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Thursday was one of those pleasantly frantic days that will be fun for me to look back on in about six months. But at the moment it’s difficult to describe in terms acceptable for a “family” semi-humorous semi-factual Supreme Court column, so let’s all just get it over with. The last four cases of October Term 2000 were handed down June 28. More ad-hockery on th’ ol’ First Amendment front, more good news for unwanted aliens, more bad news for prisoners seeking habeas review, and more opinions than you would ever want to read on the Takings Clause of the Fifth Amendment. Any first-year law student is familiar with the basic First Amendment distinction between Political Speech on the one hand (marginal First Amendment value) and Mushroom Speech and Illegally-Intercepted Speech on the other (which lies at the core of First Amendment Protection). Prepare to add another thing to the latter category. Last week, the Court acted decisively to protect Tobacco Speech. ‘LORILLARD TOBACCO CO. V. REILLY/ALTADIS U.S.A. INC. V. REILLY,’ NOS. 00-596, 00-597 This case concerns the validity of Massachusetts state regulations governing the advertising and sale of cigarettes, smokeless tobacco and cigars, in order to reduce the use of tobacco by minors. The restrictions included (1) sales restrictions: prohibitions on self-serve displays and putting them within reach of customers, prohibition on giving free cigar samples; (2) advertising restrictions: prohibitions on outdoor advertising near playgrounds or schools, and on point-of-sale advertising near playgrounds or schools unless in an adult-only retail establishment, and on point-of-sale advertising less than five feet off the floor. Several tobacco companies sued, claiming that the advertising restrictions were inconsistent with the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings for cigarette packaging and advertising, and that they violated the First Amendment. The district court largely upheld the rulings, finding them not preempted and (with the exception of the sub-five-feet restriction) constitutional. On appeal, the 1st U.S. Circuit Court of Appeals did the district court one better, holding that the regulations were not preempted and were constitutional across the board, including the height restriction. The Supreme Court affirmed in part, reversed in part, and remanded in (to use a legal term of art) a big honkin’ 42-page opinion by Justice O’Connor that was by turns 5-4, 9-0, 6-3, a different 6-3, 5-4, 6-3, and 5-4. Those who say the Court’s jurisprudence is marked by ad hoc decision making and “shifting majorities” probably never expected the majorities would shift within the same opinion. (In consecutive sections, the majority goes from Justices O’Connor, David Souter and the Usual Suspects (Chief Justice William Rehnquist plus Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas), immediately switches to Justice O’Connor plus the Gang of Four (Justices John Paul Stevens, Souter, Ruth Bader Ginsburg, Stephen Breyer), and then switches back again.) Justice Breyer’s understudy, Souter, was once again filling in as Crossover Sensation, and he voted with the more conservative Justices through much of the opinion. First, the Court held 5-4 (Justice O’Connor plus the Usual Suspects) that the FCLAA pre-empts Massachusetts regulations governing outdoor and point-of-sale advertising for cigarettes. The FCLAA’s pre-emption provision in relevant part prohibits any “requirement or prohibition based on smoking and health … imposed under state law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity” with the health warnings required by the Act. Congress broadened the preemption provision in 1969, at the time it banned cigarette advertising in electronic media. The Court concluded that Congress expressly pre-empted state cigarette advertising regulations because they would upset the federal legislative choices to require specific warnings and impose the electronic-media advertising ban. The Court rejected Massachusetts’ claim that the regulations are a form of zoning that is presumptively not preempted, because the regulations were clearly “prohibitions … with respect to” cigarette advertising within the scope of the preemption provision. In a sop to the states, the Court unanimously held that the FCLAA’s pre-emption provision would not prevent the states from enacting generally applicable zoning restrictions on the locality and size of advertisements that apply to all products equally. So look for states to enact “zoning” restrictions prohibiting advertising around schools and playgrounds. Second, the Court 6-3 held that outdoor and point-of-sale advertising regulations violated the First Amendment, but that sales-practice restrictions for all three tobacco products were constitutional. Under the four-part test of Central Hudson, the Court analyzes regulation of commercial speech to determine (1) whether the expression is protected by the First Amendment; (2) whether the asserted government interest is substantial; (3) whether the regulation directly advances that governmental interest; and (4) whether the regulation is more extensive than necessary to serve that interest. The Court thought only prongs (3) and (4) were in play here. As to outdoor advertising, the Court first concluded that prong (3) was satisfied because the regulations directly advanced the government’s interest. The Court’s “detailed review of the record” showed that underage tobacco use is a serious problem and it was not “mere speculation and conjecture” that preventing targeted advertising campaigns and limiting youth exposure will decrease minors’ use of tobacco. (For example, minors seem to prefer heavily advertised brands, and Camel’s share of the kiddie market tripled after R.J. Reynolds stuck a cigarette in the mouth of a sunglasses-wearing cartoon camel. Now if we could just get Joe Camel to lay off the junk food and exercise, maybe the children of America wouldn’t be so damned fat.) Justice O’Connor had no problem with Massachusetts relying on the FDA’s evidence (i.e., it didn’t need to conduct its own study), but the Court rather pointlessly observed that the FDA doesn’t have regulatory authority over tobacco after October Term 1999′s FDA v. Brown & Williamson. This was the 6-3 section composed of Justices O’Connor, Stevens, Souter, Ginsburg, Breyer, and the Chief Justice. That last name may look kinda funny in this company, but the Chief is relatively regulation-friendly when it comes to speech, and he normally feels obliged to join any opinion he assigns, even if he doesn’t agree with it completely. After all, he can always distinguish it later. Switching quickly to prong (4), the Court then held by a 5-4 vote (Justice O’Connor plus the Usual Suspects) that the restrictions were unduly overbroad. After all, the regulations prohibit advertising in a substantial portion of Massachusetts’ metropolitan areas, constituting a near-complete ban for some areas on what the Court called (for lack of a better term) “truthful information.” By which I suppose they mean Newport helpfully informing me that if I smoke that brand, my attractive spouse will playfully spray me with a garden hose as I bare my preternaturally white teeth in a smile (“Newport pleasure!”). The sweep is just too broad, especially given that tobacco use by adults is a lawful activity: It doesn’t try to tailor restrictions that especially appeal to minors, and it would appear to even prohibit stores from even informing passersby that they sell sot-weed. Using her favorite unhelpfully vague I-know-it-when-I-see-it word, O’Connor concluded that “a speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products.” As for indoor point-of-sale advertising, the same six Justices held that the restriction on ads lower than five feet off the floor violated both prongs (3) and (4) of Central Hudson, because it didn’t seem to advance the goals of preventing minors from using tobacco. Not all children are under five feet tall (unless, of course, their growth has been stunted by smoking), and in any event, it’s not like kids’ necks don’t hinge and allow them to look up. By the same 6-3 vote, the Court upheld requirements that tobacco be kept out of reach of all consumers in a location accessible only to salespersons. Even assuming that tobacco companies have a “speech” interest in a particular means of displaying their products, the state has demonstrated a substantial interest in preventing access to tobacco products and has adopted an appropriately narrow means of advancing that interest, by preventing minors from grabbing tobacco without adult intervention. Those regulations allowed ample alternative channels for communication. Justice Kennedy wrote an opinion concurring in part and concurring in the judgment, joined by Justice Scalia. He argued it was unnecessary to reach the third prong of Central Hudson since the laws violated the fourth prong, and wrote that he had “refrain[ed] from expressing agreement” with Central Hudson because of “continuing concerns that the test gives insufficient protection to truthful, nonmisleading commercial speech.” Justice Thomas wrote an opinion concurring in part and in the judgment. He basically only wrote to renew his 44 Liquormart claim that restrictions on truthful speech should be subject to Vente (strict) scrutiny regardless of whether the speech was “commercial” or not. Under that, these restrictions clearly failed. The “homepage” virus has infected ThomBot, so once again it failed explicitly to call for precedent to be overruled. Invoking Socrates (who was condemned for being “a doer of evil, inasmuch as he corrupts the youth”), Justice Thomas argued that the free speech rights of adults shouldn’t be restricted simply because the speech is inappropriate for some of the audience (i.e. children), and noted that Massachusetts’ argument could be applied to fast food (which is also bad for you if used long-term). He then rigorously analyzed the evidence of a tie between advertising and tobacco use by minors and found it wanting. Justice Souter must be suffering from a near-terminal case of writers’ cramp, because the normally verbose Yankee filed another of his one-paragraph opinions that basically just blandly restates which parts of which opinions he’s joining. Justice Stevens dissented, joined in full by Ginsburg and Breyer and in part by Souter. Showing the ability to slice ‘n’ dice contrary authority that he displayed in the Casey Martin and St. Cyr cases, he disagreed with the Court’s pre-emption ruling (Justice Souter joined only this part), argued that the tobacco ban served important state interests, and argued that trial was necessary before you could rule on the constitutionality of geographical restrictions on advertising because it was unclear whether tobacco companies had adequate room in which to plug their goods. (Justice Souter suggested his agreement on that last point too.) ‘PALAZZOLO V. RHODE ISLAND,’ NO. 99-2047 I have often wondered what a majority opinion in a takings case would look like if Justice Kennedy wrote it. After last week, we have the answer, and it is this: “The State may not put so potent a Hobbesian stick into the Lockean bundle.” Goodnight! Thank you for coming! Drive safely! Well, I suppose you want more than that. Anthony Palazzolo bought some waterfront land in Rhode Island in 1959 through a corporation (SGI); most of it was marshy coastland, so it would require considerable fill before structures could be built on it. Over the years, SGI’s proposals for development were rejected. Then in 1971, Rhode Island created the Rhode Island Coastal Resources Management and Investment-Backed-Expectation Frustration Council (title only partially made up) and charged it with protecting coastal properties for environmental reasons. The Council designated salt marshes as protected coastal wetlands and limited their development, ruling eventually that owners needed a “special exception” to fill a marsh and the proposed activity on it must serve a “compelling public purpose,” which in mob-filled Rhode Island (official state motto: “Whadda you lookin’ at??”) probably means burying bullet-riddled bodies. In 1978, SGI’s corporate charter was revoked for failure to pay tax, and so title in the land vested in Palazzolo personally. The Council rejected various proposals Palazzolo had for developing the land. He brought an inverse condemnation action in Rhode Island Superior Court alleging a Lucas v. South Carolina Coastal Council claim, saying that the regulations had deprived his property of “all economically beneficial use.” The state trial court and supreme court rejected his claims on pretty much every grounds imaginable. The U.S. Supreme Court affirmed in part, reversed in part, and remanded in a 6-3/5-4 opinion by Justice Kennedy. By a 6-3 vote, the Court first rejected the state supreme court’s holding that petitioner’s claim was ripe because there was still doubt about the extent of development that would be allowed on the land. The Court held that the regulations were sufficiently unequivocal and the Council’s application of the regulations to Palazzolo’s property made clear that it interpreted its regulations to bar him from filling or developing the wetlands. The fact that Palazzolo hadn’t sought approval of a plan that would have only developed its upland portion didn’t render the case unripe, because there was an undisputed estimate of the value of the land so developed. Justice Kennedy’s opinion was joined by the Usual Suspects and — surprisingly — Justice Stevens. That’s pretty interesting in and of itself, but the most important holding was still to come. The rest of the opinion was basically 5-4 along usual ideological lines. The Court next held that the fact that Palazzolo had personally acquired title after the 1971 effective date of the regulations (because SGI’s charter was revoked and it became defunct) did not bar his takings claim. Now this is significant, because it’s argued that a state can shape and define property rights. When later buyers take the land subject to those restrictions, they are incorporated in the lower purchase price. This is the spot in the opinion when Justice Kennedy pulled out the “Hobbesian stick” and beat us over the head with it. The problems with such a rule are most apparent with Palazzolo, because the land was just transferred from SGI to him, as the corporation’s sole shareholder, but the Court was clearly setting up a general rule. Kennedy found the Court’s opinion in Nollan v. California Coastal Commission (1987) to be controlling, because there the Court confronted a post-restriction property transfer and there wrote (albeit in a footnote) that “So long as the commission could not have deprived the prior owners of the easement without compensating them … the prior owners must be understood to have transferred their full property rights in conveying the lot.” This holding is a pretty big deal, and was the focus of much of the separate writings you’re still going to have to plow through. Kennedy is always very guarded in his opinions, so you can count on there being a disclaimer somewhere, and here is Palazzolo’s: We said that the Court had “no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law or whether those circumstances are present here. It suffices to say that a regulation that otherwise would be unconstitutional absent compensation is not transformed into a background principle of the State’s law by mere virtue of the passage of title.” Unlike a Publisher’s Clearinghouse recipient, Palazzolo was not yet a winner. The Court held he hadn’t made out a Lucas-type total deprivation claim because there was still the value of his upland parcel. The Court remanded back to the state court for a Penn Central-type analysis about whether the extent of the regulatory taking was so great to entitle him to compensation. Justice O’Connor wrote to express her “understanding of how the issues” concerning transfer-of-title must be considered on remand. She is someone who wants to keep her options open at all times, and that’s what this opinion does. She wrote that the Court’s holding “does not mean that the timing of a regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis.” It was one factor to consider as part of th’ ol’ multi-factor test there, and the Court on remand had to consider “all the relevant circumstances” before determining whether compensation was required here. Ms. Multi-Factor out, Mr. Bright-Line in. Justice Scalia continued his Charm Offensive with Justice O’Connor from Nevada v. Hicks, writing separately to emphasize that his “understanding of how [those] issues … must be considered on remand is not Justice O’Connor’s.” He said there was no basis for ever giving the government the benefit of a transfer in title either in the Lucas total taking situation or under Penn Central. He thought the timing of the restriction “should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking.” But like Justice Kennedy, he also shied away from saying when that restriction would become part of the “background principles of the State’s law of property and nuisance.” Justice Ginsburg dissented, joined by Justices Souter and Breyer. She argued that “we still do not know the nature and extent of permitted development” to Palazzolo’s land sufficient for the dispute to be ripe. That charmer Justice Breyer wrote a separate opinion styled a dissent, but he appeared only to be dissenting from the position that anyone could ever think that Justice O’Connor isn’t the greatest person ever. The once-and-future Crossover Sensation agreed with the insightful and charming Justice O’Connor’s position that “the simple fact that a piece of property has changed hands … does not always and automatically bar a takings claim.” He seemed to have a more limited view, though, for cases involving inheritance or automatic transfers through operation of state law. He warned that people wouldn’t be allowed to transfer away subsections of a parcel of land (say, Palazzolo’s marshy section from its upland section) to manufacture total takings claims. Justice Stevens concurred in part and dissented in part. Although expressing his admiration for Justice Kennedy’s “admirable effort to frame [the] inquiries in broadly significant terms” (i.e., “thanks for being vague”) he thought that the Court had oversimplified the decision making in a way that merged separate questions. He suggested people would acquire only the net value after the diminishment occurred. Blah blah blah. He in particular dissented from the idea that land could be transferred without losing a takings claim, noting that the majority’s holding “admits of no obvious limiting principle,” so that even the 30th purchaser could recover a takings claim. ANOTHER BLOW FOR THE INS The Warren Court forced the government to play nice to criminal defendants, but made up for it by allowing them to be As Bad They Wanna Be with aliens. In the waning years of the Rehnquist Court, those positions have been reversed. Principally that is because in the old days the Court took a hands-off approach to immigration issues, leaving that to the so-called “political” branches of government. And nowadays, of course, the Court doesn’t take a hands-off approach to anything, be it presidential elections or pro golf. And so Justice Kennedy walked away from the “Congress has plenary authority in the field of immigration” thing in Nguyen in favor of standard equal-protection analysis (although the INS did win that). Then Justice Stevens stymied Congress’ attempts to hustle criminal aliens out of the country in last Monday’s St. Cyr and Calcano-Martinez. Now Justice Breyer deals the INS another body blow in … ‘ZADVYDAS V. DAVIS/ASHCROFT V. KIM HO MA,’ NOS. 99-7732, 00-38 Kestutis Zadvydas is an ethnic Lithuanian who had the misfortune to be born in postwar Europe sorta “in between” countries; Kim Ho Ma is a Cambodian. Both did bad, bad, things and the Immigration and Naturalization Service attempted to deport them. The problem is their home countries, in violation of the principle, observed on kitschy hand-lettered signs in Cracker Barrel gift shops coast to coast that “home is where they have to take you back,” wouldn’t. Evidently, whenever the INS called those countries, the guy who picked up the phone pretended he was on the other line and said he’d call back, but never did. Now, the INS normally spirits unwanted aliens out of the country within 90 days, and during that 90-day period, aliens are normally detained unless they can show they’re not a danger to the community or a flight risk. A special statute states that, if the Attorney General determines the alien is a danger to the community or unlikely to comply with the order of removal, the alien “may be detained beyond the removal period, and if released, shall be subject to [certain] terms of supervision.” Both Zadvydas and Kim Ho Ma were held for a good long time while the INS tried to unload them, and they both filed habeas petitions under 28 U.S.C. � 2241, saying that their indefinite detention violated their due process rights. In stereotypical fashion, the 5th Circuit rejected Zadvydas’s claim (“Now what amendment is that raaht in, boy?”), but the 9th Circuit accepted Kim Ho Ma’s (“You look like you could use a hug. Come here.”) By a 5-4 vote, the Court agreed with the 9th Circuit on this one. Justice Breyer wrote the opinion of the Court, joined by the Gang of Four and Justice O’Connor, who is clearly swinging left lately. Like the St. Cyr opinion, the Court once again used the principle of “constitutional doubt” to back into the statutory reading it wanted, rather than just striking the thing down. The Court found the phrase “may be detained” to be ambiguous about how long Congress meant aliens could be detained past 90 days. The Court found that a statute permitting indefinite detention would raise serious constitutional questions, since freedom from imprisonment “lies at the heart of the liberty protected by” the Due Process Clause, and preventative detention is only justified in limited circumstances such as when the detainee has a mental illness. The Court was unimpressed by the procedural protections in place, which consisted of review by the Attorney General; the Court wrote that the Constitution “may well” (aren’t they supposed to provide guidance or something?) preclude granting an administrative body unreviewable authority to make determinations implicating fundamental rights. The Court held that aliens could only be detained the amount of time “reasonably necessary for removal,” and that the detention would be subject to federal-court review. So what’s reasonable? Like everything else nowadays, that is to be determined by judges. If removal is not reasonably foreseeable, courts should hold continued detention unreasonable and spring the alien; if removal is foreseeable, the court should consider the risk of to the community as a factor potentially justifying confinement. In a purported effort to limit the number of times courts would have to intrude on an executive function, the Court created a sort of Warren-Courtish bright-line rule presuming that six months was the appropriate outer limit of time for a deportation, and after that, if an alien makes a showing that there’s no significant likelihood of removal in the foreseeable future, the government has to rebut that showing or spring the guy. As a bit of a sop to the political branches’ erstwhile plenary authority over immigration, the Court held that in making determinations about detention, courts must take “appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns [of the INS], and the Nation’s need to speak with one voice in immigration matters.” (You’d better be careful what you say before the Court, because it has a long institutional memory. The Court relied in part on the fact that “Congress previously doubted the constitutionality of detention for more than six months,” citing as authority a jurisdictional statement filed by the Solicitor General’s office during the Eisenhower Administration.) Also significantly, the Court distinguished Shaugnessy v. United States ex rel. Mezei (1953), in which an alien was indefinitely detained as he attempted to enter the country, on the grounds that the alien there hadn’t really been admitted to the country yet. When you stop someone at the border, that’s one thing, but once they actually get inside — whether legally or illegally — they get the protections of the Due Process Clause. This analysis is going to be helpful to Michael Crane, who challenges the constitutionality of his detention under the Kansas sexual predator statute in next Term’s Kansas v. Crane. Justice Kennedy dissented, joined by the Chief Justice in full and in part by Justices Scalia and Thomas. It is without a doubt, the strongest dissent Justice Kennedy has written this Term. Come to think of it, though, it’s his only dissent he’s written this Term. He argued that to avoid a constitutional question, the majority had “interpret[ed] a statute in obvious disregard of congressional intent; cur[ed] the resulting gap by writing a statutory amendment of its own; committ[ed] its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation’s most sensitive negotiations with foreign powers; and then likely releas[ed] into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both.” Kennedy argued that the text of the statute permitted indefinite detention (and that Congress legislated knowing that deportations sometime take a while). Justices Scalia and Thomas joined that portion. He noted that aliens who have committed the most serious offenses (and who thus are the least likely to be taken back by their home countries) are perversely the ones most likely to be released to prey on the public, because there’s no realistic prospect for their return. While agreeing that lawfully admitted aliens might stand on a different footing than excluded aliens, illegal aliens were closer to the second category. Finally, he argued that the aliens were subject to real procedural protections in the form of periodic administrative review. This still wasn’t quite enough for Justice Scalia, who also dissented separately, joined by Justice Thomas. He interpreted the second section of Kennedy’s opinion as suggesting there were some circumstances in which courts can order release, and he disagreed. He thought the case indistinguishable from Shaughnessy, because aliens subject to a final order of removal have no greater due process right to be released into the country they’ve been ordered removed from than an alien at the border seeking entry. MORE AEDPA CASES The only way the cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) will stop coming is if the Court stops sitting. The last AEDPA case of the Term was handed down last week. ‘TYLER V. CAIN,’ NO. 00-5961 Tyler v. Cain involved the meaning of one of the procedural bars the AEDPA places on second or successive habeas corpus applications by state prisoners. It provides that a claim that was not raised in an earlier habeas petition must be dismissed if the claim relies on a new rule of constitutional law that was previously unavailable if “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. � 2244(b)(2)(A). For the 99 percent of lawyers who don’t do habeas work: New rules of constitutional law generally aren’t applied to cases being reviewed on habeas. The idea here is that habeas exists to guarantee that state courts faithfully apply constitutional law as it exists when cases are decided, and states shouldn’t have to keep re-trying prisoners because their trials violated later-developed constitutional principles if the trials were OK under then-existing legal rules. Melvin Tyler was convicted of murder in Louisiana using a jury instruction on reasonable doubt later found to be constitutionally infirm in Cage v. Louisiana (1990) and Sullivan v. Louisiana (1993). Tyler argued that later cases had made Cage retroactively applicable to cases on habeas. The 5th Circuit disagreed. The Supreme Court affirmed 5-4 in an opinion by Justice Thomas. He construed “made” to mean “held,” and wrote that a rule becomes retroactive not by decisions of lower courts or by lower-court gloss on general principles set forth in Supreme Court opinions, but only by action of the Supreme Court. Furthermore, the only way the Court could make it retroactive is by an actual holding, as opposed to dicta. Cage did not make the rule announced there retroactive, and neither did Sullivan, although Sullivan held that that type of error with the “reasonable doubt” jury instruction was so-called “structural error,” meaning that harmfulness would be presumed. He agreed in principle that a rule could be made retroactive over the course of two cases; that wasn’t the case with Cage. Finally, the Court declined to make Cage retroactive in this case, because it apparently believed (surprisingly) it didn’t have power to under � 2244. The Court essentially held that the district court was obliged to dismiss his petition because Cage hadn’t already been made retroactive, and (although the opinion is somewhat murky on this point) the Court evidently didn’t feel it had power to consider the matter further. This is noteworthy because the Solicitor General seemed to assume that the Court could apply it retroactively in this case (although it shouldn’t), and reportedly conceded at argument that the Court could do so. In some ways Tyler would have been better off if someone would have opposed the argument more forcefully, so he would have had a better opportunity to present his best arguments why the Court could reach it (on remand, after all, it would have been “made retroactively applicable” by the Supreme Court). But it looks kinda funny to make an extensive argument on a subject your opponent seems to concede. Oh well. Justice O’Connor concurred. The main point of her concurrence seemed to be to agree with Justice Breyer (and the majority didn’t disagree) that a rule could be made retroactive over the course of several cases if the court held a rule was of a particular type that came within one of the Teague v. Lane (1989) exceptions to the background presumption that new constitutional rules wouldn’t be applied retroactively. Justice Breyer dissented, joined by Justices Stevens, Souter, and Ginsburg. He argued that Cage had been made retroactive in steps. The first step was Teague, in which the Court said that a new rule could be applied retroactively on habeas if (1) infringement of the new rule seriously diminished the likelihood of obtaining an accurate conviction and (2) the new rule alters our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. The second step was Sullivan, in which the Court held that Cage was structural error, meaning that it was always harmful, and in which the Court said that failure to give a good reasonable doubt instruction “vitiates all the jury’s findings” and deprives a criminal defendant of a “basic protection … without which a criminal trial cannot reliably serve its function.” He thought that description tantamount to concluding that Teague‘s requirements had been met. ORDERS In other news, the Court released the last order list of the Term at 10 a.m. on Thursday. Do you see what I mean about the dropped object never hitting the ground?!?!? On the order list: the Court GVR’d (granted, vacated, and remanded) 12 cases in light of Zadvydas, which is shaping up to be this Term’s Apprendi let-em-loose opinion (there are supposedly over 2000 aliens who are being held indefinitely pending deportation), plus another five cases in light of St. Cyr. Two new grants: ‘RUSH PRUDENTIAL HMO, INC. V. MORAN,’ NO. 00-1021 This was relisted last week and the Court granted on Thursday. The Court appears to have held Montemayor v. Corporate Health Ins., No. 00-665, the case on the opposite side of the split, pending consideration of Moran. The case presents the question whether an independent review provision of the Illinois HMO Act is preempted by ERISA. The Illinois act purportedly is similar to laws adopted in 37 states, so this ought to have great practical importance. ‘TAHOE-SIERRA PRESERVATION V. TAHOE REGIONAL PLANNING,’ NO. 00-1167 The Court has been holding this case for ages pending resolution of Palazzolo, and evidently it didn’t resolve the question. The Court granted limited to the following question: Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the U.S. Constitution? For those of you who want to cluck your tongues and nod knowingly, the panel below consisted of Judges Stephen Reinhardt (who wrote the opinion) and Michael Daly Hawkins of the 9th U.S. Circuit Court of Appeals and Judge Henry A. Politz (visiting from the 5th Circuit). Cluck cluck, nod nod. Dogs that didn’t bark: the Court denied certiorari in a case relisted last Monday, United States v. GWI PCS 1 Inc., No. 00-1621 (the case presented the question whether a court in bankruptcy proceedings may use the “equitable mootness” doctrine to override the FCC’s exclusive authority to regulate telecommunications licenses). You’ll get nothing and like it. The Court now has approximately 43 grants for next Fall (some of which have been consolidated for argument), which is about 18 cases ahead of where the Court was at this time last year and the year before. That will take a little (but not much) pressure off the Court to expedite briefing in every case granted next Fall. That’s it for me, SportsFans. Consummatum est. I am out of here. These updates are not intended to reflect a lack of respect for any of the Justices, other jurists, their clerks and/or domestic livestock, but merely to inject some levity into the normally humdrum process of keeping abreast of legal developments. The views expressed herein do not necessarily represent the views of law.com, Baker Botts, or, for that matter, the author. Your actual mileage may vary. Void where prohibited. Thank you. Please drive around. John Elwood is a partner with Baker Botts in Washington, D.C., specializing in appellate practice and white collar criminal defense. Prior to commencing private practice, Elwood clerked for Associate Justice Anthony M. Kennedy of the Supreme Court of the United States. He can be reached at [email protected].

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