Court Grants Four Petitions, Hears Argument in Christian Legal Society and Quon

The Court granted four cert petitions yesterday morning.  The issues presented in those petitions included bankruptcy matters, the Court of Federal Claims’ jurisdiction, the first-sale doctrine of the Copyright Act and in what circumstances an employer is liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision.  See Ransom v. MBNA, America Bank, No. 09-907; United States v. Tohono O’odham Nation, No. 09-846; Costco v. Omega, No. 08-1423; and Staub v. Proctor Hospital, No. 09-400. [Note: the petition, brief in opposition and reply brief in Ransom were printed at Cockle].

The Court also heard argument in cases raising Constitutional questions.  In Christian Legal Society v. Martinez, No. 08-1371, the Court must decide whether student’s First Amendment rights are violated when a public university denies school funding and benefits to a religious student organization because that organization requires members to agree with its core religious beliefs.  The second case—City of Ontario v. Quon, No. 08-1332—involves whether individuals who used government-issued pagers have a reasonable expectation of privacy in the contents of texts sent on those pagers.

The blogosphere continues to buzz over Justice Stevens’s replacement and the affect of his absence.  The Washington Post has, in recent days, reported on both Judge Diane Wood and Solicitor General Kagan.  And Bloomberg profiles the final member of the so-called “shortlist”: Judge Merrick Garland. Finally, Tom Goldstein at SCOTUS Blog explains at length how Justice Stevens’s departure could impact Supreme Court decision making especially in the areas of executive power and preemption. 

Quon Reply Brief

The merits reply brief in City of Ontario v. Quon, No. 08-1332, was filed yesterday.  The brief can be viewed here.

Quon Bottom Side Brief Filed

The Respondents’ brief in City of Ontario v. Quon, No. 08-1332, was filed yesterday.  Quon involves whether the Fourth Amendment permits a city to search government-issued pagers. 

 The Supreme Court will conduct oral arguments in Quon on April 19th.

A Tour of Talent: My Weekend Trip to Harvard University

Ann Marie and Shon R Hopwood at Memorial Church, Harvard University

My wife Annie and I had a wonderful trip to Harvard University.  We stayed at the famous Preacher’s Suite in Lowell House, and Sandy Alexander of WilmerHale was a gracious host.  The following is a recap of our trip.

We toured the Cambridge campus on Saturday.  I gave a short speech to a group of Harvard faculty and alumni at Memorial Church on Sunday morning. That evening the CBS Early Show taped Annie and me meeting Seth Waxman and Noah Levine of WilmerHale at a local Cambridge restaurant.  We had a quick dinner before shuffling back to Lowell House for a Q&A with Harvard undergrads. (Although once some of the law school students heard news of Seth’s appearance, a few of them snuck in as well.) 

First-year Harvard law school student, Sandra Ullman (who was amazingly smart and thoughtful), provided Annie and me with a tour of Harvard law school on Monday morning.  I was able to find a very old copy of Blackstone’s treatise, but unfortunately I could only view it behind glass.  We also observed a criminal law class from the back row.  The discussion was centered on R v Dudley and Stevens, (1884), the English case concerning a shipwreck, a murder and cannibalism on the high seas.  There the Court ultimately held that necessity is not a defense to murder. I enjoyed listening to students formulate answers to questions on necessity and was surprised with their ability to argue a position notwithstanding the unusual factual scenario.  We later had lunch with several of those students. The trip ended with a visit to the WilmerHale office in downtown Boston.    

I left Cambridge with several impressions.  The level of talent there is truly remarkable.  Everyone we had the pleasure of meeting was gifted in a number of areas.  Equally impressive was the level of collegiality there, given the diverse interests.  They made us feel like part of the family, especially at Lowell House.

For me, the highlight of the weekend was finally meeting my friends Noah and Seth in person.  Those two have played a profound role in my life. 

Seth Waxman, Shon R Hopwood, Noah Levine

Weekend Trip to Harvard University

My wife Ann Marie and I are traveling to Boston tomorrow for a three-day trip to Harvard University.  I have been asked to speak to a group of Harvard faculty and undergrad students, and on Monday, I will be sitting in on a criminal law school class.

The trip is exciting for a number of reasons.  For those of you who know my story, I worked with attorneys Seth Waxman and Noah Levine, both of WilmerHale, on the Fellers v. United States case.  Since Fellers ended, we have kept in contact and developed a friendship through a steady stream of telephone, mail, and email correspondence.  On Sunday, I will finally meet Seth and Noah face-to-face. And The Early Show on CBS will also be at Harvard taping part of my trip! 

Sandy Alexander of WilmerHale in Boston is sponsoring the trip.  I will post the details (and possibly some pictures) upon my return to Cockle on Wednesday

New York Times Article on Shon Hopwood

On several occasions we have had attorneys question how Shon is so knowledgeable about the Supreme Court, but yet, is not an attorney.  An article in today’s New York Times answers that question.  The article can be viewed here.

Both Cockle and Shon want to say thank you to all the Cockle clients who have emailed us with kind comments and support.  Those emails have continued our belief that Shon’s skill set benefits our clients in filing briefs to the Supreme Court. 

 ***Several legal blogs have also taken note of Shon’s story.  See SCOTUS Blog,  Volokh Conspiracy, and Above the Law. 

Supreme Court News for December 8th, 2009

Yesterday, the Court granted two cert petitions.  The first questions whether it is unconstitutional for a public college to deny school funding to a student religious group that limits its officers and voting members to those who accept its religious beliefs.   Christian Legal Society v. Martinez (08-1371).  The second petition involves another aspect of the Court’s watershed ruling in United States v. Booker, (04-104).  In Dillon v. United States, (09-6338), the Court must decide how the advisory federal guidelines apply at re-sentencing hearings.

Today, the Court heard argument in two out of the three cases that will decide the scope of the federal mail fraud statute. Black v. United States, (08-876) and Weyhrauch v. United States, (08-1196).  The additional mail fraud case, Skilling v. United States, (08-1394), will be argued sometime in March or April of next year.  A SCOTUS Wiki link with electronic forms of all the merits briefs filed in Black, Weyhrauch, and Skilling, can be found here.

The Court Takes Bankruptcy, Business and Tax Cases

On Monday, the Supreme Court granted three cert petitions.  One of those petitions involves what evidence bankruptcy courts must use in determining a debtor’s “projected disposable income” before calculating a Chapter 13 bankruptcy plan.  Hamilton Chapter 13 Trustee v. Lanning, No. 08-998.  The second petition asks the Court to determine whether the National Labor Relations Board may decide cases when only two of its five members are present.  New Process Steel v. National Labor Relations Board, No. 08-1457.  And the third petition questions whether state residents may commence civil actions in federal court against a state over tax breaks, when the action may intrude upon state tax systems.   Levin, Tax Commissioner of Ohio v. Commerce Energy, Inc., No. 09-223. 

 Both Hamilton and New Process Steel were printed by Cockle Law Brief Printing Company and the petitions can be viewed here and here.  The Court’s order list can be viewed here.

Your Petition and Anthrax Screening

        You’ve just over-nighted a petition for certiorari to the Supreme Court, and you’re eager for the Justices to rip open their individual copies tomorrow and start reading all about the case’s unjustness.  But not so fast.  A petition is considered filed the date it’s postmarked.  But the Justices won’t have a copy in hand until four to six days later.

        The culprit of the delay?  Off-site anthrax screening.

        So where is it done?  And why?  And how?

        I called the Court for answers, but was told simply, the Court “will not discuss the anthrax screening process … at all.”

        I did a little research of my own, and this is what I found.

        The anthrax mail scare began in the fall of 2001, coinciding with the September 11 attacks.  Five people died as a result of anthrax exposure and 18 others got sick.  Hundreds of people took preventative antibiotics to stave off any possible side effects.

        News and media organizations, post offices, and governmental buildings were hit the hardest.

        In late October of 2001, Supreme Court officials reassured the public that the Court building had not been contaminated with anthrax.  However, the toxic substance was found on an air filter at a mailroom in the building’s basement.  The Justices and 400 Court employees were tested for the bacteria and placed on a one-week course of antibiotics.  Test results came back negative for all employees.

        Nevertheless, the Supreme Court moved to a different building.  It was the first time the Justices convened outside the building since it was constructed in 1935.  The Justices met in the courtroom for the D.C. Circuit for a couple of days while the entire Court building was tested.

        Although it may not be clear exactly what the Supreme Court does with a document in the days before it reaches the Justices’ hands, or where it goes, or how it’s tested, the Court’s Rules do accommodate the anthrax screening process.  Rule 29 allows a petition to be considered filed when it’s handed to a third-party carrier, rather than the date the document arrives at the Court.  Rule 29.1 holds that “A document is timely filed if it … bears a postmark … showing that the document was mailed on or before the last day for filing ….”

        Bottom line: The Supreme Court’s anthrax screening process has no adverse effect on filing a document with the Court.  In fact, it may even aid you by allowing a document to be sent on the date it’s technically due.

        If you just can’t bear the four-to-six-day wait for anthrax screening, your only option is to hand-deliver the documents to the Court in an open, unsealed box.  For more information on how Cockle Law Brief Printing Co. can assist you with this process, please give us a call at 800-225-6964.

Noteworthy Postings of the Week

· Tony Mauro at The BLT: a post on Justice Sotomayor’s decision to join the cert pool.

 · Howard Bashman at HowAppealing: a post discussing an important environmental decision from the Second Circuit Court of Appeals.

· Eugene Volokh of The Volokh Conspiracy: a post discussing whether and to what extent corporations possess constitutional rights.

· SCOTUS Blog: a post detailing petitions that Tom Goldstein has given a reasonable chance of gaining Court review.

· Professor Douglas Berman at Sentencing Law & Policy: a post on a SCOTUS stay of execution for Texas death row inmate Kenneth Mosley.