Summary of Supreme Court's Plenary Docket: David Stras posts Part Two of his "Supreme Court Plenary Docket" on SCOTUSblog today. (Part One can be found here). In today's post, Stras breaks down the cases heard in OT08 by subject matter/litigant. Stras reports that this year's docket contained "a slightly higher proportion of cases involving federal governmental litigation than in any of the past five Terms." The Supreme Court granted cert. for 15 cases involving federal government litigation. This was 19.2% of the Court's caseload this term. Stras believes that this might be due to the number of "administrative action" cases the Court heard this year. In OT08 the Court heard ten "administrative action" cases. The Court only heard four in OT07, five in OT06, and six in OT05. Stras also reports that this term the Court heard 25 criminal cases. Seven of these cases were habeas cases and eight were state criminal law cases. He reports that criminal cases tend to "hover around 25% of the total composition of the docket and this Term is no exception."
Supreme Court Short List: At Legalities, Jan Crawford Greenburg reports that the White House has asked six prospects to provide personal background information for vetting purposes. She reports that sources close to the process have named "[t]he leading contenders" as Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan. According to Greenburg, Chief of Staff Rahm Emanuel favors Judge Sotomayor for the position. While Sotomayor would be a historic choice for the Court, Greenburg cautions that "Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer--something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee." Judge Wood might be the better choice, as she is "a careful jurist who, while liberal on social issues, is highly respected for her craftsmanship." Greenburg believes that we can expect an announcement on the nomination in the next few weeks. Jonathan Adler also has this post at Volokh Conspiracy briefly discussing Greenburg's report.
More on "Leading Contender" Judge Wood: Yesterday, at Bench Memos, Ed Whalen posted Part 3 on his series on Supreme Court candidate Dianne Wood. The post reviews Judge Wood's "confused" opinion in French v. Duckworth, 178 F.3d 437 (1999), a decision the U.S. Supreme Court overruled in Miller v. French, 530 U.S. 327 (2000). French involved the Prison Litigation Reform Act which altered the criteria when a state moves to modify or terminate an injunction in a prison conditions case. Under the Act's automatic stay provision, "section e(2)," if the court fails to decide the motion within 30 days the decree is stayed until the court rules on the motion. Judge Wood found this section to violate the separation of powers principle "because it is a direct legislative suspension of a court order." Her problem with e(2) was that it "strips from the court the authority to decide whether the status quo (defined by the earlier decree the court entered that required prospective relief) should be continued or modified pending the court's decision on the immediate termination petition."
Judge Wood's opinion was criticized by Judge Easterbrook when he dissented from the Seventh Circuit's denial of rehearing en banc. CJLF's brief supporting reversal is here. When the Supreme Court reversed in Miller v. French, Whalen reports, none of the Justices shared Judge Wood's view. He notes this is quite "unimpressive and troubling."
A Restrained Justice? Stuart Taylor at National Journal is "cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint." Robert Alt at Bench Memos is "less optimistic."
Supreme Court Short List: At Legalities, Jan Crawford Greenburg reports that the White House has asked six prospects to provide personal background information for vetting purposes. She reports that sources close to the process have named "[t]he leading contenders" as Judges Sonia Sotomayor and Diane Wood, and Solicitor General Elena Kagan. According to Greenburg, Chief of Staff Rahm Emanuel favors Judge Sotomayor for the position. While Sotomayor would be a historic choice for the Court, Greenburg cautions that "Sotomayor has not dazzled or distinguished herself on the appeals court as a forceful theoretician or writer--something Obama, the former constitutional law scholar who will drive this decision, is likely to want in his Supreme Court nominee." Judge Wood might be the better choice, as she is "a careful jurist who, while liberal on social issues, is highly respected for her craftsmanship." Greenburg believes that we can expect an announcement on the nomination in the next few weeks. Jonathan Adler also has this post at Volokh Conspiracy briefly discussing Greenburg's report.
More on "Leading Contender" Judge Wood: Yesterday, at Bench Memos, Ed Whalen posted Part 3 on his series on Supreme Court candidate Dianne Wood. The post reviews Judge Wood's "confused" opinion in French v. Duckworth, 178 F.3d 437 (1999), a decision the U.S. Supreme Court overruled in Miller v. French, 530 U.S. 327 (2000). French involved the Prison Litigation Reform Act which altered the criteria when a state moves to modify or terminate an injunction in a prison conditions case. Under the Act's automatic stay provision, "section e(2)," if the court fails to decide the motion within 30 days the decree is stayed until the court rules on the motion. Judge Wood found this section to violate the separation of powers principle "because it is a direct legislative suspension of a court order." Her problem with e(2) was that it "strips from the court the authority to decide whether the status quo (defined by the earlier decree the court entered that required prospective relief) should be continued or modified pending the court's decision on the immediate termination petition."
Judge Wood's opinion was criticized by Judge Easterbrook when he dissented from the Seventh Circuit's denial of rehearing en banc. CJLF's brief supporting reversal is here. When the Supreme Court reversed in Miller v. French, Whalen reports, none of the Justices shared Judge Wood's view. He notes this is quite "unimpressive and troubling."
A Restrained Justice? Stuart Taylor at National Journal is "cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint." Robert Alt at Bench Memos is "less optimistic."
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