Supreme Court Justice Ruth Bader Ginsburg spent a night in the hospital Wednesday after experiencing an “adverse reaction” to medication, the Supreme Court reported Thursday morning.  She had boarded a plane that was to take her to London where she and other members of the Court were to attend opening ceremonies this week for Britain’s new Supreme Court.

According to the Court’s statement: “Prior to the plane taking off, the Justice experienced extreme drowsiness causing her to fall from her seat.  Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution.”  After an examination, “she was found to be in stable health,” it added. Held overnight for observation, she was released Thursday morning, the statement said.

This marked the second time in recent days that the 76-year-old Justice was hospitalized after reacting to medication.  Late in September, she stayed overnight after feeling ill an hour after receiving an injection for an iron deficiency.  She returned to work the following day.

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Below, Akin Gump’s Scott Street recaps Wednesday’s oral argument in Perdue v. Kenny A.  Check the Perdue v. Kenny A. (08-970) SCOTUSwiki page for additional updates.

It became clear during oral argument in Perdue v. Kenny A.—in which the Court will decide whether a court can ever enhance an attorney’s fee award under Section 1988 based on the quality of representation and the results the attorneys obtain—that the parties’ arguments rest on two central points about the “lodestar” approach to calculating attorney’s fees:

• The State of Georgia believes that Section 1988 fee awards be measured against the “hours worked multiplied by hourly rate” calculation provided by the lodestar. 
• The respondent children, meanwhile, believe that the lodestar does not adequately consider the quality of an attorney’s work or the results that the attorney obtains. 

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Tuesday’s cert. grant in the case of former Enron executive Jeffrey Skilling continues to dominate the headlines.  Greg Burns of the Chicago Tribune comments on the grant, arguing that the decision to review Skilling’s conviction sets the stage for a decrease in fraud prosecutions under a widely used law prohibiting executives and government officials from depriving their clients and constituents of the “right to honest services.”  However, Burns points out that the Court’s decision not to consolidate Skilling’s case with two other “honest services” cases, Weyhrauch v. United States and Black v. United States, suggests that the “honest services” statute might not be thrown out altogether.   The piece also suggests that the outcome of the cases may have implications for the indictment of former Illinois Governor Rod Blagojevich. 

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No oral arguments are scheduled, and no non-capital orders are expected to be issued.

At oral argument in Padilla v. Commonwealth of Kentucky (08-651) on Tuesday, the Court considered whether the Sixth Amendment provides a remedy to defendants who have been misadvised by their attorneys.  Arguing on Mr. Padilla’s behalf, Stephen Kinnaird asserted that his client is entitled to relief because any advice given to a defendant by his attorney with regard to a guilty plea affects criminal liability, and therefore must meet competency standards.   Although the Justices expressed reservations concerning the precedent that might be set by such a decision, pressing him to draw a line between “the consequences that count and those that don’t,” Mr. Kinnaird assured them that the use of the Strickland test can address these contextual concerns.  Mr. Kinnaird also emphasized the importance of Strickland’s prejudice prong, asserting both that it was met in this case because Mr. Padilla had a reasonable chance of succeeding at trial and that the application of such a standard in similar cases would prevent courts from becoming overwhelmed by challenges to guilty pleas.  However, the Justices did express concern that such a ruling would place a burden on courts to inquire into the circumstances of every guilty plea.

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The transcript of oral argument in Alvarez v. Smith (08-351) is here.

The transcript in Perdue v. Kenny A. (08-970) is here.

The grant of certiorari in Skilling v. United States yesterday is dominating news and blog headlines.

As the New York Times reports, former Enron CEO Jeffrey Skilling is challenging his conviction under the federal law banning “honest services fraud,” or an attempt to “deprive another of the intangible right of honest services.”  Skilling claims the law is unconstitutionally vague, unless it is interpreted to mean that the defendant intended to derive private gain at the expense of his employer.  The government has conceded that Skilling’s actions to inflate Enron profits did not advance his private interests.  Yet Bloomberg points out the government’s claim that, for Skilling, “a victory on the honest services issue would leave intact his convictions on other securities fraud and conspiracy counts.”

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The Court will hear oral arguments this morning in two cases.

In Alvarez v. Smith, it will consider whether the Due Process Clause provides individuals whose personal property was seized by government authorities pursuant to a state criminal forfeiture statute with the right to an interim probable-cause hearing before the actual forfeiture hearing; former Akin Gump summer associate Alexis Grant, a 3L at the University of Michigan Law School, discusses the case here.

In Perdue v. Kenny A., previewed yesterday by Akin Gump’s Scott Street, the Court will consider whether a reasonable attorney’s fee award under a federal fee-shifting statute can ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation.

Below, Akin Gump’s Scott Street previews Perdue v. Kenny A., one of two cases to be heard by the Supreme Court on Wednesday, October 14. Check the Perdue v. Kenny A. (08-970) SCOTUSwiki page for additional updates.

It is tempting to think of Perdue v. Kenny A., in which the Supreme Court will hear oral argument on Wednesday, as just another case involving statutory interpretation.  In fact, the Court may ultimately treat it as such and resolve the case on narrow grounds.  But the case raises important questions about how civil rights should be enforced and what compensation lawyers should receive for enforcing them.  Thus, although Perdue has received less attention than other cases the Court has heard recently, and will hear this Term, it may have a greater impact on the future of civil rights litigation—no doubt something that former Solicitor General Paul Clement realized when he signed on as counsel of record for the respondents and agreed to argue the case on their behalf.

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The transcripts of oral arguments are here for Padilla v. Kentucky (08-651), here for Smith v. Spisak (08-724), and here for South Carolina v. North Carolina (138 Original).

Analysis

Last February, Justice Antonin Scalia launched one of the verbal broadsides for which he is so well known — this time, a blast at the federal “honest services” law, a law that dates from 1988.  Though that law “consists of only 28 words,” Scalia noted, it has been “invoked to impose criminal penalties upon a staggeringly broad swath of behavior, including misconduct not only by public officials and employees but also by private employees and corporate fiduciaries…Without some coherent limiting principle to define what ‘the intangible right of honest services’ is, whence it derives, and how it is violated, this expansive phrase invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs who engage in any manner of unappealing or ethically questionable conduct.”

Dissenting alone as the Court denied review in Sorich, et al., v. U.S. (08-410), Scalia said he would have granted review to “squarely confront both the meaning and the constitutionality” of the statute, known as Section 1346.  “Indeed,” he concluded, “it seems to me quite irresponsible to let the current chaos prevail.”

That was in February.  Since then, at least four Justices — the number it takes to grant review of a case — have been willing to “squarely confront” at least the meaning, if not also the constitutionality, of Section 1346, and to do so repeatedly.  Three times — once in May, once in June and once on Tuesday — the Court has voted to hear cases testing the scope of the “honest services” law. Each time, it has done so by turning aside arguments against review by the U.S. Solicitor General.

It now is appropriate, it seems, to ask the question: when the current Term of the Court has come to an end, what will be left of the federal law that makes it a crime to deprive someone of “honest services,” in the private or public sector?

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The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.  This was one of four cases granted review, to be argued early next year.  The Court, however, took no action on a significant new Guantanamo Bay detainee case, Kiyemba v. Obama (08-1234). (UPDATE: The Court will again consider the Kiyemba case at its next private Conference, next Monday, according to the Court’s electronic docket.)

The other newly granted cases raise these issues:  the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier); whether federal law on federal employees’ health benefits preempts a state court lawsuit filed against a government contractor administering such benefits (Health Care Service v. Pollitt, 09-38), and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).

The Skilling case puts before the Court the third case this Term on the proof that prosecutors must offer in order to win a conviction for failing to provide “honest services” to someone else — the public, a government agency, or one’s employer.  Two of those cases will be heard back-to-back on December 8, and the Skilling case is likely to be scheduled for argument in February or March.

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The Court has granted certiorari in the following four cases, and the briefs are now posted below.  The full order list is available here.

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Adam Liptak at NYT previews Black v. United States and Weyhrauch v. United States, the “honest services” cases that the Court will hear this term.  The “honest services” law is intended to ensure that officeholders and employees act solely in the best interests of their constituents and employers, but prosecutors have invoked it to address public policy problems that are not necessarily illegal – for example, a system that distributes jobs based on nepotism.  The government contends that such laws are critical to protecting intangible qualities, such as candor or loyalty; opponents believe it allows prosecutors too much discretion to pursue those whom they simply don’t like or with whom they disagree.

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The Court will hear oral arguments in three cases.

In Padilla v. Kentucky (08-651), it will consider whether the Sixth Amendment’s guarantee of legal counsel is met by a defense lawyer who misrepresents the deportation consequences of a guilty plea to his noncitizen client.  Anna Christensen of Howe & Russell (along with David Owens of Stanford) previewed the argument yesterday on SCOTUSblog.

In the first capital case to be argued this term, Smith v. Spisak (08-724), the Court will consider jury unanimity as an issue in finding mitigating evidence in a capital case.  John Vukicevich, a law student at Washington College of Law, discusses the petitioner’s and respondent’s briefs at the SCOTUSwiki case page linked above.

The final argument, in South Carolina v. North Carolina (138 Original), the Court will consider whether non-parties may join lawsuits originally between two states.  SCOTUSblog’s Lyle Denniston analyzed the issue this spring, when the Court ordered a hearing on the question.