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This post was jointly authored with Danielle Goldstein [disclosure: Danielle assisted with the preparation of an amicus brief for the government of Mexico in support of petitioner] Monday’s second case, Medellin v. Dretke, No. 04-5928, involves a little bit of everything – capital habeas proceedings, the International Court of Justice, treaty enforceability, executive authority, and even an overtone of federalism. Because the questions the Court will address are so intimately entwined with the procedural history of the case, a short overview is necessary before summarizing those questions and the parties’ (and government’s) arguments. Medellin is a Mexican national who was convicted of murder and sentenced to death in a Texas court. Texas never notified Medellin that Article 36 of the Vienna Convention on Consular Relations (to which the U.S. is a party) entitled him to legal assistance from the Mexican consul, and the Mexican consular authorities were not made aware of his arrest, trial, or sentence until six weeks after his death sentence was affirmed by the Texas Court of Criminal Appeals. Medellin brought first a state and then a federal habeas petition arguing that Texas had violated his rights under Article 36 of the Vienna Convention. Both courts denied the petitions, finding (1) Texas’s “contemporaneous objection” rule prevented Medellin from raising a Vienna Convention claim on collateral review since he did not assert it at trial, and (2) that in any event Medellin could not sue for a violation of the Vienna Convention, since it did not create any private, judicially enforceable rights.

On Tuesday, March 29, the Supreme Court will hear arguments in what could be one of the most important copyright cases of the last two decades: Metro-Goldwyn-Mayer Studios Inc. v. Grokster, No. 04-480, a case on appeal from the Ninth Circuit. The question presented (slightly rephrased from the official version) is:

Whether the Internet-based "file sharing" services Grokster and StreamCast are contributorily or vicariously liable for the massive copyright infringement that constitutes roughly 90% of the total use of their services.

The Ninth Circuit's decision can be found here (380 F.3d 1154 (9th Cir. 2004)). The district court decision is here (259 F.Supp.2d 1029 (C.D.Cal. 2003)). An incredible number of briefs and other documents associated with this case can be found here, with a helpful summary of their arguments provided here by Jonathan Band of Morrison & Foerster. (Marty previously noted these resources in an earlier post.) These briefs present a bewildering number of claims: the Christian Coalition, for instance, points out that file-sharing networks allow pedophiles to swap child porn (though it's not clear why the software creators are responsible for this). Donald B. Verrilli, Jr., of Jenner & Block will argue for petitioners MGM and other content owners; he will be joined by Acting Solicitor General Paul D. Clement, who will argue on behalf of the United States for petitioners. Richard G. Taranto of Farr & Taranto will argue for respondents Grokster and Streamcast Networks. A longer description of the case follows.

Today’s first case, Tory v. Cochran, No. 03-1488, involves an appeal brought by an ex-client of superstar attorney Johnnie Cochran. The client challenges the constitutionality of a permanent injunction that forever prohibits him from “orally uttering statements about Cochran [or] Cochran’s law firm.” Erwin Chemerinsky will argue the case for the petitioner, Ulysses Tory, whose brief is available here. Jonathan B. Cole will argue the case for the respondent, Johnnie Cochran, whose brief is available here. Check out the following link for extended coverage of one of this Term’s more amusing cases.

The battle between Congress and the states over the Religion Clauses continues this Monday, when the Court will hear argument on the constitutionality of a statute imposing on states basically the same strict scrutiny test imposed by the Religious Freedom Restoration Act of 1993 – which the Court struck down in City of Boerne v. Flores in 1997. The new statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), applies to a much narrower set of circumstances (institutionalized persons and land use laws, the latter of which are not at issue here) than did the all-encompassing RFRA. More importantly, RLUIPA does not rely on Section 5 of the Fourteenth Amendment to supply Congress with the affirmative power to enact it, but on the Spending and Commerce Clauses. Petitioners are a group of prison inmates practicing various “non-mainstream” religions (Wicca, Satanism, Asatru, and the Church of Jesus Christ Christian) who sued the Ohio Department of Rehabilitation and Correction for restricting their ability to practice their religions. The question presented is “[w]hether Congress violated the Establishment Clause by enacting the [RLUIPA], which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control.” Professor David Goldberger of The Ohio State University College of Law is arguing for petitioners, and Acting Solicitor General Paul Clement has also been granted time for argument for the United States, which intervened in support of petitioners. Ohio State Solicitor Douglas R. Cole will argue for respondents.

On Monday, the Supreme Court will hear arguments in Town of Castle Rock, CO v. Gonzales, No. 04-278, a case on appeal from a deeply divided Tenth Circuit en banc decision. The case presents two questions (rephrased here from the more cumbersome questions on the Supreme Court's site):

1. Whether the Fourteenth Amendment provides a procedural due process claim against a local government for its failure to protect the holder of a partial restraining order from private violence, even though this Court has already rejected a similar substantive due process claim in DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189 (1989). 2. If so, what kind of process is due for police inaction with respect to a partial restraining order?

The Tenth Circuit's panel decision is available here. The en banc decision is here (you have to scroll down a little bit). John Eastman of Chapman University's law school will argue for petitioner Castle Rock, while John Elwood, an Assistant to the Solicitor General, will argue on behalf of the United States in support of the petitioner. Brian J. Reichel of Broomfield, CO, will argue for respondent Jessica Gonzales. A longer description of the case follows.

Yesterday, the government (as Marty had predicted) lost the consolidated cases Ballard v. Commissioner, No. 03-184, and Kanter v. Commissioner, No. 03-1034. The cases presented the question whether the Tax Court may keep secret the initial reports of its Special Trial Judges (STJs). Justice Ginsburg, writing for the majority, focused not on whether the practice of keeping the STJ report secret comports with the Due Process Clause (a claim that Ballard and Kanter had stressed), but instead on the consistency of the Tax Court’s process with its own Rules. Justice Kennedy, joined by Justice Scalia concurred. [Chief] Justice Rehnquist, joined by Justice Thomas, dissented, disagreeing both with the majority’s reading of the Rules, and with its decision even to take up the issue of the consistency of the Tax Court’s practice with its Rules. You can read more about the background of the case, its procedural posture and the parties' arguments in my earlier post here.

On Wednesday, the Court, in a ten-page unanimous decision authored by Chief Justice Rehnquist, rejected the claims of two alleged former spies who challenged CIA procedures. The Does are former Eastern Bloc diplomats who claim that, when they decided to defect, they were coerced into spying for the CIA. In return, they claim, they were promised lifetime support in the United States -- a promise the CIA did not fulfill. The government does not dispute this; rather, the dispute centered on whether the Does' claims could be heard at all. The Does’ central claim was that the CIA’s agency procedures and failure to provide support violated their substantive and procedural due process rights. The government argued that the claims should be dismissed on the basis of a Civil-War-era case, Totten v. United States, in which the Court held that a Civil War spy could not sue the government for a breach of the contract under which he spied. Totten, the government argued, presents a categorical bar to the claims here. The government also argued that the same concerns that underlie Totten – security and secrecy – are paramount today. (More on the parties’ arguments, the procedural history and the factual background can be found in my original post on the case, here.) The Ninth Circuit found that the Does could proceed on their Due Process claims; on Wednesday, the Court disagreed.

Tuesday, in the consolidated argument of Exxon Corp. v. Allapattah Services, Inc. and Ortega v. Star-Kist Foods, Inc., the Court will take another swing at deciding whether 28 U.S.C. § 1367 (the supplemental jurisdiction statute) allows a federal court with diversity jurisdiction over a claim exceeding the jurisdictional amount to exercise supplemental jurisdiction over related claims that do not. The circuits are deeply divided over the issue, and the Supreme Court whiffed on its prior attempt to resolve it, dividing equally (and affirming without opinion) in the 2000 case of Free v. Abbott Laboratories. The consolidated cases present two different (and possibly relevant) contexts. In Exxon Corp., a putative class alleges that Exxon breached its dealers’ agreement. The Court is asked to decide whether each class member must individually satisfy the amount-in-controversy. In Ortega, a child injured while opening a can of tuna seeks to join her claims for physical and emotional injuries with her family’s claims for emotional damages and medical expenses. The Court must answer the same question in the context of normal joinder. Although the First Circuit in Ortega suggested that the distinction between class actions and normal joinder might be relevant, other circuits disagree. At the very least, the consolidated cases will provide the Court with two more pitches with which to get a hit on the supplemental jurisdiction question. Hopefully, the Court will connect on at least one of these swings; otherwise, there will be no joy in civil procedure-ville for the mighty Supreme Court will have struck out.

The Court on Tuesday announced its decision in Smith v. Massachusetts, vacating a state conviction on Double Jeopardy grounds where the judge reversed a midtrial ruling of insufficiency of the evidence on one count. The case turned on the relatively narrow issue of whether a state rule allowing that ruling is framed to give rise to a reasonable expectation of finality; the majority expressly noted that states could ensure a different outcome simply by expressly “rendering midtrial acquittals nonfinal.” The 5-4 decision also marked the first time that Justices Stevens, Scalia, O’Connor, Souter, and Thomas have formed a five-justice majority. (Thanks to Eugene Volokh of The Volokh Conspiracy and Anton Metlitsky for pointing this out.)

As Tom previously noted, we filed a brief in opposition to certiorari today in No. 04-856, City of Evanston v. Franklin. The case arises against the backdrop of a series of Supreme Court cases – including Garrity v. New Jersey (1967), Gardner v. Broderick (1968), and Lefkowitz v. Cunningham (1977) – which established that (1) a government employer can compel its employees to answer questions relating to the performance of their official duties, but that (2) the Fifth Amendment prohibits the government from using those answers against the employee in future criminal proceedings. Respondent Franklin, an employee of the City of Evanston, Illinois, was arrested for possession of drugs while off duty. He was questioned about the episode and the charges by his boss, at a pre-termination disciplinary hearing, and at a grievance hearing. Franklin refused to answer the questions because of the pending criminal charges (which were later dropped). When he was fired, Franklin brought suit against the city for, inter alia, violating his right to due process.