Juatice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night.  The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account by reporter Pete Williams.  Other news organizations also were reporting that Souter has made his decision not to continue serving.

By leaving office this summer, Souter will be giving President Obama time to select and seek Senate approval of the new Chief Executive’s first appointee to the Nation’s highest court before the Court returns for a new Term on Oct. 5.  That process could be slowed, however, if the President chooses a nominee who stirred strong opposition among conservatives.  With Democrats in control of the Senate, however, Obama’s choice almost certainly would win approval.

Even if the President were to pick a decidedly liberal new Justice, it would not bring a strong shift in the current Court’s direction, since four conservatives along with their sometime ally, Justice Anthony M. Kennedy, tend to control outcomes on many key issues.

Although there has been wide speculation that Souter would leave the Court fairly soon, he has not confirmed those reports, and neither have his colleagues or the Court’s staff.  He long has been understood to be uncomfortable living in Washington, preferring to return as often as he can to his rural home in New Hampshire.  He recently spoke of returning to Washington each year for a new Term as if it were something like a lobotomy.

A fomer state attorney general in New Hampshire and former state and federal judge who came to the Court with a reputation of being notably moderate and even conservative at times, Souter has become one of the most reliably liberal members of the Court.  His selection by President George H. W. Bush was promoted by White House aides at the time with skeptical conservative organizations as a “home run” for the issues that they care about.  His career as a Justice has not turned out that way, in any significant respect.

Just this week, for example, he mounted a sturdy defense during oral argument of Congress’ authority to continue rigorous federal enforcement techniques to assure minorities their right to vote, even as his conservative colleagues were expressing deep doubt about the constitutionality of the law at issue — the Voting Rights Act of 1965.

He has often sparred verbally, on the bench, with Justice Antonin Scalia, the philosophical leader of the Court’s conservative bloc.  And he has often aligned himself closely with the Court’s most liberal member, Justice John Paul Stevens.

During oral argument, he displays a keen perception of the core issues before the Court, displaying a refined intellect along with a lawyer’s tenacity to keep an advocate from straying far from what is at stake.  In some recent terms, he has seemed increasingly testy during oral argument, but that tendency appears to have eased somewhat in the current Term.

With word of Souter’s decision to retire, speculation in Washington will immediately begin to focus on the prospect that President Obama will make a symbolic appointment for that seat on the bench — perhaps the Court’s first Hispanic member, another woman Justice, or another African-American Justice.

The new President has had no time to make a record on the type of selections he will make for federal judgeships.  He will be under particular pressure from his liberal followers to pick someone at least as liberal as Souter.

Update 9 a.m.: Al-Marri’s plea agreement can be downloaded here.

Nearly two months after the Supreme Court took off of its docket a major case on presidential detention power, the individual involved — Ali Saleh Kahlah Al-Marri, a Qatari and Saudi national — has pleaded guilty to criminal charges in a regular federal court.  But the plea bargain disclosed on Thursday leaves unsettled a number of issues, and those raise the prospect that the case at some point may return to the Court.

In particular, Al-Marri’s lawyers indicated in the plea agreement that they will attempt to get credit for him against his prison term — up to 15 years — for the more than seven years he has been in federal civilian or military custody.  They apparently also will press for even less prison time, with the argument that he was abused and kept in inhumane conditions for much of the time he was being held in a Navy brig in South Carolina as an “enemy combatant.”

The Supreme Court had agreed last December to hear Al-Marri’s challenge to his detention (Al-Marri v. Spagone, 08-368), and was scheduled to hold oral argument on it this week.  However, the Obama Administration decided to move Al-Marri out of military custody, and obained criminal charges against him.  At the Administration’s request, the Court on March 6 ended the case (see this post, including a link to the Court’s order), and allowed Al-Marri’s transfer to civilian custody for trial on two criminal charges.  The Court formally closed tje detention case on April 9, sending the documents back to the Fourth Circuit Court; the Circuit Court’s decision against Al-Marri had been vacated by the Justices.

On Thursday, in U.S. District Court in Peoria, Ill. — the city where Al-Marri had been living and where he was first taken into federal custody in late 2001 — the former detainee pleaded guilty to one of the two counts against him: conspiracy to provide “material support” to the Al-Qaeda terrorist network.  (A Justice Department news release on the plea is here, and a statement by Attorney General Eric H. Holder, Jr., is here.)

U.S. District Judge Michael M. Mihm has set sentencing for July 30.  The Justice Department said Al-Marri “faces up to 15 years imprisonment, a $250,000 fine, a life term of supervised release, and a $100 mandatory special assessment.”  The Justice Department signaled in the plea agreement that it “reserves the right to oppose” any claim that Al-Marri should get less than a 15-year prison term.  And that is where future controversy may center.

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A new StatPack analyzing the opinions released through the April sitting is available for download here. This includes:

• Opinion Authors by Sitting
• Circuit Scorecard
• Decisions by Final Vote
• Frequency in the Majority
• Justice Agreement
• Justice Agreement for Non-unanimous Cases

The chart of Questions Presented has been updated to include the most recent opinions, available here.

Some notable points:

*Only one case is outstanding from the November sitting–Melendez-Diaz v. Massachusetts (07-591). Three cases are outstanding from December–Haywood v. Drown (07-10374); Ashcroft, Former ATT’Y Gen. v. Iqbal (07-1015); and AT&T Corp. v. Hulteen (07-543). Three cases are also outstanding from January–Coeur Alaska (07-984/07-990); Montejo v. Louisiana (07-1529); and Boyle v. U.S. (07-1309).

*Justice Anthony M. Kennedy has only authored two opinions thus far–Bartlett v. Strickland (07-689) and Negusie v. Mukasey (07-499)–but has most frequently joined the opinion of the Court. He’s dissented in just three cases–Arizona v. Gant (07-542); Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (07-615); and the per curiam summary ruling in Spears v. United States (08-5721).

*Justice John Paul Stevens is winning the contrarian award so far. He’s been in the majority least frequently–32 out of 48 opinions, or 66.7%–and has the highest rate of disagreement with other justices. He’s disagreed completely with Justice Antonin Scalia and Justice Clarence Thomas in 48% of cases and with Chief Justice John G. Roberts and Justice Samuel A. Alito in 46%. In comparison, at this point in OT07, Justice Stevens had disagreed with the conservative justices in 21%-36% of cases. Justice David H.  Souter is close behind–he’s been in the majority in only one more case than Justice Stevens and has similarly high rates of disagreement with the conservative justices.

Stanford student Tiffany Cartwright summarizes Tuesday’s oral argument in Forest Grove v. TA.

At Tuesday’s oral argument in Forest Grove School District v. T.A., the Supreme Court considered whether the Individuals with Disabilities Education Act (IDEA) categorically bars tuition reimbursements to parents who place their child in private school without the child first receiving special education services from a public school .

Gary Feinerman appeared first for petitioner Forest Grove. Although he began by discussing the plain language of the statute and the implications of the Spending Clause (the two major arguments in Forest Grove’s merits brief), Justice Ginsburg quickly steered the argument toward the practical implications of the case, asking if a child who does not receive a “free appropriate public education” (FAPE) because a school district failed to provide services at all would ever be entitled to reimbursement.

No, Mr. Feinerman argued. If Congress had meant for any child who did not receive a FAPE to be entitled to reimbursement, it would not have bothered writing the express provisions addressing tuition reimbursement in 20 U.S.C. § 1412(a)(10)(C)(ii)-(iv). If a school makes an incorrect determination about a child’s diagnosis, he continued, that can be remedied by other provisions within the IDEA, which provide strict time limits for administrative review – although, as Justice Souter then pointed out, if judicial review is sought after administrative remedies have been exhausted, there is no time limit whatsoever.

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 Stanford student Scott Noveck summarizes the opinion in Kansas v. Ventris.  Briefs in the case are available here, on SCOTUSwiki.

In its decision Wednesday in Kansas v. Ventris (No. 07-1356), the Supreme Court ruled that the government may impeach a defendant’s testimony using statements obtained during an interrogation that violated his Sixth Amendment right to counsel, even though the prosecution would be barred from using such tainted evidence as part of its case in chief.

The case arose after respondent Donnie Ray Ventris and his companion, Rhonda Theel, confronted Ernest Hicks in Hicks’s home.  Hicks was shot and killed during the confrontation, and Ventris and Theel made off with several hundred dollars in cash and other possessions.  After they were arrested and charged with murder, aggravated robbery, and several lesser offenses, Ventris and Theel each claimed that the other was responsible for pulling the trigger and killing Hicks.  The police placed Ventris in a prison cell together with a jailhouse informant, who was offered a lesser sentence in his own case in exchange for reporting any incriminating statements made by Ventris.  The informant subsequently told the police that when he asked Ventris what was “weighing in on his mind,” Ventris admitted to being the shooter.  When Ventris took the stand at trial and blamed the shooting on Theel, the state called the informant to testify about this prior contradictory statement.

Upon Ventris’s objection, the state conceded that it had violated his Sixth Amendment rights when it recruited an informant to question him in the absence of counsel, but it contended that the alleged statements were nonetheless still admissible when used for impeachment.  (The Court accepted the state’s concession that its actions violated the Sixth Amendment, but emphasized that it did so “without affirming that this concession was necessary.”)

In an opinion by Justice Scalia, the Court held that evidence obtained in violation of the Sixth Amendment right to counsel is admissible for purposes of impeachment, even though it would not be admissible if offered as part of the prosecution’s case in chief.  Scalia began by dividing the right to counsel into two components.  The “core” component is a trial right, which guarantees that the prosecution’s case will be subject to “meaningful adversarial testing” at trial.  The second, peripheral component is the Massiah right “to be free of uncounseled interrogation” at the pretrial stage (named after Massiah v. United States (1964)).  Scalia explained that unlike the Fifth Amendment right against self-incrimination, which directly governs what evidence may be offered at trial, the Massiah right is instead a “prophylactic rule[] forbidding certain pretrial police conduct.”  Because the constitutional violation at issue involves pretrial conduct rather than a trial right, admissibility is determined by “an exclusionary-rule balancing test,” which compares the gains from deterring police misconduct against the costs of excluding potentially truthful and relevant evidence.

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 Stanford student David Schwartz summarizes Tuesday’s argument in Cuomo v. The Clearing House Association. Note: David was on the Stanford team that along with Howe & Russell filed an amicus brief in this case on behalf of Lawyers’ Committee for Civil Rights Under Law et al.  Briefs for the case are at the SCOTUSWiki page here. 

Like the previous case addressing conflicts between state and federal bank regulators, Watters v. Wachovia Bank (2007), Tuesday’s oral arguments in Cuomo v. Clearing House Association (”CHA”) presented an intriguing and unusual line-up of Justices.  Moreover, the arguments were notable for what was not discussed: the Chevron doctrine was only brought up directly once during the entire argument, even though the parties dedicated about half of their merits briefs to the issue.  The oral arguments themselves started out somewhat unusually, with Justice Ginsburg beginning her questioning of the petitioner’s counsel, New York Solicitor General Barbara Underwood, on an issue barely discussed in the parties’ briefs:  whether the state law at issue extended authority to the New York state bank superintendent, rather than the actual party here, the Attorney General.

But the argument quickly transitioned into one of the main issues of the day – whether allowing state attorneys general to enforce state laws would force a national bank to deal with 51 regulators, and whether Congress, in constructing the current statutory structure, was trying to avoid this conflict.  Underwood (supported, at times, by Justice Scalia) had three responses to this argument.  First, for any specific loan transaction a national bank would only be subject to two regulators, the Office of the Comptroller of the Currency (”OCC”) and the state attorney general for the specific state in which the loan occurred.  Second, if the state’s enforcement method actually conflicted with the OCC’s methods, that would present a case of conflict preemption, an issue not before the Court.  And third, the OCC’s allegedly exclusive powers exist among a greater ecosystem of enforcers, including individuals, other federal agencies, and other state agencies as well; thus, the OCC already must deal with potentially conflicting interpretations from other entities besides state attorneys general.

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No oral arguments are scheduled and no non-capital orders are expected to be issued from the Court today. If any orders are issued in pending cases, we will post them promptly.

The transcript of oral argument in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322) is available here.

Analysis

With Justice Anthony M. Kennedy voicing concern over Congress intruding on the sovereignty of some states but not others, the Supreme Court on Wednesday looked for ways to put some check on federal management of state and local elections systems even when that power is used to assure minorities’ voting rights.

The Court’s oral argument on the constitutionality of Section 5 of the Voting Rights Act of 1965 showed vividly that Kennedy almost surely holds the decisive vote. And, just as clearly, he put his concerns about the law on full display, talking of the burdens on the states and the differing treatment of them, even while saying that no one questions the ”essentiality” of some federal role against racial bias in voting procedures.

With other developments during a hearing that ran 11 minutes beyond the allotted hour, it seemed entirely likely that the Court could interpret more generously a part of Section 5 that would let political jurisdictions out from under it if they have a record against discrimination.  An expanded reading of the law’s “bailout” provision was extensively explored, perhaps as an alternative to nullifying Section 5 outright.

The hearing ran for 15 minutes — half of the time available to the challengers of Section 5’s constitutionality — before the Court moved away from discussing the “bailout” provision and turned to the constitutionality of the 25-year extension of Section 5’s mandate that states and local governments covered by it must get federal permission for any change in voting practices.

Early on in the discussion of the “bailout” option, Justice Kennedy commented that the Court has “some latitude” in interpreting the law, and hinted that the Court might use that discretion to find a way to make it more practical for a government unit subject to the law to conduct its elections.  He also suggested, later, that if the “bailout” provision were found to be “an illusion,” the Court might make read the Act in a way that would make it work.

A focus on Kennedy’s reaction was evident, after other Justices clearly seemed to be lining up — perhaps in equal but opposing blocs — on Congress’ power to keep Section 5 on the books for another generation.

If, in fact, it turns out that there are four votes to strike down the extension of Section 5, the question would remain whether Justice Kennedy would be willing to put himself in the position of providing a majority to invalidate a statute that even he conceded had been “very effective.” He provided some reasons to doubt that he would — if there were an acceptable alternative. And, in the past, he had said that racial bias is a continuing problem in American society.

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Audio for today’s argument in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322) will stream at approximately 11:30 a.m. at C-SPAN.

The Court has released two opinions today.

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here. Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

The blog will have more analysis after this morning’s argument.

Today is the final day of oral argument of the 2008 Term. At 10 a.m., the Court may release the opinion in one or more pending cases.

Following the release of any opinions, the Court will hear argument in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (08-322), on the constitutionality of Congress’ 25-year extension of Section 5 of the Voting Rights Act of 1965.  Gregory S. Coleman of Yetter, Warden & Coleman, in Austin, Texas, will argue for NAMUDNO. Neal K. Katyal, Deputy Solicitor General will argue 20 minutes for the United States and Debo Adegbile of the NAACP Legal Defense Fund in New York will argue 10 minutes for the intervenor-appellees.

Deepening a split among lower courts, and thus adding to chances the Supreme Court will be drawn back into the dispute, a federal appeals court on Tuesday narrowed significantly the government’s power to block lawsuits altogether by claiming the need to protect “state secrets.”  It did so by proclaiming an important role for judicial power “in the context of secret Executive conduct.”

The ruling by the Ninth Circuit Court in Mohamed, et al., v. Jeppesen Dataplan, et al. (docket 08-15693), renews a controversy over the federal courts’ role in judging the legality of the government’s secret “rendition” program of picking up terrorism suspects abroad and shipping them to other countries for interrogation and, sometimes, torture.  The Supreme Court turned down the first case on the “rendition” program 18 months ago (El-Masri v. U.S., 06-1613), but the issue now seems sure to return.

The Ninth Circuit’s decision in Mohamed involves a lawsuit by five foreign nationals, who have sued a San Jose-based air transportation firm, Boeing subsidiary Jeppesen Dataplan, Inc., contending that it provided the planes and flights to the Central Intelligence Agency to move detainees to foreign destinations after their capture, knowing that they would be mistreated.  A federal judge threw out the case after the Bush Administration invoked the “state secrets privilege” — a claim that the Obama Administration has since backed.

Reinstating the lawsuit, at least to allow it proceed in initial court stages, the Ninth Circuit issued a decision that conflicts directly with the Fourth Circuit Court’s ruling in El-Masri on one crucial point.

The Fourth Circuit said a lawsuit by one claiming to have been a “rendition” victim can’t go forward if secrets form “the very subject matter” of the program. The Ninth Circuit, however, said that a lawsuit cannot be stopped at the outset even if secret information abounds in the case, so long as there is evidence that could be brought out that is not secret.

The “state secrets privilege,” the Ninth Circuit ruled, applies only to evidence — one item at a time.  If an item of evidence is a secret, it will be kept out of the case.  But if the information about government action is not secret, it can be offered and tested in court, it said. “The state secrets doctrine,” it said, “applies to evidence, not information.”

Thus, it went on, even if the government claims that information about the “rendition” program is classified, that is no bar to a court exploring specific evidence that is not itself a secret.  “The question is which evidence is secret and may not be disclosed in the course of a public trial,” the Circuit Court said.

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Stanford student Martine Cicconi summarizes yesterday’s argument in Bobby v. Bies. Filings in the case are available at SCOTUSWiki here.

At yesterday’s oral argument in Bobby v. Bies, the Supreme Court considered the effect of collateral estoppel on a state’s capacity to contest an inmate’s mental retardation in a post-conviction Atkins hearing.

Arguing for petitioner David Bobby, Ohio Solicitor General Benjamin Mizer began by noting that double jeopardy does not preclude the state from litigating Bies’s mental state for three reasons: Bies was never “acquitted” of the death penalty; there was no successive prosecution; and the state did not determine the Atkins issue in a prior proceeding.

Justice Kennedy began by asking what the state would prove in a subsequent hearing. Even presuming that preclusion did not apply, Kennedy wondered, why re-litigate the issue? Mr. Mizer answered that the standard Ohio developed in the wake of Atkins for determining mental retardation contains several elements that were not addressed in Bies’s trial or direct appeal: in particular, the court did not consider whether, in addition to having a low IQ, Mr. Bies shows substantial limitations in adaptive skills. Moreover, preclusion cannot apply because the state courts first considered Bies’s mental competency as a possible mitigating factor rather than as a complete bar to capital punishment. Because Atkins constitutionalized a clinical judgment as to retardation, the state has a stronger incentive to aggressively litigate the determination than it did before Atkins became law.

Focusing on Mr. Mizer’s use of the clinical definition of mental retardation, Justice Souter asked why preclusion would not apply, because a determination of a defendant’s IQ was required even before Atkins. Mr. Mizer answered that although the court necessarily had to determine Bies’s IQ, that determination was not necessary to the conclusion that Bies should be sentenced to death.

Justice Ginsburg then turned to the appellate court’s review of a death sentence. Before Atkins, she asked, would the state engage in an adversarial process at the appellate level to contest a finding of retardation? Mr. Mizer responded that, although the prosecutor could have vigorously contested the finding of mental retardation, there was little reason to do so. The aggravating factors were persuasive and likely to outweigh whatever force Bies’s mental competency held as a mitigator.

Finally, Justice Kennedy – appearing concerned about the sanctity of Atkins – asked whether the state had “an independent obligation to ensure itself that [Bies's] IQ is adequate” before executing him. Mr. Mizer responded that the state would indeed answer that question consistent with Atkins, and that the proper venue for the determination was the yet-unconvened hearing.

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The transcript of oral argument in Forest Grove School District v. T. A. (08-305) is available here.

The transcript of oral argument in Cuomo v. The Clearing House Ass’n, L.L.C. (08-453) is available here.