UPDATE and NOTE TO READERS 4:26 p.m.    The following post has been revised to add clarity to a version that appeared earlier today. The jurisdictional question that the Court has before it has to do with the Court’s own jurisdiction to decide this case.  That is separate from the question of whether the three-judge District Court had the authority to issue the prisoner release order that it did, in final form, in January.  The blog apologizes for any misunderstanding arising from the earlier post.

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The Supreme Court, having already shown it was interested in the controversy, on Monday finally agreed to consider at least part of the state of California’s complaint about being forced by a federal court to release close to 40,000 inmates from its 33 state prisons, to relieve over-crowding and a serious health crisis.  The Court will set the case for a hearing in the Term starting Oct. 4, but the first issue up for review is whether the Supreme Court has the authority even to consider the state’s appeal.  The Justices said they will consider that jurisdictional question when the case is called for a merits hearing on the case of Schwarzenegger, et al., v. Plata, et al. (09-1233).  The case could produce a major ruling on federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996.

For the second time in three years, the Court refused, without any noted dissent, to consider a constitutional challenge to the former Bush Administration’s so-called “rendition” program — a once-secret campaign to round up those suspected of terrorism and send them to other countries for harsh interrogation, perhaps reaching the level of torture.  This time, the Court turned aside a challenge by a Canadian software engineer, Maher Arar, who was nabbed at JFK Airport in New York on returning from a vacation trip to the Mideast, and was held for a year in Syria, where he has said he was subjected to torture.  (The petition was in Arar v. Ashcroft (09-923). In October 2007, the Supreme Court denied review of the first challenge to “rendition,” filed by Khaled El-Masri, a German citizen who was abducted and sent to Afghanistan, where he complained he was subjected to torture by American agents (El-Masri v. U.S., 06-1613).

In choosing to bypass Arar’s case, the Court noted that Justice Sonia Sotomayor did not take part.  She had participated in an en banc hearing of the case in December 2008, when she was a Second Circuit Court judge, but did not take part in the Circuit Court’s final rulings last Nov. 2.   The en banc Circuit Court upheld dismissal of Arar’s case by a 7-4 vote.  While the Court, as usual, gave no explanation for passing up the case, it may well have been that Sotomayor’s recusal and the prospect that Justice-nominee Elena Kagan would also have to take herself out of the case if it were granted review because she has had some part in its consideration as Solicitor General would have doomed any chance that the Second Circuit could be overturned.

The Court’s order Monday in the California prison case grew out of prolonged litigation in federal court over threats to the health of both prisoners and prison staff members as a result of severe over-crowding in the state’s prisons.  Two separate lawsuits by prison inmates ultimately were merged before a three-judge District Court, to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat.  The state’s prisons were operating at close to twice their actual design capacity.  The District Court in the end ordered California to reduce over-crowding from the peak of 196 percent of design capacity to 137.5 percent, and to do so in two years.

Earlier, the Supreme Court had declined to step into the controversy, but expressly noted that it had been assured that no prisoner release order would be ordered until the Supreme Court had had an opportunity to review it.   The release order is now on hold pending final action by the Justices.

The question of jurisdiction that lingers in the case is a basic one under federal law: whether the Supreme Court can hear and decide a challenge to a single federal judge’s decision to summon a three-judge District Court — as was done in this case, putting before a three-judge panel the California inmates’ plea for an inmate release order.  The prisoners’ lawyers told the Supreme Court that, if California wanted to challenge the summoning of the three-judge court, it should have appealed that to the Ninth Circuit Court, not directly to the Supreme Court.  The state did not do so.  Direct appeals to the Supreme Court, those lawyers’ brief said, are allowed only from final orders issued by a three-judge court, not a single judge acting alone.

The state’s separate argument is that, under the 1996 federal act that governs when an inmate release order may be issued, the requirements were not satisfied in this case.  Under that act, a prisoner release order may be adopted only as a “last resort,” only if it has previously issued other, less-intrusive orders that had failed to remedy violations of inmates’ rights, and only if it found that state officials had had a reasonable time to comply with such prior orders.  The state contends that the District Court did not satisfy at least one of those conditions, because it did not give officials time enough to try to cure the over-crowding situation on their own.

Only if the Justices find that they have jurisdiction to consider the state’s appeal would they then move on to decide whether the specific order at issue was justified.  The case is not likely to come up for  a hearing until the winter.

Among other cases the Court on Monday agree to hear is a major consumer case, with the final decision likely to clarify when a drug manufacturer may be sued for securities fraud for failing to publicly disclose that one of its medicines causes harmful side-effects.  The case involves the over-the-counter drug sold under the trade name Zicam, when it is used as a nasal spray to counteract colds.   The manufacturer, Matrixx Initiatives, is seeking the Court’s help to head off a series of lawsuits claiming that Zicam in that form has caused a loss of the  sense of smell in scores of cases.   Its petition (Matrixx v. Siracusano, 09-1156) argued that there is a clear split in lower courts on the legal standard to be used when a drug manufacturer is sued for securities violations when the complaint is non-disclosure of side-effects.

The Court also agreed to spell out whether a 1976 federal law that protects railroads from discriminatory taxes applies to state and local sales and use taxes, when railroads have to pay those levies but their freight-hauling competitors do not.   The Court framed the legal question at issue in exactly the form suggested by the U.S. Solicitor General, who offered the federal government’s views at the invitation of the Court.  The case is CSX Transportation v. Alabama Department of Revenue (09-520).

In addition, the Court granted review of a petition by California state officials, who argue that the Ninth Circuit Court failed to defer to state court rulings in finding that a defense lawyer, in a double murder case that resulted in a death sentence, did not perform adequate service to his client during the sentencing phase.  The lawyer was faulted for failing to produce evidence at the sentencing hearing of organic brain damage and a troubled childhood for the accused.  The case is Cullen v. Pinholster (09-1088).  Scott Lynn Pinholster of Van Nuys was sentenced to death for killing two people in January 1982 when they returned to a home in Tarzana, Calif., where they were house-sitting, interrupting a robbery against the owner of the home, drug dealer Michael Kimar.

Posted in Matrixx Initiatives v. Siracusano, Brown v. Plata, Cases in the Pipeline