On the Docket: Supreme Court Cases, Week of Dec. 3, 2007

The following is a summary of cases the U.S. Supreme Court will hear for the week of Nov. 26-Dec. 1, 2007:

Case: Sprint/United Management Company v. Mendelsohn

Argument Date: Monday, Dec. 3

Law in Question: Age Discrimination in Employment Act

Concern: Can a person claiming age discrimination bring in so-called "me too" testimony from other employees who allege similar actions even though they are not directly involved in the case?

Impact: A ruling on Ellen Mendelsohn's behalf will be interpreted as an opening for discrimination claims among all classes. A group of civil rights organizations including the NAACP have combined to write a brief in support of Mendelsohn. So too has AARP, which claims half of its 39 million members are in the workforce and describe the "paramount importance" of a meaningful ADEA. "AARP urges the court to seize the opportunity presented by this case to emphatically reject, as did the court below and as most other lower courts have done, the erroneous notion proffered by petitioner that, in an individual discrimination case, anecdotal evidence of alleged discriminatory treatment of other employees of the defendant-employer is per se inadmissible to prove the defendant discriminated against the plaintiff, unless the other employees have the same supervisor as the plaintiff."

Question Presented: This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me too" evidence -- testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff. The Tenth Circuit panel majority held that a court commits reversible error by excluding "me too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me too" evidence wholly irrelevant. Five circuits have held that "me too" evidence may be excluded under Federal Rule of Evidence 403. Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law.

Background: Earlier this decade, telecommunications giant Sprint was in the midst of a company-wide reduction in its workforce. The competitive marketplace forced Sprint to eliminate some 15,000 jobs. The decision to layoff specific employees was left to supervisors and managers throughout the firm. Mendelsohn started at Sprint in 1989 and in November 2002 she was working in the business development group. Her immediate supervisor rated her as the weakest performer in the group and a vice president included her in the firings. The 51 year old filed a claim with the Equal Employment Opportunity Commission which dismissed it for failing to show a violation of law.

Mendelsohn sued Sprint under the Age Discrimination in Employment Act. She sought to include the testimony of five other former employees who would support her claims that Sprint was firing people because of their advanced age. A trial judge refused to allow the "me too" testimony because none of the five worked with Mendelsohn or had the same supervisors she did. After an eight day trial, the jury ruled against Mendelsohn. But the Tenth Circuit Court of Appeals overturned the decision to exclude the testimony saying the jury should have been allowed to hear from the other fired workers concluding their testimony could have been used to support a charge of company-wide age discrimination. In its petition to the Supreme Court, Sprint's lawyers argue the Tenth Circuit's opinion was founded on "circular reasoning" and that "me too" testimony is substantially irrelevant.

Case: Riegel v. Medtronic, Inc.

Argument Date: Tuesday, Dec. 4

Law in Question: Medical Device Amendments to the Food, Drug and Cosmetic Act

Concern: If someone can sue for medical equipment negligence in state courts.

Impact: A ruling in favor of the Riegel estate could open the floodgates for medical liability lawsuits.

Question Presented: Whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act, 21 U.S.C. §360k(a), preempts state-law claims seeking damages for injuries caused by medical devices that received pre-market approval from the Food and Drug Administration.

Background: As described to the Court, "in May 1996, Charles Riegel underwent an angioplasty intended to dilate his coronary artery. His physician used the Medtronic catheter, which burst during the angioplasty. Riegel developed a complete heart block and lost consciousness and blood pressure. He needed advanced life support and emergency coronary bypass surgery." Riegel sued Medtronic in state court alleging all sorts of misdeeds related to its product which was approved by the FDA through its rigorous "pre-market approval" process. But the trial court and the Second Circuit Court of Appeals ruled against him saying federal law prohibited such litigation. The Second Circuit determined the exemption was necessary to protect manufactures who need federal approval to sell its medical products from also having to defend itself against jury findings.

Riegel died in 2004 and now his estate argues to the Supreme Court that congressional intent behind the Medical Device Amendments to the Food, Drug and Cosmetic Act, Congress could not have called for the total exclusion of state-based lawsuits. "Congress's silence cannot reasonably be seen as an expression of intent to preempt such claims." Medtronic, which says the doctor misused its product during Riegel's surgery, argues to the court that federal law mandates that the FDA, not states, has regulatory control over medical devices.

The government has submitted a brief in support of Medtronic. Solicitor General Paul Clement writes "subjecting a manufacturer to liability for not departing from an FDA-approved design or label would interfere with FDA's ability to protect public health by balancing the risks and benefits of a particular design or label." This broader argument can be found in other federal regulatory agencies seeking to preclude states from expanding upon federal regulations. Some have been critical of the Bush administration for these rules claiming they hurt consumer protections.

Case: Allen Snyder v. Louisiana

Argument Date: Tuesday, Dec. 4

Law in Question: Sixth Amendment right to impartial jury and 14th Amendment rights under the Equal Protection Clause.

Concern: The court is looking at whether the removal of all potential black jurors by peremptory challenge producing an all-white jury (along with comments made by the prosecutor referencing O.J. Simpson) violated Snyder's rights of equal protection as guaranteed under the Sixth and 14th Amendments.

Impact: This is a case with keen interest from civil rights groups. Concerns over fair trials for minority defendants have existed for decades and this case presents several long-standing issues. The first is the presence of an all-white jury and the second is the overt attempt by the prosecutor to play to the presumed prejudices of that jury. This case will have a tremendous symbolic impact but its legal impact beyond Mr. Snyder is less clear.

Background: Allen Snyder was convicted of murdering his estranged wife's lover in August 1995 less than a year after O.J. Simpson was acquitted in his own murder trial. The prosecutor in Snyder's case told reporters before the trial that this would be his "O.J. Simpson case." During the penalty phase, the prosecutor told the jurors that the case before them was "very, very, very similar" to the Simpson case and that Simpson "got away with it." The prosecution also dismissed by peremptory challenge all potential black jurors leaving an all-white jury for the black defendant. Snyder was sentenced to death. The trial took place in Jefferson Parish, no stranger to racial tensions and the district carried by David Duke during his unsuccessful 1990 and 1991 runs for the U.S. Senate and Louisiana governor.

Before the trial started, Snyder's lawyers made motions seeking to prevent the prosecutor from making Simpson-related comments in the courtroom. The trial judge denied them based in part on assurances from the prosecutor that he would refrain from making such comments that defense lawyers called "prejudicial and racially inflammatory." During jury selection the prosecution used its peremptorial challenges to strike black jurors resulting in an all-white jury. The defense used this as grounds for a new trial but the trial judge denied saying "the D.A. explained sufficient race neutral reasons for his challenges."

The Louisiana Supreme Court ruled that nothing improper took place. It said the prosecution's "proffered reasons [for the strikes] were plausible, supported by the record and race-neutral." Snyder appealed to the United States Supreme Court which remanded the case for further consideration. Once again, the Louisiana Supreme Court upheld the convictions. Interestingly, the justice that authored the court's opinion in the earlier ruling changed her mind and joined the minority writing "the cumulative evidence of pretext is compelling and too powerful to conclude anything but intentional racial discrimination motivated the state's strike of [one of the jurors]."

Snyder's appeal to the Supreme Court noted the dissenting justices in Louisiana "recognized the 'backdrop of the issues of race and prejudice' against which the prosecution made its strikes; found the states proffered reasons for striking African Americans lacked record support and were not credible in light of the prosecution's acceptance of white prospective jurors sharing the characteristics of the blacks who were struck; and concluded that the prosecutor's use of the 'O.J. Simpson verdict to racially inflame the jury's passion to sentence this defendant to death ... leave[s] no doubt ... that the prosecutor had a racially discriminatory purpose for excluding the African American jurors.'"

In response, the Jefferson Parish District Attorney's office "respectfully submits that petitioner’s conviction comports with equal protection and due process." It says the struck jurors were either properly removed or not subject to review by appellate courts because Snyder's lawyers did not object at the time. As for the O.J. Simpson issue, the district attorney says "the mentioning of it was no more than pointing out some obvious similarities between the two cases: a husband upset over his wife’s perceived relations with someone else, a furious attack of his wife while in the company of another man, the attacks result in death, the attacks are with knives, afterwards O.J. Simpson and petitioner each indicated suicide was being considered."

Questions Presented: Petitioner Allen Snyder, a black man, was convicted and sentenced to death by an all-white jury in Jefferson Parish, Louisiana, for the fatal stabbing of his wife’s male companion. Prior to trial, the prosecutor reported to the media that this was his O.J. Simpson case. At trial, the prosecutor peremptorily struck all five African Americans who had survived cause challenges and then, over objection, urged the resulting all-white jury to impose death because this case was like the O.J. Simpson case, where the defendant got away with it. On initial review, a majority of the Louisiana Supreme Court ignored probative evidence of discriminatory intent, including the prosecutors O.J. Simpson remarks and argument, and denied Snyder’s Batson claims by a 5-2 vote. This court directed the court below to reconsider Snyder’s Batson claims in light of Miller-El v. Dretke, 545 U.S. 231 (2005). See Snyder v. Louisiana, 545 U.S. 1137 (2005). On remand, a bare majority adhered to its prior holding, once again disregarding substantial evidence establishing discriminatory intent, including the prosecutor’s references to the O.J. Simpson case, the totality of strikes against African-American jurors, and evidence showing a pattern of practice of race-based peremptory challenges by the prosecutor’s office. In addition, the majority imposed a new and higher burden on Snyder, asserting that Rice v. Collins, 546 U.S. 333 (2006), permitted reversal only if a reasonable fact finder [would] necessarily conclude the prosecutor lied about the reasons for his strikes. Three justices, including the author of the original opinion, dissented, finding the prosecutor’s reference to the O.J. Simpson case in argument to an all-white jury, made against a backdrop of the issues of race and prejudice, supported the conclusion that the State improperly exercised peremptory strikes in a racially discriminatory fashion. The Louisiana Supreme Court's consideration of Snyder’s Batson claims on remand from this court raises the following important questions:

First Question Presented: Did the majority fail to consider highly probative evidence of discriminatory intent, including the prosecutors repeated comparisons of this case to the O.J. Simpson case, the prosecutors use of peremptory challenges to purge all African Americans from the jury, the prosecutors disparate questioning of white and black prospective jurors and documented evidence of a pattern of practice by the prosecutors office to dilute minority presence in petit juries?

Second Question Presented: Did the majority err when, in order to shore up its holding that Mr. Snyder had failed to prove discriminatory intent, it imported into a direct appeal case the LOWER COURT CASE NUMBER: 1998-KA-1078 CERT. GRANTED 6/25/2007 standard of review this Court applied in Rice v. Collins, an AEDPA habeas case?

Third Question Presented: Did the majority err in refusing to consider the prosecutors first two suspicious strikes on the ground that defense counsels failure to object could not constitute ineffective assistance of counsel because Batson error does not render the trial unfair or the verdict suspect -- in other words, that failure to raise a Batson objection can never result in prejudice under Strickland v. Washington, 466 U.S. 668 (1984) -- a holding directly conflicting with decisions from inter alia the Third Circuit Court of Appeals and the Alabama and Mississippi Supreme Courts?

Case: Lakhdar Boumediene, et al. v. George W. Bush & Khaled Al Odah v. United States [consolidated]

Argument Date: Wednesday, December 5th

Law in Question: Military Commission Act of 2006

Concern: The court is looking at whether the congressional remedy of military tribunals -- without trial court access to the U.S. court system -- for Guantanamo Bay detainees is constitutional.

Impact: This is the latest case in front of the Supreme Court calling into question the legal rights of the Guantanamo Bay detainees. Collectively, these cases represent the most significant legal challenges to the Bush administration's War of Terror. This case is also widely considered the most important of the court's 2007-08 term, and certainly the most important case as it relates to the White House. It may also be the last. In recent months, the administration under significant pressure to close the military prison has stepped up efforts to return the prisoners to their native countries. As of today, there are approximately 305 detainees [down from more than 800] including the two men named in these cases. The detainees in these cases claim "Guantanamo has become an international symbol of the Executive Branch's contempt for the rule of law and a deep stain on the reputation of the United States at home and abroad."

Questions Presented: First Question Presented: Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.

Second Question Presented: Whether Petitioners habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Background: Soon after the Bush administration put War on Terror bad guys behind bars at the U.S. military base in Guantanamo Bay, Cuba, those prisoners and activists on their behalf filed legal challenges. This is the third time the detainees' legal status will be argued in the Supreme Court. In its 2004 decision in Rasul v. Bush, the court ruled the detainees at Guantanamo Bay deserved the protection of American laws. In its 2006 decision in Hamdan v. Rumsfeld, the court ruled that military tribunals set up by the administration were unconstitutional. In response, Congress passed the Military Commissions Act (MCA) as a follow-up to its Detainee Treatment Act (DTA).

The detainees offer two main arguments why the MCA is unconstitutional. First, they claim the law effectively denies them habeas corpus rights to have their detentions heard by an open trial court. "The Suspension Clause [of the Constitution] prevents Congress from abrogating petitioners access to the great writ. As a majority of this court previously concluded [in Rasul v. Bush], the common law writ known to the framers ran to territories under the sovereign's control, regardless of whether they were formally considered sovereign territory." The Constitution does provide for several specific instances permitting the suspension of or satisfactory replacement of habeas rights but the detainees say the "DTA is no adequate substitute for habeas corpus."

The Guantanamo prisoners also argue their detention is unlawful because they claim it violates the due process protections of the Fifth Amendment. "The founders of our nation created a Constitution dedicated to the protection of liberty, not one that turns a blind eye to indefinite detention without a meaningful opportunity to be heard. ... After nearly six years of unjustified imprisonment, the government's failure to comply with rudimentary due process deserves no further indulgence."

In response, the government contends that MCA does not violate the Suspension Clause and that the detainees are able to challenge rulings by the military tribunals in the D.C. Circuit Court of Appeals. The government asserts the detainees in this case, "along with the other enemy combatants being held at Guantanamo Bay, enjoy more procedural protections than any other captured enemy combatants in the history of warfare." To this end, the government argues that the system as it currently stands is constitutional because "Congress has afforded them a constitutionally adequate substitute for challenging their detention. Although Congress expressly chose to foreclose detainees from challenging their status via habeas, it decided that aliens detained at Guantanamo Bay as enemy combatants should receive administrative hearings before a military tribunal...That system builds additional protections upon those that are available even to conventional prisoners of war under the Geneva Convention."

Lakhdar Boumediene is an Algerian native who was living in Bosnia at the time of his arrest in October 2001. He and five others are accused of plotting to blow up the American embassy in Sarajevo. They were relocated to Guantanamo Bay in January 2002 where Boumediene remains incarcerated. He denies any involvement in plots against the United States. Kuwaiti Khaled Al Odah also denies taking any hostile against the United States. Their cases against the government have been consolidated into one hour of arguments in front of the high court. Former Solicitor General Seth Waxman will argue on behalf of the detainees and current Solicitor General Paul Clement will argue for the government.