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.

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.