Friday, February 02, 2007

Supreme Court update

The Christian cert petition, originally filed pro se IFP, has now secured the assistance of counsel, with David Sheldon as lead counsel on Christian's reply brief, which was filed 31 January. The Supreme Court has scheduled Christian for the 16 February conference, during which the Court will also consider the Lovett cert petition.

The SG's response is due in New, the collateral attack on a court-martial conviction, by 21 February.

The SG is quickly running out of time to file a cert petition in either Lane or Long. In both cases, a cert petition would be due this coming Monday. The SG has sought cert in eight cases since last Term ended on 29 June 2006 -- none of them from the military justice system. (Each of the cert petitions is available here.) The Supremes have granted cert in four and four remain pending. (The Supremes acted on another four SG cert petitions this Term, but those were all filed last Term. One was granted, two resulted in GVRs and one was, gasp, denied!)

--Dwight Sullivan


John O'Connor said...

Though I'm prone to worship at the alter of Judge (now Convening Authority) Crawford, I'm hard-pressed to see how Lane was wrongly decided. In my mind, members of Congress have held military commissions mostly because no one had standing to challenge it. I'd love to have been a fly on the wall when somebody came up with the brilliant idea to put a sitting Senator on the Court of Crinminal Appeals, and thereby giving someone standing to make a federal case out of it.

And if you accept that it was error for Senator Graham to sit on an appellate panel, that case is utterly un-certworthy on the issue of remedy. It seems unlikely that this issue will recur (at least one can always hope) and I don't see a split in the "circuits."

CAAFlog said...

I thought the SG would take it to argue that it was a non-justiciable political question and to protect the prerogatives of the Executive Branch. (Sure, technically CAAF is in DOD for administrative purposes. See UCMJ art. 141. But it functions more as a check on the Executive Branch, and this Solicitor General has actively litigated many cases to argue against some particular check of the Executive Branch.)

CAAFlog said...

Thinking about the separation of powers implications some more highlighted to me why this would be such an interesting case for the Supremes to hear. Here is the language of the Incompatibility Clause in Article I, Section 6: "[N]o person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." The non-justiciability argument in the case focuses on the prerogatives OF CONGRESS. The argument is that the Clause is addressed to Congress, and each House of Congress has the prerogative, under Article I, Section 5, to control its membership. Under this rationale, it is up to Congress, not a court, to enforce the incompatibility clause.

But simultaneously, the Lane ruling challenged an Executive appointment. So you have a court stepping in to tell the other two branches of government that they are wrong. As Justice Jackson's concurring opinion in Youngstown Steel indicates, courts are usually most deferential when facing the combined acts of the other two branches. That doesn't mean that courts are hands-off when faced with a combined act of the other two branches; after all, Congress does on occasion pass an unconstitutional bill that the President then signs.

But Lane presents unusually fascinating jurisprudential issues dealing with a constitutional provision that is under-examined due, in part, to the standing problems that John identified.
If the SG passes it up, he's passing up an opportunity unlikely to present itself again for decades.

John O'Connor said...

Your comment that it would probably be decades before this issue rose up again explains why it is such a poor case for certiorari. And, I just don't see it being a particularly fascinating separation of powers issue when the Constitution says "don't do X" and then the other branches of government do X. Besides, from the SG's perspective it's only a good case if you think you'll win.

If I were SG, I would pass. But that might be only one of many reasons why I'm not SG.

CAAFlog said...

But one reason the issue is unlikely to recur is because of CAAF's opinion in Lane. By seeking cert and winning a reversal, the SG would be obtaining greater discretion for the Executive Branch. And to me it doesn't seem at all improbable that if the Supremes granted cert they would reverse on the ground that only Congress can enforce the Incompatibility Clause.