McDonald v. City of Chicago—The Reply Brief

Today, Cockle filed the Petitioner’s Reply Brief in McDonald v. City of Chicago, No. 08-1521.  In that brief, McDonald’s counsel of record, Alan Gura, once again calls on the Court to overrule The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), or in the alternative, hold that the Due Process Clause incorporates the Second Amendment right to bear arms.  The Reply Brief can be viewed here. 

While the Reply Brief highlights many of the same themes as the Petitioner’s Brief, it does shed light on a few issues previously unaddressed. Notably, the brief may be one of the first Supreme Court merits briefs to invoke the Court’s decision last week in Citizens United v. FEC, 558 U.S. __ (2010), No. 08-205. McDonald argues, by citing Justice Kennedy’s opinion in Citizens United, that where neither party defends a prior precedent, “stare decisis is diminished.” The brief also attacks Slaughterhouse on the ground that “decisions improperly limiting enjoyment of con­stitutional rights create no valid reliance interests.”  (Note: When looking to overrule prior cases, the Court often considers to what degree the country has relied on a decision.  The higher the reliance, the less likely a case will be overturned.)

A Google search is also at issue in the brief.  The City of Chicago had presented a computerized search of 19th Century newspapers, finding few articles declaring a publicly held belief that the Privileges and Immunities Clause covered the Bill of Rights. The City had argued that the absence of newspaper articles was conclusive regarding whether there existed an original public meaning of the Privileges and Immunities Clause that includes the right to bear arms.  Countering that argument, McDonald asserts that “[a] paper based on little more than a Google search should not be used against decades of detailed, disciplined scholarly work by some of the nation’s leading legal historians.”

One of the main counterpoints advanced by McDonald in reply was that federalism (and policy matters in general) cannot trump constitutional rights. McDonald maintains that the City’s “irrelevant political arguments” against applica­tion of the Second Amendment to the States failed “to accept that the decision to secure the right in our Constitution has already been made.”

McDonald is scheduled for argument on Tuesday, March 2, 2010, with a decision expected sometime before the end of the Term in late June.  

The Court Issues Two Opinions and Denies Review of Manuel Noriega’s Petition

In a flurry of action, the Supreme Court on Monday issued two opinions, granted certiorari in two cases, called for the views of the Solicitor General in two others, and denied a host of cert petitions, including that from former Panama dictator Manuel Noriega. 

The Court announced decisions in Hemi Group, LLC v. City of New York, No. 08-969 and Briscoe v. Virginia, No. 07-11191.  In Hemi, an unusual combination of Justices (Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg and Alito) held that since the City of New York could not establish lost tax revenue caused by a RICO violation, the City could not therefore state a valid RICO claim.  The opinion can be viewed here.

The Court in Briscoe issued a GVR order (i.e., granting the certiorari petition, vacating the lower court’s order, and remanding the case in light of an intervening development) after conducting oral argument.  The GVR order most likely represents what was an insufficient number of votes for overruling the Court’s controversial opinion last June in Melendez-Diaz v. Massachusetts, 557 U.S. __ (2009).  Justice Scalia lamented during oral arguments that the only reason certiorari had been granted in Briscoe was to reconsider the Melendez-Diaz ruling.  That ruling now appears safe.  The petitioner’s merits briefs (printed by Cockle) can be viewed here and here.  The Court’s opinion can be viewed here. 

 In Chase Bank USA v. McCoy, No. 09-329 and Providence Hospital v. Moses, No. 09-438, the Court called for the views of the Solicitor General.

 The Court also granted certiorari and consolidated for oral argument the petitions in Abbott v. United States, No. 09-479 and Gould v. United States, No. 09-7073.  Those cases involve the federal criminal statute making it a crime to use, carry or possess a firearm during a drug trafficking or violent crime. 

The Court declined review on several cases relisted from previous conferences. Among those petitions was the request for review filed by Manuel Noriega.  Noriega v. Pastrana, No. 09-35.  Notably, the denial of the Noriega petition drew a dissent from Justices Thomas and Scalia, arguing that the case presented issues of significant importance requiring the Court’s “guidance” in assisting the political branches to “discharge their responsibilities over detainee cases…” The dissent can be viewed here.

Citizens United Handed Down

Today, the Supreme Court conducted a special session to hand down the opinion in Citizens United v. Federal Election Commission, No. 08-205.  The Court—led by the conservative majority of Chief Justice Robert and Justices Scalia, Kennedy, Thomas, Alito—overturned two significant precedents holding that Congress may restrict corporate spending on political ads and commentary. 

Justice Kennedy, writing for the Court, held that “government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”  Referencing the popular movie Mr. Smith Goes To Washington, Kennedy further wrote that “Governments are often hostile to speech, but under our law and our tradition it seems stranger than fiction for our Government to make this political speech a crime.” 

The Court’s opinion in Citizen United can be viewed here. 

Filing an Amicus Curiae Brief in the U.S. Supreme Court

According to Supreme Court Rule 37.1, the filing of “an amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court” in determining the importance of the case. In fact, some studies have found that the filing of an amicus brief in support of a Petition can significantly increase the chances of acceptance “from 8.5 to 37.1 percent.” H.W. Perry, Jr., Deciding to Decide 137 (1991) (Table 5.4). The filing of several amicus briefs by diverse groups, the involvement of the Solicitor General or one or more states further increases the success rate.

While a good amicus brief can help the Petitioner on the Certiorari stage, a well-crafted amicus brief on the Merits stage may be of assistance to both parties by highlighting for the Court factual information or analytical approaches not provided by the parties. A persuasive amicus brief on the Merits may even “help shape the judicial decision.” See Gressman, E., et al., Supreme Court Practice, at 741 (9th ed.).

While it is easy to understand the important role an amicus brief can play in the Supreme Court, understanding the intricacies of Rule 37 (which governs the filing of amicus briefs) can present some difficulties. The following guide may help:

Time for filing – Certiorari stage: An amicus brief on the Certiorari stage in support of the Petitioner must be filed within 30 days after the case is placed on the docket. This is usually the same date that a brief in opposition is due and can easily be found on the Supreme Court docket. However, it is important to note that when the Respondent is granted an extension to file the brief in opposition, that extension does not apply to an amicus brief in support of Petitioner. It is rare that an amicus brief is filed in support of the Respondent at this stage, but if one is filed, it must be “submitted within the time allowed for filing a brief in opposition.” See Supreme Court Rule 37.2(a). Thus, an amicus brief supporting a Respondent does benefit from an extension received by the Respondent.

Time for filing – Merits stage: An amicus brief on the Merits stage must be filed within 7 days after the brief for the party supported is filed. For example, if the Respondent filed their amicus brief on October 7, 2009, the amicus brief in support of the Respondent would be due on October 14, 2009. If the amicus brief is supporting neither party, the brief is due no later than 7 days after the time allowed for filing the Petitioner’s brief, i.e., at the same time as an amicus in support of the Petitioner.

Consent: On both the Certiorari stage and the Merits stage, written consent of all parties should accompany amicus briefs sent to the Court. Written consent need not be a formal letter; an email from Counsel of Record or co-counsel granting consent is also acceptable. If an amicus group does not receive consent from both parties, they must file a motion for leave to file the brief indicating the party or parties who have withheld consent and the nature of the amicus’ interest in the case. See Rule 37.3(b). If a motion is required, it is not a separate document. It should appear directly after the title page and before the index. The Court does not require the United States Government, its agencies, a State, Commonwealth, Territory or Possession to have consent to file an amicus brief.

Amicus footnote: The first footnote on the first page of text of the amicus brief must indicate whether counsel for a party authored any part of the brief and whether counsel or a party made a monetary contribution intended to fund the preparation or submission of the amicus brief. On the Certiorari stage, there must also be a statement indicating that parties were notified 10 days prior to the filing of the brief of the amicus’ intention to file. See Rule 37.6 and a sample footnote here. In addition, this footnote will also contain a statement indicating that the parties have consented to the filing of this brief.

The Court Issues Two Decisions and an Order List

The Supreme Court issued two opinions today, and as usual, denied a slew of petitions for writ of certiorari.  The Court’s opinions and order list can be viewed here.

The opinions issued in Presley v. Georgia (09-5270) and Wellons v. Hall (09-5731), involved criminal law issues which were summarily decided by the Court without the benefit of oral argument.  Presley questioned whether a trial court could exclude the public from the voir dire of prospective jurors.  The Court held that the Sixth Amendment requires that trial courts are “obligated to take every reasonable measure to accommodate public attendance at criminal trials.”  In Wellons, the Court issued a GVR order (granting certiorari, vacating the judgment below, and remanding the case back to the lower court), based on its conclusion that the lower court erroneously denied Wellons federal habeas corpus review. The per curiam opinion drew separate dissents from Justices Scalia and Alito.

The Court did not grant new certiorari petitions.  The lack of cert action by the Court most likely reflects the fact that the Court granted five petitions last Friday.  At this juncture of the term, this is not an unusual move.  In order to expedite briefing schedules, the Court will often announce the granting of certiorari on the day of conference. This is exactly what occurred on Friday as the Court expedited briefing on all five cases.  Those five cases are:

• Krupski v. Crociere (09-337)
• Hardt v. Reliance Standard Life Insurance Co. (09-448)
• Monsanto Co. v. Geertson Seed Farms (09-475)
• Rent-A-Car v. Jackson (09-497)
• Doe v. Reed (09-559)

Notably, the Court also relisted several cases from previous conferences.  The Court infrequently relists cases and does so for a variety of reasons.  Those reasons include:

• the Court is waiting on the lower court record (see e.g., Thaler v. Haynes (09-273)
• one or more Justices need further time to consider the case (see e.g., City of Ontario v. Quon, (08-1332)
• a Justice may be preparing a dissent from the denial of certiorari (see e.g., Virginia v. Harris, (08-1385)
• the Court may be considering summary disposition (see e.g., Presley v. Georgia (09-5270) and Wellons v. Hall (09-5731)).

Among, the relisted cases is a plea for review from former Panama military dictator Manuel Noriega.  Noriega v. Pastrana, (09-35), has, remarkably, been relisted for the tenth time.  The other cases which were relisted are:

• Mississippi v. City of Memphis (09-289)
• Chase Bank USA v. McCoy (09-329)
• Los Angeles County v. Humphries (09-350)

Supreme Court Rule Revisions for 2010

On January 12, 2010, the Supreme Court announced revisions to its rules, which will take effect in all proceedings on February 16, 2010. The Court’s press release announcing the changes can be viewed here.  The order and revisions can be reviewed here. 

The majority of the revisions are simply clarification of previously existing, but unstated, standard Court practice.  For example, the revision to Rule 37.3(a) clarifies the preexisting standard that the 10-day notice rule for amicus curiae briefs on the certiorari stage does not apply to amicus briefs on the merits.  Moreover, the revision explicitly stating that only members of the Supreme Court bar may file an amicus brief reflects a longstanding informal rule imposed by the Court. 

The Court did, however, make a few substantive changes. The cover of every brief must now contain an email address for the counsel of record in the signature block. In every brief containing an appendix, the brief table of contents must include an appendix index.  That index must list all items contained in the appendix.  For reply briefs on the merits, the Court reduced the word limitation from 7,500 to 6,000 words.

Cockle Law Brief Printing Company will continue to blog about any changes to the Supreme Court’s rules.

If you have any questions regarding the new rules, please leave a comment.

Oral Argument Schedule for January through March 2010

The Supreme Court has set the oral argument schedule for January, February and March of this year.  Among the standout cases are:

• Briscoe v. Virginia, No. 07-11191 (argument date January 11th)    In Briscoe, the Court will be confronted with the question of what procedure is required by the Confrontation Clause with regard to lab reports and whether its ruling just last Term in Melendiaz-Diaz v. Massachusetts, No. 07-591, should be reconsidered.  
• American Needle v. NFL, No. 08-661 (argument date January 13th)  The question in this case is whether the NFL has violated anti-trust legislation through its exclusive licensing agreement with Reebok. Virtually every major sports league in the country has sided with the NFL. 
• Skilling v. United States, No. 08-1394 (argument date March 1st)   The case involves two issues:  (1) whether former Enron executive Jeffrey Skilling’s actions constituted federal honest services fraud; (2) whether the pre-trial publicity surrounding the case violated Skilling’s right to a fair trial.
• McDonald v. City of Chicago, No. 08-1521 (argument date March 2nd)  Perhaps the biggest case of the year will decide whether the Second Amendment right to bear arms applies with equal force to state law.  In McDonald, the Court could reconsider a notorious nineteenth century ruling.
• Kiyemba v. Obama, No. 08-1234 (argument date March 23rd)     The Court will decide whether habeas corpus courts can release Guantanamo Bay prisoners from custody, and specifically, release from custody inside the United States. 

Overall for the Term, 75 argument slots have been filled (this includes Citizens United, No. 08-205, which is a carryover from last Term) and all but three of the cases granted for this Term have been scheduled for argument.