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Friday, December 08, 2006

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! Time for the inside baseball on the second signed opinion of the Term, an early Christmas gift to terrestrial aliens with a penchant for narcotics possession. Only Justice Thomas played the Grinch as the sole dissenter in the Court’s 8-1 decision in Lopez v. Gonzales. In other action, the Court began filling its barren spring docket with a large batch of Thursday (??) grants, adding some antitrust and habeas flavor to the second half of the Term.

Lopez v. Gonzales, 05-547

Justice Souter’s majority opinion tidied up a 10-year-old circuit split in immigration law. The Immigration and Nationality Act dictates that a legal alien who commits an “aggravated felony” is subject to mandatory deportation, with no chance to petition for asylum or “cancellation of removal” by the AG-AG (Attorney General Alberto Gonzales). An “aggravated felony” is defined as a “drug trafficking crime,” which in turn is defined as “any felony punishable under the Controlled Substances Act.” The question was whether a state-law felony conviction falls within this definition, even if the crime would have been punishable only as a misdemeanor under the federal CSA. A classic example is simple cocaine possession, which many states punish as a felony, but the CSA treats as a misdemeanor. The Court was unimpressed with AG-AG’s argument that because possession is “punishable under the CSA” (albeit as a misedemeanor), a state-law possession felony is therefore a “felony [insert long pause here] punishable under the CSA.” Justice Souter thought the more natural reading omits the long pause, and thus covers only state-law crimes that are punishable as felonies under the CSA. He also noted that it would be incongruous to interpret the statutory category of “drug trafficking crime” to include possession offenses that have nothing to do with trafficking. For this, Justice Souter cited Lewis Carroll on Statutory Interpretation: “‘Humpty Dumpty used a word to mean just what he chose it to mean—neither more nor less,’” and [Congress], too, [is] free to be unorthodox . . . but [it] would need to tell us so.” Finally, the Court held, it would be odd for Congress to require Courts to look to state law to determine what is a “felony punishable under the CSA,” and we should not assume that Congress would introduce such a lack of uniformity into immigration law.

Justice Thomas dissented alone, refusing to abide Humpty Dumpty co-opting by the eight-justice liberal wing of the Court. Accepting the Government’s reading, CT accused the Court of taking “its own trip through the looking glass” by inserting the words “as a felony” after “punishable” and ignoring other statutes where Congress used “trafficking” to refer to possession offenses. He also noted that the CSA expressly defines “felony” as an “any federal or state offense classified by applicable federal or state law as a felony,” so the statute itself requires looking at the state-law classification of crimes.


Leegin Creative Leather Products v. PSKS, Inc., 06-480

This is the Ted Olson-counselled case in which the Court will consider overruling one of its hoariest antitrust precedents, the classically named Dr. Miles case from 1911. Dr. Miles held that a vertical price maintenance agreement—when a manufacturer sets the minimum price at which a retailer may sell its product—constitutes a per se violation of the Sherman Act. The last century of scholarly commentary (Messrs. Bork and Posner et al) has not been kind to the good doctor, and the Court looks poised to apply the “rule of reason” to such arrangements. If it does, the Court will continue its consistent expansion of the rule of reason, of which last Term’s Texaco v. Dagher is the most recent example.

Credit Suisse First Boston v. Billing, 05-1157

With apologies to those annoying Lending Tree commercials, this case asks: When banks don’t compete, do you win? Petitioners are ten large investment banks who formed syndicates to purchase shares of IPOs and then resell those shares to investors, during the Internet bubble era. This practice is known as “firm commitment” underwriting and provides a valuable means of capital formation for IPO issuers. The respondents claim it also violates the antitrust laws because the banks conspired to drive up the resale price of the stocks and impose certain surcharges on investors. The banks say they should have antitrust immunity because SEC regulations heavily regulate firm-commitment underwriting, and indeed, encourage it. The Second Circuit disagreed and denied the banks’ motion to dismiss.

Roper v. Weaver, 06-313

On federal habeas, the 8th Circuit vacated Weaver’s death sentence because, in his closing statement, the prosecutor urged the jury to “kill him now” and made other similar perorations presumably not taught in prosecutor’s school. The state says the 8th Circuit violated AEDPA because the Supreme Court has never addressed improper closing statements, and therefore, the “clearly established federal law” that AEDPA requires in order to reverse a state conviction is lacking.

Fry v. Pliler, 06-5247

Now here’s something you don’t see every day: A criminal challenging an unfavorable decision of the 9th Circuit and the Supreme Court granting cert. On federal habeas, a divided 9th Circuit panel found the trial judge’s exclusion of a disinterested witness’s testimony that a third party committed the crime to be harmless error. This looks like pure error correction of the panel’s three-page unpublished opinion, which may have found harmless error a little too easily given that the defendant had been tried twice before to hung juries.

Bowles v. Russell, 06-5306

This, along with the previous grant, smells like rank docket-filler. The question is whether the 6th Circuit erred in dismissing an untimely habeas appeal when the district court misinformed the petitioner about the proper deadline to appeal.

A few closing thoughts: The Court’s opinion writing has really slowed down since the departure of the speedy WHR and SOC. At this point last Term, the Court had already issued 10 opinions, compared to just 3 this Term. CJ Roberts must not be cracking the whip and threatening the slowpokes with ERISA and tax assignments like the old Chief did. On a related note, where is RBG’s first opinion? She’s usually one of the first out the gate and has probably never been beaten by the notoriously ponderous DHS. My guess is she must have drawn an opinion that is attracting substantial dissents.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice.

Posted by Administrators on December 8, 2006 at 07:59 AM in Constitutional thoughts | Permalink


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