News on the Court’s opinion, issued yesterday, in Smith v. City of Jackson [disclosure: Goldstein & Howe, P.C. for petitioners]:
Madeleine Brand of NPR and Emily Bazelon of Slate;
Linda Greenhouse of The New York Times;
Charles Lane of The Washington Post;
Tony Mauro of Legal Times;
Warren Richey of The Christian Science Monitor;
David G. Savage of The L.A. Times;
Nina Totenberg of NPR; and
Hope Yen of the AP in The Boston Globe.

Tony Mauro of Legal Times has this article on how the death of Johnnie Cochran Jr. may affect the Supreme Court case in which he was the respondent.

We’re advised (by a student in Erwin Chemerinsky’s class, who sent along a helpful note) that the Court has called for briefing on the mootness question, with a brief from Cochran’s lawyers in seven days and Tory’s lawyers three days after that.

Here is the most recent stay request in the Schiavo case. UPDATE at 11:18pm: We are advised that the application has been denied.

This week, we received favorable rulings in three cases on which we worked with students. So we want to send our congratulations.

Today, the Supreme Court ruled in Smith v. City of Jackson that the ADEA recognizes disparate impact claims. We did the case with the Stanford Supreme Court Litigation Clinic, in which we are instructors with Pam Karlan. Smith was the Clinic’s first cert. grant (of four in a row). The students on the team at the cert. stage were William Adams and Jen Thomas (who graduated last year) and Mike Abate. The opening merits brief was done over the summer, and Meaghan McLaine (having just graduated from Harvard) worked on the case. Mike Abate and Lee Reeves of Stanford then worked on the merits reply and argument prep.

On Monday, the Supreme Court denied cert. in two cases in which we worked with students on the brief in opposition. These were great cert. denials because both petitions seemingly had a very good chance of being granted. Pam Karlan led the team in No. 04-856, City of Evanston v. Franklin (a case involving the rights of government employees who invoke their right against self-incrimination). The Stanford students on the case were Mike Abate, Rachel Kovner, and Julia Lipez.

The Court also denied cert in No. 04-806, Arkansas v. Jolly (a Sixth Amendment speedy trial case), in which we did the brief in opposition with our winter term class at Harvard. The students on that team were Won Shin and Neel Sukhatme.

Three petitions for certiorari that we did with the students are now pending.

I’ve been asked whether I think that the death of Johnny Cochran will moot this case, a defamation action in which a California state court enjoined the petitioner from saying anything about Cochran. If this were a defamation case in federal court (say, on diversity jurisdiction) and the injunction were that simple, I would say “yes” because the case only seeks prospective injunctive relief and defamation claims do not carry beyond death.

But the case has two complications. First, the injunction is broader. It prohibits Tory from saying anything about Cochran or his law firm, which presumably continues to operate for the time being. (But to add a further layer of complication, this aspect of the injunction was entered despite the fact that the law firm wasn’t even a party to the defamation case.) The injunction also doesn’t say anything about expiration upon Cochran’s death. Indeed, the petitioner flagged this issue in his opening brief.

Second, the Court’s jurisprudence on state court cases becoming moot is muddled. Here is the most recent substantial statement on the issue, from ASARCO v. Kadish, 490 U.S. 605 (1989):

“The Court’s treatment of cases that become moot on review from the lower federal courts, as distinct from those that become moot on review from state courts, is illuminating on this point. In the former situation, the settled disposition of a case that has become entirely moot is for this Court to ‘vacate the judgment below and remand with a direction to dismiss.’ United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). The power to make that disposition is predicated on our ’supervisory power over the judgments of the lower federal courts,’ which ‘is a broad one.’ Id., at 40. In the latter situation, on review of state judgments, the same disposition is not made. Traditionally, where the entire case had become moot, the Court vacated the judgment below and remanded for such further proceedings as the state court might deem appropriate, as in DeFunis v. Odegaard, 416 U.S. 312 (1974), since the state courts, not bound by Article III, were free to dispose of the case in a variety of ways, including reinstatement of the judgment. More recently, however, the regular practice in the latter situation has been to dismiss the case and leave the judgment of the state court undisturbed, which evinces a proper recognition that in the absence of any live case or controversy, we lack jurisdiction and thus also the power to disturb the state court’s judgment. See, e. g., Kansas Gas & Elec. Co. v. State Corp. Comm’n of Kan., 481 U.S. 1044 (1987); Times-Picayune Pub. Corp. v. Schulingkamp, 420 U.S. 985 (1975).”

My view is that if the Justices are anxious to decide the case, they will say that it is sufficient for Article III purposes that the injunction extends to Cochran’s law firm. That would be consistent with the Court’s suggestion Erie, PA v. Pap’s A.M., 529 U.S. 277 (2000), that the relevant question in these circumstances is whether the petitioner retains an interest in having the state court’s judgment overturned. (Justice Scalia’s dissent in Pap’s has the better of the argument in my opinion.) If the Justices are less certain, they will remand for the California courts to address the scope of the injunction and the possible mootness of the case.

For other views on this question, see these posts of Howard Bashman and Eugene Volokh. Also, see this article by Tony Mauro (via How Appealing). And this Explainer piece on Slate.

The Eleventh Circuit has denied an apparently last-minute attempt to restore the feeding tube for Theresa Marie Schiavo, a brain-damaged Florida woman whose parents have tried repeatedly – and unsuccessfully – to get federal courts including the Supreme Court to come to their aid.

The latest development has brought the first comments by a federal judge that Congress acted unconstitutionally when it passed a special law opening the federal courts to a challenge by Mrs. Schiavo’s parents to state court orders on withdrawal of nutrition and hydration for their daughter – now apparently nearing death.

U.S. Circuit Judge Stanley F. Birch, Jr., argued in an opinion released Wednesday that the new law, Public Law 109-3, is “an unconstitutional infringement on the core principles of separation of powers,” so federal courts could not exercise jurisdiction in the dispute. (Judge Birch was named to the Eleventh Circuit by the first President Bush in 1990.)

His comments came as the Eleventh Circuit, over the dissents of two judges, refused to grant rehearing en banc in the latest case brought by the parents (docket 05-11628). A panel of the Circuit Court last week said the parents could not make a case, and thus were not entitled to any emergency relief. Eleven judges participated in the denial on Wednesday, but only two noted dissents.

(Thanks to Howard Bashman of How Appealing blog for links to the Eleventh Circuit orders.)

News on the Court’s opinion, issued today, in Smith v. City of Jackson [disclosure: Goldstein & Howe, P.C. for petitioners]:
This Reuters report; and
The New York Times has this AP article.

News on yesterday’s oral arguments in MGM v. Grokster:
Chris Anderson has this opinion piece in The L.A. Times;
Chris Baker of The Washington Times;
Emily Bazelon of Slate;
Joan Biskupic of USA Today;
Hiawatha Bray of The Boston Globe;
the AP’s Ted Bridis in The Chicago Tribune;
Jan Crawford Greenburg of The Chicago Tribune;
Linda Greenhouse of The New York Times;
UPI’s Gene J. Koprowski in The Washington Times;
Jonathan Krim of The Washington Post;
Carolyn Lochhead of The San Francisco Chronicle;
Jim Puzzanghera of Knight Ridder;
Jane Roh of Fox News;
David G. Savage of The L.A. Times;
Warren Richey of The Christian Science Monitor;
Nina Totenberg of NPR;
The Washington Post has this editorial piece; and
The L.A. Times has this editorial.

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The Supreme Court, in a sweeping legal victory for older workers, ruled 5-3 Wednesday that employees need not show intentional discrimination against them based on age in order to win a case under federal law. They can prevail on a theory that an employer’s job practice had a more negative impact on older than younger workers, the Court said.

Generally speaking, it is much easier to prove that bias resulted in practical application of an employer’s policy than that the employer specifically intended to discriminate. Thus, the new decision could be a major boon to discrimination cases affecting the rights of more than 70 million workers who are 40 and over — about half of the nation’s civilian work force.

Resolving a conflict among lower courts on the coverage of the Age Discrimination in Employment Act, the Court said that proof of discriminatory intent is not required. But, it said, the scope of ADEA’s protection in disparate impact cases is narrower than under another anti-discrimination law, Title VII of federal civil rights law, because ADEA sometimes allows employers to adopt policies that treat workers differently if those are based on factors other than age.

The Court, in fact, ruled against the specific bias claim in the case of Smith v. City of Jackson (03-1160)– a claim that older police officers and public safety dispatchers were treated unequally under the city’s performance pay plan. Thus, the Court affirmed the Fifth Circuit’s ruling against those 30 individuals, even while overturning the Circuit’s view that ADEA only covers intentional bias in the workplace. (Marty Lederman’s post below provides links to the Court’s opinions in the case.)

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The Court issued opinions today in these three cases:

No. 03-1696, Exxon Mobil Corp.v. Saudi Basic Industries, a Rooker/Feldman decision unanimously reversed and remanded in an opinion written by Justice Ginsburg.

No. 03-9046, Rhines v. Weber, unanimously vacated and remanded in an opinion written by Justice O’Connor. Justice Stevens concurred, joined by Justices Ginsburg and Breyer. Justice Souter also concurred but for one “practical reservation,” also joined by Justices Ginsburg and Breyer.

No. 03-1160, Smith v. City of Jackson, affirmed unanimously, but also deciding, by what is in effect a 5-3 vote, that the Age Discrimination in Employment Act does recognize disparate impact claims. Justice Stevens wrote the principal opinion,which was joined in full by Justices Souter, Ginsburg and Breyer and in large part by Justice Scalia. Justice Scalia concurred in all but Part III and concurred in the judgment. Justice O’Connor, joined by Justices Kennedy and Thomas, concurred in the judgment, but in effect dissented on the central disparate-impact question. The Chief Justice did not participate, but (in light of his previous votes on the question) almost surely would have voted with Justice O’Connor.

This is another in a series of reports on the aftermath of the Supreme Court’s June 28 decision in the case of Rasul/Al Odah v. Bush.

In a ruling almost certainly generating a new controversy headed for higher courts, a U.S. District judge in Washington on Tuesday barred the Pentagon from sending overseas 13 Yemeni nationals being held as terrorist suspects at the U.S. Naval Base in Guantanamo Bay, Cuba. U.S. District Judge Henry H. Kennedy, Jr. issued a preliminary injunction requiring the government to give the detainees’ lawyers 30 days’ advance notice “prior to transporting or removing” any of the individuals from Guantanamo.

This is the latest in a series of District Court orders prompted by recurring reports that the Bush Administration has made plans to ship many of the Guantanamo detainees to other countries, perhaps for further detention or prosecution. The detainees fear that such transfers may put them in countries where they will be tortured; the government has attempted to give assurances that torture would not occur.

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The Supreme Court put on public display Tuesday two conflicting reactions to the apparently widespread practice of downloading copyrighted songs and movies from the Internet: a concern that software makers may be too enthusiastically encouraging the habit, and a concern that copyright law not be made so restrictive that it stifles new surges of technology creativity. The Court also showed some signs of unease with the adequacy in the Internet age of the central precedent at issue, the 1984 ruling in the Sony Betamax case.

In a one-hour hearing on the biggest Internet test case yet, Metro Goldwyn Mayer, et al., v. Grokster, et al. (docket 04-480), a number of Justices seemed attracted to the idea of letting copyright owners go after software developers on a theory that they are “actively inducing” theft of copyrighted works by computer users linked by that software.

Richard G. Taranto, a Washington lawyer for person-to-person, file-swapping software developers Grokster and SteamCast Networks, said copyright owners remained free to bring such an inducement claim and seek damages for it, if the case is sent back to District Court for a trial. (The case reached the Supreme Court after summary judgment in the District Court, affirmed by the Ninth Circuit.)

But Donald B. Verrilli, Jr., representing the movie studios, music recording studios and other owners of copyrighted works, countered that an “active inducement” remedy would be seriously deficient in putting a stop to the practice of file theft. He cautioned the Court not to affirm the Ninth Circuit on the key issue in the case — the meaning of the Sony Betamax decision as it defined secondary copyright infringement — because that would give infringers “a perpetual license to keep going forward, and not ever have to do anything to check the practice” of massive file-downloading.

What the P2P software designers want from the Court, Verrilli protested, is “a rule of immunity: all they have to do is speculate that there will be some non-infringing uses [of their product], and then you can go right on infringing.”

Several members of the Court — but especially Justices Antonin Scalia, Stephen G. Breyer and David H. Souter — seemed troubled about the potential impact of a tightening of copyright law on small inventors — “the guy in the garage,” as Souter put it.

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The Supreme Court, splitting 5-4, on Tuesday significantly expanded the scope of protection against sex-based discrimination under Title IX of federal civil rights law.

The Court ruled that a teacher who is disciplined after complaining about sex discrimination against students has a legal right to bring a retaliation claim under Title IX. (Marty Lederman, in a post below, provides links to the majority and dissenting opinions in Jackson v. Birmingham Board of Education, docket 02-1672.)

Overturning the Eleventh Circuit, the Court said that such a teacher has a private right to bring a lawsuit after complaining of sex bias — not against the teacher, but against the students — where the school system’s retaliation against the teacher was “an intentional response to the nature of the complaint” — that is, sex discrimination.

Title IX, the Court said in the opinion written by Justice Sandra Day O’Connor, does not require that the victim of the retaliation also be the victim of the discrimination that the teacher had targeted.

“Teachers and coaches…are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators,” the Court majority said. “Indeed, sometimes adult employees are the only effective adversaries of discrimination in schools.”

The Court today issued opinions in the following two cases:

No. 03-855, City of Sherrill v. Oneida Indian Nation, reversed and remanded 8-1, in an opinion written by Justice Ginsburg. Justice Souter concurred with a one-paragraph “qualification.” Justice Stevens dissented.

No. 02-1672, Jackson v. Birmingham Board of Education, reversed 5-4, in an opinion written by Justice O’Connor. Justice Thomas dissented, joined by the Chief Justice and by Justices Scalia and Kennedy.

[Note to GC sticklers-for-detail: This post was completed at 10:19.]

On Wednesday, the Supreme Court will hear oral argument in Wilkinson v. Austin, No. 04-495. This case involves the transfer of an Ohio state prisoner to a “supermax” prison facility based on prison officials’ predictive assessment of the security risk that he presents to prison staff and other inmates. The parties agree that the prison regulations create a Fourteenth Amendment liberty interest in avoiding placement in a supermax facility. Accordingly, the issue before the Supreme Court is what process is due an inmate faced with a transfer to supermax. More specifically, the Supreme Court granted certiorari to resolve the question of whether prison regulations meeting the requirements specified in Hewitt v. Helms, 459 U.S. 460 (1983), satisfy the prisoner’s due process rights.

The Sixth Circuit’s decision is available here. James M. Petro, the Ohio Attorney General, will argue on behalf of petitioner Reginald Wilkinson. Petro will share time at oral argument with Deanne E. Maynard, an Assistant to the Solicitor General, who will argue on behalf of the United States as amicus curiae. Jules Lobel will argue on behalf of respondent Charles Austin.

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Chief Justice William H. Rehnquist, continuing treatment for thyroid cancer, went to Arlington Hospital on Sunday to have “a problem” remedied in a tube that had been inserted last October during a tracheotomy.

Here is the statement issued by the Court Monday afternoon:
“Yesterday, the Chief Justice had a problem with his tracheotomy tube. He went to Arlington Hospital by ambulance and was treated on an out-patient basis.”

There was no elaboration on the nature of the problem or of the treatment provided.

Rehnquist was on the bench Monday morning, and participated fully in the oral arguments. There was no notable change in his condition or appearance from last week.