Updated to 12:55 p.m.

Because four Justices were disqualified, the Supreme Court on Monday upheld a lower court ruling that allows a massive lawsuit seeking damages from companies that did business in South Africa during the apartheid era to proceed toward a trial.  With four Justices out, due to their investments in some of the companies involved or to family ties, the Court lacked a quorum of six, so federal law requires that the Second Circuit Court decision at issue be affirmed. No opinion was issued in this situation.

In the only ruling of the day on the merits, the Court, by a vote of 8-1, decided that a federal magistrate judge may preside over jury selection in a felony trial, if defense counsel expressly gives consent to handing off that task from the regular judge.  Justice Anthony M. Kennedy wrote the Court's main opinion in Gonzalez v. U.S. (06-11612). Justice Clarence Thomas dissented. Justice Antonin Scalia joined only the result, not the Kennedy opinion.

The Court agreed to hear one new case, an appeal by a death row inmate in Virginia, Edward Nathaniel Bell.  The Court limited its review to the question of whether federal courts hearing a state prisoner's habeas case must defer to state court findings even if the state court did not consider the specific evidence at issue.  The case is Bell v. Kelly (07-1223).  The case will be heard in the Term starting Oct. 6.  In a separate order, Chief Justice John G. Roberts, Jr., ordered a delay in Bell's execution, scheduled for July 24.

Bell’s appeal argued that there is a split in the federal Circuit Courts over the degree of deference to state courts, under federal habeas law, when the evidence was not considered by the state court and arose for the first time in a federal habeas hearing. The evidence in this case dealt with a claim that Bell’s case was harmed by the failure of defense lawyers to offer mitigating evidence on the death penalty issue.

The apartheid "reparations" case "” American Isuzu Motors, et al., v. Ntsebeza, et al. (07-919) "” had appeared to have a strong chance of being heard by the Court, because the Justice Department had joined in urging review and the Court itself earlier had commented adversely about the case. But that chance evaporated when the Court could not muster a quorum. The Chief Justice and Justices Samuel A. Alito, Jr., and Stephen G. Breyer recused, presumably because of their stock holdings in some of the companies, and Justice Kennedy recused, probably because of his son's employment by one of the firms, Credit Suisse, a financial institution.

A group of 34 U.S. and foreign companies argued in their appeal that the lawsuit claiming that they "aided and abetted" the apartheid policies of the South African government should be dismissed out of deference to the Executive Branch’s opposition and that of South Africa’s present government. The appeal also questioned whether private companies may be sued under a 1789 law, the Alien Tort Statute, for aiding and abetting the actions of a foreign government on its own territory.

Although a federal judge had dismissed the case, the Second Circuit revived it, ruling that the case could proceed on an "aiding and abetting" theory and on a claim that the companies aided in violations of the international Genocide Convention. The Circuit Court, however, did not rule on whether the case should be dismissed on grounds of deference to Executive Branch opposition. That was left to the District judge, John E. Sprizzo of New York City, in the first instance.

Judge Sprizzo had based his dismissal mainly on the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, allowing some lawsuits to go forward under the alien tort law, but cautioning that U.S. courts should be hesitant to take on cases implicating international law in the face of Executive Branch opposition. The Court, in a footnote in Sosa, actually mentioned the South Africa litigation as an example of what it had in mind.

As a result of the Supreme Court’s order Monday, the case returns to Judge Sprizzo to continue toward a trial, but with authority to consider anew the companies’ pleas for dismissal out of deference to Executive opposition.  The case ultimately could return to the Supreme Court, and whether the Justices could act on it then would depend upon the availability of six Justices without conflicts that would lead to new recusals.

The Court’s order used standard language in situations where a quorum cannot be summoned. The order said that the five Justices who did take part had concluded that, in the absence of a quorum and indications that this problem could not be resolved so that the case could be heard next Term, it had to be affirmed.  This would be the same result, the order noted, as in the situation where the Court splits 4-4.  In that circumstance, a lower court decision is simply affirmed summarily, without an opinion and without creating a precedent.  The order, finally, listed the members of the Court who were recused, without giving any explanation.

Among other orders issued Monday, these were some of the results:

** The Court refused to speed up its consideration of a plea by a Syrian national, now being held prisioner at Guantanamo Bay, for an order to compel the D.C. Circuit to act on his claim to be released on the theory that there is no evidence to support his designation as an “enemy combatant” and thus no basis for his continued detention.  The denial of expedition left pending the petition for a writ of mandamus in the case of Abdul Rahim Abdul Razak Al Ginco (In re Al Ginco, 07-10553).

** The Court denied review of a number of significant cases, including an attempt to bring a new antitrust lawsuit against the settlement of the 46 states’ antitrust lawsuit against the tobacco industry (Sanders v. Brown, 07-995), a plea to clarify the right to refugee status and asylum in the U.S. for the spouse of a woman forced to undergo an abortion or sterilization in China (Yang v. Mukasey, 07-756), an appeal seeking to block expansion of O’Hare Airport in Chicago into an area that would displace a church-operated cemetery (St. John’s United Church of Christ v. Chicago (07-1127), and a claim that state courts retain some authority to rule on claims of misconduct in the process of settling securities purchases and sales (Vyta Corp. v. Depository Trust, 07-1006).

Posted in Bell v. Kelly, Uncategorized