Greetings, Court Fans!
This week will be a big week at the Court. For starters, on Wednesday the Court will hear arguments in the biggest cases of the Term, Boumediene v. Bush (06-1195) and Al Odah v. United States (06-1196). The cases concern whether the Constitution guarantees alien detainees at Guantanamo the right to challenge their detentions in federal courts via the writ of habeas corpus (which Congress took away from them in the Military Commissions Act of 2006). Given the intense public interest in the case, the Court has announced that it will release the audio of the arguments as soon as possible on Wednesday – so check the Court’s web site on Wednesday afternoon if you’re interested.
In addition, the Court’s opinion line indicates that the Court will be releasing “opinions” tomorrow, though it does not say just how many – so it looks like we will finally have the first signed opinions of the 2006 Term! (FYI, the opinion line is a dedicated phone number at the Court which indicates if any orders or opinions will be forthcoming in a given week, and is updated throughout the week as opinions are announced; you can find it in the “Public Information” section of the Court’s web site). The Justices definitely have a quasi-serious race to see who gets the first opinion out, which O’Connor almost always won during her tenure. Last Term it was Justice Kennedy (no surprise, given how crucial he was to the Term) – we’ll see if he gets a streak going. For what it’s worth (which may not be much), the Court was a bit faster last year, as the first signed opinions came out in early to mid-November.
The Court released its order list today, granting cert in three more cases that will be heard sometime this spring. They biggest of the bunch is Rothgery v. Gillespie County, Texas (07-440), which concerns when a suspect in police custody becomes entitled to a lawyer under the Sixth Amendment. Rothgery was arrested on suspicion of being a felon with a firearm and brought before a magistrate who informed him of the charge, found probable cause that he had committed the offense, and committed him to jail pending trial or the posting of bail. The question presented is “whether the Fifth Circuit correctly held – in a decision that conflicts with those of other federal courts of appeals and state courts of last resort – that adversary judicial proceedings nevertheless had not commenced, and petitioner’s Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner’s arrest or appearance before the magistrate.”
The other cert grants are:
Republic of the Philippines v. Pimentel (06-1204): This case asks a question only a procedure junkie could love: Whether a foreign government that is a “necessary” party to a lawsuit under Rule 19(a) and has successfully asserted sovereign immunity is, under Rule 19(b), an “indispensable” party to an action brought in the courts of the United States to settle ownership of assets claimed by that government. In addition, the Court has asked the parties to brief the equally scintillating question whether, having successfully asserted sovereign immunity and gotten out of the case, the Philippines even has the right to appeal the district court’s finding that it was not an indispensable party.
United States v. Clintwood Elkhorn Mining (07-308): “Whether a taxpayer who would have been entitled to file a tax refund action in federal court to seek a refund of taxes (and interest thereon), but who failed to satisfy a statutory prerequisite to such an action (namely, the filing of a timely administrative refund claim) and is therefore barred from bringing such an action, may obtain a refund, and interest thereon, through an action directly under the Constitution pursuant to the Tucker Act, 28 U.S.C. 1491(a).”
Finally, the Court’s order list asked the SG to brief the views of the United States on the cert petition in Board of Education of City of New York v. Gulino (07-270), which asks a very unwieldy question: “Where the Courts have heretofore been unanimous in holding that licensing activity conducted outside the scope of an employer/employee relationship does not incur liability under Title VII, and where the Petitioner school district complies with State law by honoring state licensing examination requirements that Petitioner neither devises, implements, nor administers, and as to which Petitioner has no discretion, and where the challenged licensing test does not measure attributes appropriate to hiring decisions, did the Second Circuit err and create a split with other Circuits by holding that because Petitioner otherwise functions as the employer of New York City public school teachers, its compliance with challenged State licensing requirements subjects it to liability under Title VII?” Here’s what the case is really about: New York City instituted a state-mandated general knowledge test as part of the certification process for public school teachers, and a class of minority teachers sued, alleging that the test was racially discriminatory – the issue is whether, where the city had to use the test, it can be found liable under Title VII.
That’s all for now – as soon as we can digest tomorrow’s opinions, we’ll be back with summaries. Thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400