Greetings Court fans!
Not much to report today: One case “resolution” and an order list. In Borden Ranch Partnership v. U.S. Army Corps of Engineers (01-1243), the Court issued a one-line per curiam affirming the Ninth Circuit’s decision by an equally divided Court. (Kennedy did not participate in this case; he must be feeling pretty low about right now.) In this case, the Ninth Circuit upheld the authority of the Corps and the EPA to regulate “deep ripping” (dragging very large prongs through the soil) under the Clean Water Act. The petitioner claimed that the Corps and the EPA lacked authority to regulate this activity but the Ninth Circuit disagreed. After today’s “decision,” the Ninth Circuit’s decision still stands.
This case is the third one this Term that the Court has resolved after argument without decision. See Ford Motor Co. v. McCauley (01-896) (cert dismissed as improvidently granted); Abdur’Rahman v. Bell (01-9094) (same). Three cases is not an insignificant number when you consider that the Court routinely hears only 75-85 cases per Term.
Even though the Court still needs approximately 20 cases to fill out its quota for this Term, and even though it should really complete its docket by mid-January to allow the parties sufficient time to brief their cases, the Court did not grant cert in any cases today. Keep in mind also that after today’s list, the Court won’t issue any order lists (i.e., won’t grant cert) until January 13.
Aside from the Court’s inaction on filling its docket, the only issue of interest on the order list was an invitation to the Solicitor General to file a brief expressing the views of the United States in American Coalition of Life Activists v. Planned Parenthood (02-563). In this case, abortion providers claimed that the posting of their names and addresses on the internet by abortion opponents (in the form of “wanted” posters) constituted a “threat of force” that was prohibited by the Freedom of Access to Clinic Entrances Act. A divided 9th Circuit upheld that claim, and now the SG will weigh in on the issue.
That’s all for today, and probably until Jan. 13. Happy holidays everyone!
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com