation statute, their comments and questions pointed toward a strong ruling in favor of employee protection. Argument for petitioner Vicky S. Crawford, a former employee of the Nashville school system, was divided between her counsel, University of Washington law professor Eric Schnapper, and Lisa Blatt, an Assistant to the Solicitor General who argued on behalf of the United States as amicus curiae. Petitioner's argument revolved around two points: whether her conduct — cooperating with an internal sexual harassment investigation against a superior — constituted "opposition" protected by the first clause of Section 704(a) of Title VII; and whether the investigation in this situation can be defined as a Title VII investigation protected by the participation clause. Of the three provisions of the opposition clause, Crawford's claim limits itself to the question that her conduct was in the nature of opposition. Represented by Assistant Metropolitan Attorney for Nashville, Francis H. Young, the respondent Metropolitan Government of Nashville and Davidson County contends that cooperating with a sexual harassment investigation should not be protected by either the opposition or the protection clause. The Metropolitan Government's view is that the active definition of "oppose" — to react against a specific action — is the only one covered under the opposition clause; however, if Crawford had later brought a sexual harassment claim, this would "retroactively imbue the initial disclosure with an opposition quality," Young said. Justice Stevens vigorously argued with Young that Crawford's actions did count as opposition, emphasizing her statement "Get the hell out of my office," which provoked laughter on the Court. Across the board, the Court seemed to agree that such a strict standard was preposterous based on the facts of this case-in which Crawford had articulated her victimization by the individual under investigation and expressed her strong disapproval of his behavior during the investigation, but had never brought a formal claim against him. (As Blatt reiterated, Crawford would not have had a cause of action for discrimination because she had not complained to the EEOC under the required time frame.) But the justices continued to push Schnapper and Blatt to define the limits of their proposition.