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The legendary First Monday in October is when the public work of the U.S. Supreme Court begins. But the real work begins earlier — this year on Sept. 25 — when the justices convene privately for what is known inside the building as their “long conference.” It is in that conference, in a room adjacent to Chief Justice William Rehnquist’s chambers, that the justices will pick out a handful of cases to add to their docket from among the hundreds of petitions that have piled up since their recess in June. Because of the summer backlog, it is the biggest of the court’s conferences, and it lasts a full day and sometimes more. But it is certainly not the Court’s only conference. The justices are scheduled to meet in conference to dispose of cases 28 times this term. It is the fulcrum of the Supreme Court’s agenda-setting process, but it rarely gets public attention — partly because it is so private. No one but the nine justices attend, and what they discuss in conference is not revealed — except through a bloodless order list issued the following Monday. That list recites the docket numbers and names of the few cases in which “certiorari” has been granted — meaning four of the nine justices have voted to place it on the argument calendar for decision — and the many more cases that have been denied. Often, issuance of that order list marks the first time — and with denials, the last time — the public will have heard about a case. This new column will shed light on the Supreme Court’s conferences by highlighting some of the cases that the Court will be discussing at upcoming conferences — cases that seem to have a better chance than most to be granted review. With the Court granting only about 80 of the more than 8,000 petitions placed before it each term, predictions are difficult. Thomas Goldstein, a D.C. practitioner, has been reviewing incoming petitions for several terms and has identified beforehand about 85 per cent of the cases the Court has ultimately granted. He uses a variety of factors, the most important of which is whether a petition points up a significant conflict on an issue between federal courts of appeal. Goldstein will be assisting in the preparation of this column. (Cases in which Goldstein is involved as counsel for a party or an amicus curiae group will be noted.) How can it be determined which new cases the Court will consider at which conference? The Supreme Court’s standard practice is to discuss a case at the first conference that takes place at least four weeks after the respondent files its brief opposing certiorari. Based on that practice and on publicly available docket information, the date for consideration at conference can be forecast. At times, however, cases are pulled off the conference agenda without explanation. Cases can also be “relisted” several times at a justice’s request. These vagaries make it impossible to predict precisely when an individual case will be discussed. If the Court follows past patterns, cases granted review at the Sept. 25 “long conference” will be announced the next day or later that week. Cases denied may be included on the orders list issued Oct. 2, the first Monday in October. Reports follow on some of the cases expected to be discussed at the Sept. 25 conference that will likely receive wide attention if granted. Following those is a briefer summary of other cases spotlighted by Goldstein as possible grants. PACKING HEAT Law enforcement agencies nationwide have added a new weapon to their anti-drug arsenals in recent years: thermal imaging devices that detect heat sources inside buildings, including the high-intensity lights used to grow marijuana. But courts have struggled to decide whether these devices are intrusive enough to trigger Fourth Amendment requirements for a search warrant beforehand. Three states and the 5th, 8th, 9th, and 11th federal circuits have said no, ruling the heat-seeking devices are analogous to sniffing dogs and planes flying overhead — neither of which, the Supreme Court has held, amount to searches under the Fourth Amendment. But the Pennsylvania Supreme Court, like three other state courts, has ruled otherwise, possibly setting up a conflict that the U.S. Supreme Court will want to resolve. In Commonwealth of Pennsylvania v. Gindlesperger, No. 99-1553, the state is challenging a ruling by the state Supreme Court in favor of Gregory Gindlesperger, whose home was scanned by a heat device after an informant tipped police that he was growing marijuana. “There is no reasonable expectation of privacy when it comes to heat waste,” says Christian Fisanick of the Pennsylvania District Attorneys Association, who filed the appeal. “This is a very important case for law enforcement.” But Gindlesperger’s lawyer, Elliot Segel of Erie, Pa., says the case is off-limits for the high court because the state court decision was based on independent state grounds, namely the state constitution — which has broader privacy protections. Note: A federal case raising the same issue, Kyllo v. United States, No. 99-8508, is also before the Supreme Court, and could be granted review instead of the Pennsylvania case. BEARING GOOD NEWS The justices may feel they had their fill of church-state cases with the major decisions they issued last term. But if not, a Milford, N.Y., case could be the vehicle for another look at how far public schools should go in accommodating religious practices. The plaintiffs in Good News Club v. Milford Central Schools, No. 99-2036, want the Supreme Court to strike down a 2nd Circuit decision that said Milford could bar the Good News Club, a Christian youth group, from school premises because it was a form of religious instruction. The case gives the Court a chance to resolve numerous circuit splits over the proper interpretation of L amb’s Chapel v. Center Moriches School District, the 1993 case that said a church group had a free speech right to show a film series on Christian child-rearing on public school premises. Courts have disagreed over whether that decision would allow prayer groups and even Sunday church services inside schools. “This is a very hot topic right now,” says Steven Aden of the Rutherford Institute, which is helping the Good News Club in its appeal. “Tens of thousands of churches meet in public schools, because local zoning boards make it so onerous for them to build and expand their own churches.” CASEY’S CASE One of the major golf stories of recent years was played out in the courts, not on the greens. And soon the Supreme Court may get involved as well. Professional golfer Casey Martin, who suffers from a circulatory problem that keeps him from walking from hole to hole for a full round of golf, sued the PGA Tour for not bending its rules and letting him use a motorized cart. Martin called it a “reasonable accommodation” that the PGA should be required to make under the Americans With Disabilities Act. But PGA Tour Inc. claimed that changing the rules would “fundamentally alter” its competition, making the accommodation unreasonable. The 9th Circuit sided with Martin in March. But two days later, in a similar case involving golfer Ford Olinger, the 7th Circuit ruled the other way. Based on testimony that a player using a golf cart would enjoy a tremendous advantage over competitors, the 7th Circuit found that the accommodation was more than the ADA required. In PGA Tour v. Martin, 00-24, the Supreme Court is asked to resolve the split. With several golfers on the court, the case may hold personal interest for some. But tied up with Martin’s dispute are broader issues of the application of the ADA to organizations like the PGA. QUORUM CALL The last time the Supreme Court handled the case of Hatter v. United States four years ago, an extraordinary thing happened. Four justices — John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg, and Stephen Breyer — recused themselves, depriving the Court of its quorum of six and leaving the lower court decision standing. They recused because they stood to benefit from the outcome of the case. It was first brought 11 years ago by a group of federal judges led by California federal trial Judge Terry Hatter Jr. They challenged Congress’ 1983 imposition of Medicare and Social Security taxes on judges, which they said violates the constitutional bar on reducing the compensation of judges while in office. Since the recusals, the case has bounced back and forth and is now before the justices again — known as H atter IV. Again a key issue is recusal. The United States argues that all the justices should participate, partly because of the little-used “rule of necessity,” which says that if no other court can decide a case, the Supreme Court has to. In addition, the passage of time and statutes of limitations mean that fewer of the sitting justices will stand to benefit from the case. At the recent 9th Circuit judicial conference, Hatter seemed to be doing a little lobbying in plain view with one of the justices who had recused before. In a dialogue on stage between Hatter, O’Connor and others, Hatter told O’Connor she was the most popular justice on the Court and asked her about her role as the Court’s “swing justice.” But the flattery fell flat. O’Connor, who doesn’t like to be called the swing vote, said sharply, “Chief Judge Hatter, you’ve been reading too many newspapers. I get a little impatient with that description.” THE BEST OF THE REST The case that the world has been waiting for, the antitrust battle known as Microsoft v. United States, No. 00-139, is also set to be addressed at the first conference. Unlike most cases, however, the key question before the justices is whether to send the case to the Court of Appeals first. D.C. Judge Thomas Penfield Jackson had sent the case directly to the Supreme Court under the Expediting Act, but Microsoft wants appeals court review first. Many think the Supreme Court will agree with Microsoft. In a case of deja vu, the issue of affirmative action might return to the court from the University of California, 22 years after the landmark Regents of the University of California v. Bakke. This time it is Hunter v. Regents of Univ. of California, No. 00-135, involving race-based admissions at a “laboratory” elementary school operated by the university. The 9th Circuit upheld the program. Another 9th Circuit ruling, this one giving prison inmates a novel First Amendment right, is before the Supreme Court in Shaw v. Murphy, No. 99-1613. The circuit ruling said a Montana jailhouse lawyer had a First Amendment right to contact other inmates to offer them legal help. Montana claims that five other federal circuits disagree. OTHER CASES UP FOR REVIEWNLRB v. Kentucky River Community Care, No. 99-1815. Determination of “supervisor” status under National Labor Relations Act. � B uckhannon Board and Care Home Inc. v. West Virginia Department of Health & Human Services, No. 99-1848. Use of “catalyst theory” to award attorneys’ fees. � Alexander v. Sandoval, No. 99-1908. Civil Rights challenge to Alabama’s English-only driver’s license exam. � District of Columbia v. Tri County Industries Inc., No. 99-1953. Power of district court to overturn jury awards. � Nguyen v. INS, No. 99-2071. Citizenship of children born out of wedlock to U.S. citizen fathers. � Janakakis-Kostun v. Janakakis, No. 99-1496. Meaning of “grave risk” exception to Hague Convention on Child Abduction. � Paramount Pictures Corp. v. Wendt,No. 99-1567. In case involving actors from “Cheers,” does federal copyright law pre-empt state claim of right of publicity? � Botezatu v. INS, No. 99-1627. Constitutionality of immigration law provision that strips federal courts of jurisdiction in certain deportation cases. � Knights of KKK v. Curators of University of Missouri, No. 99-1838. First Amendment challenge to state university’s refusal to permit Klan to underwrite university radio station programming. � Department of Interior v. Klamath Water Users Protection Association, No. 99-1871. Application of Freedom of Information act to federal correspondence with Indian tribes. � Chen v. Houston, No. 99-1946. Racial redistricting. � West v. Derby Unified School District, No. 99-2039. First Amendment challenge to use of racial harassment policy to punish a student who drew a Confederate flag on a paper in class. � Exxon Mobil Corp. v. Baker,No. 00-90. Jury irregularities in Exxon Valdez oil spill litigation.
U.S. Supreme Court: Year in Review: September 11 – 26

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