The Supreme Court on Monday refused to hear the federal government’s appeal seeking to salvage its opportunity to force the tobacco industy to surrender $280 billion in profits. In a separate development, the Court once again took no action on a test case challenging the constitutionality of the military tribunals set up to try war crimes charges against terrorist suspects. The next opportunity for it to act on the case of Hamdan v. Rumsfeld (05-184) may not come until Oct. 31.

Here’s today’s Order List.

The Court on Monday granted one case, a significant sequel to its series of rulings on the roles of judges and juries in criminal sentencing. It accepted for review the issue of whether a violation of the jury’s role in sentencing can ever be excused as “harmless error.” The case is Washington v. Recuenco (docket 05-83).

In a two-page, unsigned opinion, the Court ruled that states must be given a chance to develop their own ways of deciding whether a convicted murderer is mentally retarded, and thus cannot be executed. It overturned a Ninth Circuit decision that ordered the state of Arizona to let a jury decide the retardation issue. “Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition,” the Court said. There were no recorded dissents in Schriro v. Smith (04-1475).

Among the other orders the Court issued, it significantly narrowed the scope of its review of a case on legal immunity for local governments. A week ago, the Court had agreed to hear the case of Zurich Insurance Co., et al., v. Chatham County, Ga. (docket 04-1618). At that time, the petition had posed seven, lengthy questions. All of the questions dealt in various ways with whether a county had “sovereign immunity” to a lawsuit because it had operated a drawbridge over a waterway, and an accident had occurred when the drawbridge lowered prematurely. On Monday, the Court said it was limiting its grant to this question: “Whether an entity that does not qualify as an ‘arm of the State’ for Eleventh Amendment purposes can nonetheless assert sovereign immunity as a defense to an admiralty suit?”

The Court’s refusal to hear the Justice Department appeal in U.S. v. Philip Morris USA, Inc., et al. (05-92) takes off the table in the government’s mammoth lawsuit against the industry the most significant punishment that could be imposed if the tobacco companies are found to have violated federal anti-racketeering law (RICO). The Court gave no explanation for its denial of review; there were no recorded dissents.


The trial on the RICO claim is going forward in U.S. District Court in Washington, D.C., before Judge Gladys Kessler. She has not yet ruled on the government claim that the industry violated RICO by decades of deceiving the public about the hazards of smoking. Post-trial briefing on the liability and remedies issues has now been completed, and the Supreme Court’s order on Monday will allow Kessler to move toward concluding the case — pending in her Court since September 1999.

If there is a RICO violation, the government had contended, the industry should be required to forfeit the “ill-gotten gains” from its deceptive tactics. The D.C. Circuit, however, ruled 2-1 last February that RICO only allows “forward-looking” remedies, and “disgorgement” of profits would be a “backward-looking” remedy.

After the Circuit Court ruled, Judge Kessler said that decision was a significant blow to the government’s case. The Justice Department, in a move that has led to an internal investigation within the Department, has pared down the alternative remedies it is seeking, if a RICO violation is found.

The Supreme Court’s denial of review came in a brief order, with no indication that any Justice had been recused. When Chief Justice John G. Roberts, Jr., was on the D.C. Circuit, he had disqualified himself from taking part when the full Circuit Court denied en banc review of the panel ruling against the disgorgement remedy. He appears to have taken part in the Supreme Court order Monday; there was no indication to the contrary, and there would have been under normal practice. (Update: Although the Chief Justice’s wife, Jane Sullivan Roberts, is a partner at the law firm of Pillsbury Winthrop Shaw Pittman, and that firm was involved in the case in the courts below, the Supreme Court’s Public Information Office said, when asked, that Mrs. Roberts is a salaried partner at the firm. The Justices’ recusal policy thus would not have been an issue in the tobacco case at the Court, it appears.)

The Court’s continuing inactivity — at least in public — on the war crimes proceedings has not been explained. There had been lingering procedural questions in the D.C. Circuit, but those were resolved last week; still, no action was forthcoming from the Court agaIn on Monday. The Chief Justice is not expected to take part when the Court does react to the appeal. He had told the Senate Judiciary Committee when he was being considered for the Court that he would not take part in cases on which he had sat as a Circuit Court judge. He was on the D.C. Circuit panel that upheld the war crimes tribunals last July 15.

(Thanks to Howard Bashman of How Appealing blog for linking to us for Monday’s posts.)

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