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SCOTUSblog has posted this orders list, issued today by the Supreme Court. Lyle Denniston's post on the orders is here. Update: The list is on the Court's site here.

Missing Indictment Elements. As we noted Tuesday after the oral argument in United States v. Resendiz-Ponce, the Supreme Court's review of the question of whether omission of an element from an indictment can ever be harmless error was significantly complicated by the likelihood that there was no missing element and the indictment in the case before it was not erroneous. Justice Kennedy strongly hinted that the Court might order supplemental briefing on whether there was really anything missing (a question the Government did not petition to have reviewed), and the Court so ordered today.

Texas Death Penalty. Last Friday, the Court took a Texas death penalty case on direct appeal, where the claim involves Texas's implementation of the rule of Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court effectively overruled Jurek v. Texas, 428 U.S. 262 (1976) and disapproved the Texas system it had upheld in Jurek, even while denying it was doing so. Today the Court took two Fifth Circuit habeas cases on similar points. The first case is Abdul-Kabir v. Quarterman, No. 05-11284. In the Fifth Circuit, the case was Cole v. Dretke, panel opinion here, denial of rehearing en banc with dissent here. This case was previously remanded by the Supreme Court for reconsideration in light of Tennard v. Dretke, 542 U.S. 274 (2004). The second case is Brewer v. Quarterman, No. 05-11287, Fifth Circuit opinion here. It appears that Penry issues and the Texas death penalty will be a major part of this Term. The issues are difficult because the Court has been narrowly divided on the Texas system, with narrow, shifting majorities issuing opinions that give strained interpretations of earlier decisions. It will be interesting to see how this shakes out, particularly with the new two members of the Court.

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Hopefully, in evaluating these cases, the Supreme Court will remember what it did in the "Three-Strikes" cases it decided a few years back and acknowledge issues with the clarity of its own caselaw. Texas justice should not be thwarted simply because the Supreme Court couldn't be forthright in its Penry decision about the viability of Jurek. Lower courts certainly are entitled to take the Supreme Court at its word when it says that it is not overruling another case.

Texas is likely going to have to revise its capital punishment scheme.

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