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Conference Call summarizes the roughly 15 percent of all non-pauper petitions that are the most likely candidates for certiorari. The Supreme Court’s jurisdiction is almost entirely discretionary, and justices in recent years have annually selected roughly 80 petitions from the approximately 7,500 that are filed. Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed.
For the past several years, the war against the “War on Christmas” has been waged not only on the airwaves and in the press, but also in the courts. In 2002 the Thomas More Law Center, a Christian rights group, fired one of the early salvos in the war at the New York City school system and its holiday-display policy in the form of a complaint filed in the Eastern District in New York. Although Thomas More lost the early skirmishes — with both the district court and the 2nd Circuit denying relief — it now hopes to take the battle to the Supreme Court, which will consider the petition in Skoros v. City of New York (No. 06-271) at its private conference on Nov. 21. Petitioner Andrea Skoros is a Roman Catholic who lives in New York City and is the mother of two children enrolled in the city’s public elementary schools. Pursuant to school policy, in 2001 and 2002 the schools that Skoros’ children attended were decorated for the holidays with stars and crescents, menorahs, and Christmas trees. Objecting to the absence of any depictions of the Christian nativity scene, which are prohibited by school policy, Skoros filed a complaint in which she contended that the policy “impermissibly promoted and endorsed the religions of Judaism and Islam, conveyed the impermissible message of disapproval of Christianity, and coerced students to accept the Jewish and Islamic religions in violation of the Establishment Clause of the First Amendment.” She asked the court to enjoin the school board from implementing its policy. The district court denied all relief, and Skoros appealed. The 2nd Circuit applied the three-part test first outlined in Lemon v. Kurtzman (1971) and concluded that the policy did not violate the establishment clause. The Lemon test asks whether a policy (1) has a valid secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) avoids excessive state entanglement with religion. The court of appeals regarded the policy as having a secular purpose, largely satisfying itself with the Department of Education’s statement that the policy was intended “to foster mutual understanding and respect for the many beliefs and customs stemming from [the New York] community’s religious, racial, ethnic and cultural heritage.” The court also rejected with relative ease any claim that the policy entangled the state with religion. In applying the Lemon “effect” prong, the court concluded that the relevant question was, under the formulation famously proposed by then-Justice Sandra Day O’Connor in her concurring opinion in Lynch v. Donnelly (1984), whether the policy would appear to an objective observer to endorse any religion. In petitioning for certiorari, Skoros — represented by Robert Muise, an attorney at the Thomas More Center — advances two essential points. The first is that the 2nd Circuit’s description of the policy as an even-handed effort to achieve balance in the celebration of the winter holidays and to use those holidays as an educational opportunity is a mischaracterization. Instead, Skoros asserts, the city’s decision to forbid cr�ches while permitting other religious symbols exhibits a denominational preference for Judaism and Islam and outright hostility to Christianity. The petition declares that “there is no affirmative action prong of the Establishment Clause” and that “our Constitution demands tolerance of all religions, including Christianity.” The petition also argues that the endorsement test is simply unworkable, and — a more subtle doctrinal point — that the 2nd Circuit ought to have given greater consideration to the fact that the audience for the displays consisted of children. In opposition, the city — represented by Leonard Koerner — argues primarily that its decision to exclude the cr�che from the holiday displays was a reasonable way for it to avoid violating the establishment clause. On the one hand, the case could present the relatively narrow question whether, under the Lemon test, the apparent purpose and the likely effect of a particular policy should be measured according to the standard of an average reasonable observer or must instead be a more finely tuned analysis keyed to the sensitivities of an elementary school student. More broadly, however, the Court could grant review either to settle the uncertainty over the role of the endorsement test in establishment clause law or to fully reconsider the vitality of the Lemon test. The departure of Justice O’Connor, long the wild-card justice in the development of the Court’s religion-clause jurisprudence, has left rights litigators and school board members across the country waiting with bated breath for the next pronouncement from the Court. — Christopher Egleson
OTHER CASES UP FOR REVIEW INCLUDE • 05-1367, Illinois v. Sloup (App. Ct. of Ill.) Whether the Fourth Amendment requires a police officer, during a lawful traffic stop, to have reasonable suspicion that contraband is present before asking the motorist questions related to contraband. • 06-26, Angelos v. United States (CA10) Whether the U.S. Supreme Court’s summary disposition in Hutto v. Davis stands as a precedential bar to a lower court otherwise concluding that a sentence violates the Eighth Amendment’s ban on cruel and unusual punishment under the Solem-Harmelin analysis articulated after Davis. • 06-71, Dantone Inc. v. United States (CA3) Whether the bank fraud statute, 18 U.S.C.�1344, requires only an act that could put a bank at risk of loss or requires proof of intent to harm the bank. • 06-219, Wilkie v. Robbins (CA10) Whether government officials acting pursuant to their regulatory authority can be guilty under RICO of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established. • 06-309, Florida v. Rabb (Fla. App. Ct.) Whether it violates the Constiitution to use a drug-sniffing dog on the walkway to a private home to detect drugs inside the home • 06-396, Knowles v. Mirzayance (CA9) Whether a federal habeas court may grant relief by reviewing a state prisoner’s claim de novo on the basis of a federal evidentiary hearing record without considering whether the state court’s adjudication of the claim had been reasonable. • 06-405, Ray v. CSX (CA4) Determining the standard for who can be a relevant “decisionmaker” and agent for an employer in a suit under Title VII of the Civil Rights Act of 1964 for wrongful termination in the context of discriminatory enforcement of disciplinary procedures. • 06-414, Narragansett Indian Tribe v. Rhode Island (CA1) Whether a federal statute’s conferral of “jurisdiction” over Indian lands, but not over the tribe as sovereign, impliedly abrogates the tribal government’s sovereign immunity and thus empowers a state judge to authorize state police to execute a search warrant and arrest tribal officials acting in their official capacities. • 06-449, On Demand Machine Corp. v. Ingram Industries (CAFC) Whether the Federal Circuit has violated its constitutional authority by rendering moot 35 U.S.C.�112, �2 in holding that “[patent] claims cannot be of broader scope than the invention that is set forth in the specialization.” • 06-465, Price v. Philip Morris (Sup. Ct. of Ill.) Whether a negotiated Federal Trade Commission consent order operates as a safe harbor immunizing nonparties to the consent order from liability under otherwise applicable state law for conduct similar to that permitted under the order.

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