2007-08 Term Preview

Greetings, and welcome to the Legal Information Institute's LIIBULLETIN coverage of the United States Supreme Court's 2007-08 term. Even at this early stage, the docket suggests that the Court will grapple with a number of high-profile issues as it continues to define itself under the leadership Chief Justice Roberts. The consensus that characterized opinions during the first few months of the Roberts court has evaporated, resulting in a large number of 5-4 split decisions and a determinative role for Justice Kennedy. In anticipation of a lively term, we identify several cases that promise spirited exchange on and off the bench.

Controversial Issues on the Docket

The first two cases the Court has selected to hear this term will determine how political parties are allowed to choose their candidates, a hot issue in some states during the run-up to the 2008 presidential election: Washington State Grange v. WA State Republican Party and the consolidated case Washington v. WA State Republican Party. The cases challenge Washington state's primary system, which allows candidates to declare their "party preference" without the political party's consent, and then advances the top two vote-getters to the general election, regardless of party affiliation. The state Republican Party claims that this violates their First Amendment right to free association. The State responds that allowing the self-declarations promotes both voters' ability to choose a candidate and the free speech rights of the candidates themselves. In a similar case, New York Board of Elections v. Torres, a candidate for New York Supreme Court Judge is challenging the state judicial primary system. In New York, judicial candidates do not campaign directly, but instead seek to elect delegates who will support them in their party's nominating conference. A recent candidate claims that this system violates her First Amendment right to free association because it prevents her from being nominated by the political party of her choice. Combined, the cases will define the extent to which political parties may endorse the candidates of their choice, as well as the extent to which candidates may choose a political party to endorse them.

Investors, corporations, and government regulators all have their eyes on Stoneridge Investment v. Scientific-Atlanta, which may enable investors to hold third parties such as lawyers, accountants and banks responsible for their role in helping companies commit securities fraud. Investors in a cable television company sued Scientific-Atlanta for participating in sham transactions that artificially inflated the cable company's earning statements. Scientific-Atlanta argues that it is not a "primary violator" of securities regulations, and is therefore immune from such a lawsuit under a rule established by the Supreme Court in 1994. Stoneridge holds particular interest in the wake of the Enron scandal, in which fraudulent accounting practices cost thousands of investors their savings. A verdict for Stoneridge could provide a way for investors to recover some of their losses from wealthy third party participants. The case has exposed a rift between the Securities and Exchange Commission, which supports holding Scientific-Atlanta liable under these circumstances, and the Bush administration's Department of Justice, which opposes it. Corporate interest groups have fanned the flames of the dispute, warning that imposing liability on third parties will harm the US economy.

In Boumediene v. Bush and Al Odah v. United States the Court will examine the politically charged question of whether Congress exceeded its constitutional bounds when it enacted the Military Commissions Act of 2006. In both Boumediene and Al Odah, Guantanamo detainees challenged the legality and conditions of their confinement, asserting that they had been falsely identified as enemy combatants. In affirming Al Odah's dismissal, the Court of Appeals for the DC Circuit initiated a debate that has raged for more than two years over whether detainees have rights that entitle them to file habeas petitions. The DC Circuit held that detainees lack such rights because their capture and detention occurred outside the sovereign territory of the US. Congress has expressed approval of this result in passing first the Detainee Treatment Act of 2005 and then the Military Commissions Act of 2006 (MCA), which explicitly strips federal courts of jurisdiction to hear future or pending detainee habeas petitions. Before Congress enacted the MCA, the Supreme Court held that federal courts do have jurisdiction in certain limited circumstances. The Court refused to hear both Boumediene and Al Odah in early April, 2007. Then, in an unusual move, the Court reversed course and granted certiorari on June 29, 2007. The questions certified for review suggest that the Court intends, for the first time, to directly confront the constitutional constraints on military detention of enemy combatants. Given the degree of public debate over the MCA and the fact that Habeas Corpus Restoration Act of 2007 passed out of the Senate Judiciary Committee just three weeks before the Court granted cert, it is clear that interest in the outcome of this case will be intense.

Finally, in Medellin v. Texas, the Court will examine the effect that International Court of Justice (ICJ) judgments have on US state courts and whether the President can compel state courts to give effect to such judgments. The case concerns a Mexican citizen who was convicted of capital murder and sentenced to death in Texas without being informed of his right, under the Vienna Convention, to contact the Mexican consul. The ICJ directed the US to reconsider the convictions and sentences of Medellin and other foreign nationals who had been tried without benefit of consular assistance. President Bush instructed the States to give effect to the ICJ ruling by way of a memorandum to the Attorney General. However, Texas refuses to reconsider Medellin's case, arguing that it is not bound by the ICJ decision and that the President has no authority to compel a state to comply with a foreign court order. Medellin argues that the Supremacy Clause of the United States Constitution requires Texas to comply because the treaty was duly entered into by the President and ratified by two-thirds of the Senate. Alternatively, he argues that Texas must comply with the President's instruction because the President's broad authority over foreign affairs gives him the authority to enforce international treaties. Touching on states' rights issues as well as the delicate subject of US engagement with international law, this case will be controversial regardless of its outcome.

Here at the LIIBULLETIN, we are eager to watch these cases and the rest of the term unfold. Beginning next week, our condensed e-mail preview service will be accompanied by a full preview of each case on our website roughly two weeks before the Court hears it on oral argument. Additionally, we are pleased to announce that, under a continuing agreement, two previews will appear in print in each month's issue of The Federal Lawyer.

We hope you will join us,

Heidi Guetschow, Editor-in-Chief

Richard Beaulieu, Executive Editor