I was wrong when I predicted that "the Roberts Court will disagree with the Vermont Supreme Court on the deference due the Bush FDA's pronouncements on conflict preemption and declare that, adhering to Chevron, it will reverse the Vermont Supreme Court in Levine. It's the Legal Realist in me." Today, the Supreme Court, by a 6-3 vote, ruled that FDA's labelling regulations do not preempt (PDF) state law tort claims:

The Supreme Court heard oral arguments today in the William Osborne case. Osborne was convicted of rape in Alaska and alleges new DNA technology would prove he is factually innocent.

Alaska is one of several states that refuses to allow inmates to obtain DNA testing to prove innocence.

The Obama administration has taken Alaska’s side in arguing that Osborne has no right to access the biological evidence obtained in 1994, even if he pays for it. Today’s advanced tests could establish a match with a certainty of one in a billion. Former FBI Director William Sessions explains why Obama is wrong on this one. [More...]

The Supreme Court will be in session this week. Justice Ruth Ginsburg is expected to be present.

Scotus Blog has a summary of the week's cases.

Via ScotusBlog:

The pancreatic cancer for which Justice Ruth Bader Ginsburg had surgery on February 5 has been determined as TNM Stage 1 by doctors at Memorial Sloan-Kettering Cancer Center in New York City. All lymph nodes proved negative for cancer and no metastasis was found. In the procedure Dr. Murray Brennan, the attending pancreatic surgeon, removed the Justice’s spleen along with a portion of her pancreas.

Extraordinarily, the approximately 1 cm lesion revealed on a late January CAT scan, the discovery of which led to the February 5 surgery, proved benign. But in searching the entire pancreas Dr. Brennan identified a previously undetected single, even smaller, tumor which upon examination was found malignant.

Justice Ginsberg was released from the hospital today and is recuperating at home. Our best wishes for a speedy recovery.

Our best wishes go to Justice Ruth Bader Ginsburg who underwent surgery for pancreatic cancer today. According to the Supreme Court press release, a small tumor was discovered in the center of Justice Ginsburg's pancreas during a check-up late last month.

Justice Ginsburg, the only woman on the Supreme Court, is 75. While there is reason to hope that she will recover quickly and remain a vital part of the Court, her age and medical condition raise the possibility that President Obama may be nominating a Supreme Court Justice sooner than he expected. Until that bridge needs to be crossed, however, we send our positive thoughts to Justice Ginsburg for a prompt return to the Court she has so honorably served.

The Supreme Court issued opinions and orders today. Among them:

• Ruled that a man wrongly convicted and sent to prison for 24 years cannot sue the former Los Angeles district attorney and his chief deputy for violating his civil rights. The court said unanimously that decisions of supervising prosecutors, like the actions of prosecutors at trial, are shielded from civil lawsuits.

• Ruled that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.

Among the cases it agreed to hear: [More...]

Discussing the SCOTUS' 5-4 decision that state law fraud claims are not preempted by federal labelling statutes, Ann Althouse notes:

This is one of those cases where state law is preserved, yet no one extols the values of federalism. No one even says the word "federalism," as the liberal Justices decide in favor state power, and the conservative Justices worry about "non-uniformity." The tort plaintiffs will be able to go forward with their case, and the cigarette companies must take their lumps.

Sounds like Prof. Althouse thinks some results oriented votes were cast in that case. I imagine they were. It reminds me of my dispute with Prof. Althouse over Bush v. Gore.

Speaking for me only

Via Scotus Blog, the Supreme Court will hear oral arguments in three criminal cases today:

• Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.

• United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”

• Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

I was exchanging e-mails with Ed Whelan the other day (yes NRO's Ed Whelan) and I told him him that I would certainly defend the GOP Senate caucus' right to filibuster judges even though I would likely disagree with their criteria for doing so. Ed responded that he would criticize such GOP tactics. I'll do my part here. Via Steve Benen, GOP Senator Jon Kyl says:

Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal. . . . Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster.

That is absolutely the right of the GOP minority. This is their exercise of the Constitutional advise and consent role. While I disagree with their views on judges, they are Senators and have the right, even the duty, to exercise their Constitutional powers. Now what I want to know is what the Gang of 14 has to say aout this? And I expect to hear no objections to the Nuclear Option, (excuse me, I mean the I mean Constitutional Option from any Republicans now. I certainly will object to it. They can not without exposing their base hypocrisy.

By Big Tent Democrat, speaking for me only

The Bush administration's recent "get tough" philosophy with regard to undocumented workers (as opposed to its more lenient attitude toward the employers who hire them) might soon require revision. In the past, undocumented workers were deported but usually were not aggressively prosecuted, at least if they had not reentered the country after an earlier deportation. The most recent approach is to charge or threaten to charge identity theft if the worker obtained employment by using another person's name and social security number.

The workers who acquire false documents do not necessarily know whether they are using a real or a fictitious identity. The government insists that it need not prove the worker's knowledge that he or she has misappropriated a real identity. Some courts have agreed with the government while others have held that identity theft requires proof that the worker knew the fraudulent documents contained a real person's information.

[more ...]

The Supreme Court granted certiorari in ten cases today. Among the seven criminal cases, via Scotus Blog:

Among the new criminal cases is a test of the scope of the right to a speedy trial for a poor individual who is being represented by a public defender (Vermont v. Brillon, 08-88), a plea for the Court to clarify how federal appeals courts are to handle prosecutors’ violations of plea bargains when the violation was not challenged at the trial (the Court limited the grant in Puckett v. U.S., 07-9712, to one of two issues raised), and a claim that a voluntary confession made after a suspect’s arrest on federal charges but before he appears before a magistrate must be suppressed when there was a delay before that appearance occurs (Corley v. U.S., 07-10441).

More....

Earlier I wrote about the Levine/Wyeth preemption case and it was discussed today among many other cases, in the PFAW/SCOTUSBlog conference call on the upcoming Supreme Court term.

Tom Goldstein of SCOTUSBlog and a Partner at Akin, Gump, stated that he believes this case could have far reaching implications. Goldstein stated that while the SCOTUS has read a broad concept of preemption in FDA approval of medical devices (as it did in Reigel, where the legislation at issue included an express preemption clause. By contrast, it has not in the pharmaceutical drugs area. In the Levine case, the legislation in question does not contain an express preemption clause (indeed it seems to contain an express disavowal of preemption.) In fact, Wyeth is arguing conflict preemption (as opposed to implied preemption) - that it can not comply with federal regulation while avoiding potential state law liability. The twist in this case is that the FDA issued an agency comment that supported Wyeth's position, thus bringing the Chevron deference issue into play.

More...