The following opinions were released by the United States Supreme Court on June 8, 2009:

• Republic of Iraq v. Beaty (Unanimous opinion of the Court by Scalia, J.) (certiorari to D.C. Cir.) (foreign sovereign immunity - terrorism exception). Reversing judgments of the Court of Appeals in consolidated cases against the Republic of Iraq, on finding that the courts lacked subject matter jurisdiction because the terrorism exception to foreign sovereign immunity no longer applied to Iraq. The Supreme Court held that the President did have the authority under the 2003 Emergency Wartime Supplemental Appropriations Act (”EWSAA”) to remove Iraq from the reach of the terrorism exception to the Foreign Sovereign Immunity Act (”FSIA”); that an EWSAA catch-all provision was not rendered inapplicable because Congress had not specifically contemplated the terrorism exception in drafting it, as “the whole value of a generally phrased residual clause, like the one used in the second proviso, is that it serves as a catchall for matters not specifically contemplated — known unknowns, in the happy phrase coined by Secretary of Defense Donald Rumsfeld.” Slip op. at 10. The Court then held that the presidential declaration that the terrorism exception would be “inapplicable” to Iraq could be the basis for precluding a suit against Iraq for pre-declaration conduct, because the declaration of inapplicability was not equivalent to retroactive application of a removal of Iraq from the list of states sponsoring terrorism: “Laws that merely alter the rules of foreign sovereign immunity, rather than modify substantive rights, are not operating retroactively when applied to pending cases.” Slip op. at 15.
• Boyle v. United States (Opinion of the Court by Alito, J., joined by Roberts, C.J., Scalia, Kennedy, Souter, Thomas, Ginsburg, JJ.; dissent by Stevens, J., joined by Breyer, J.) (certiorari to U.S. 2d Cir.) (RICO - association-in-fact enterprises). Affirming the judgment of the Court of Appeals that the district court properly instructed the jury as to the requirement of a “structure” for liability of an association-in-fact under the Racketeering Influenced and Corrupt Organizations Act (”RICO”). The Supreme Court held that RICO’s extension of liability to “any” “association in fact” was broad an expansive, and could not be restricted to an “extratextual” limitation to business-like entities. The Court then held that an association-in-fact must have a structure, comprised of a purpose, relationships among those associated with the enterprise, and sufficient longevity to allow pursuit of the enterprise by the associates. The Court held that this structure must be “ascertainable,” but that instructing the jury as to such would be redundant, as the finding of structure by the jury has inherent in the finding that the structure could be ascertained. The Court then held that the structure must be separate from the RICO activity itself, in that the structure is a separate element to be proved, but not in that the structure may not be inferred from the roles played by participants in the underlying criminal activities. The Court rejected the petitioner’s argument that RICO associations-in-fact must meet other, more specific requirements: “Such a group need not have a hierarchical structure or a ‘chain of command’; decisions may be made on an ad hoc basis and by any number of methods — by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall squarely within the statute’s reach.” Slip op. at 9. The Court held that the district court’s jury instructions comported with this reading of the unambiguous terms of the statute, by instructing the jury simply that it must find the existence of an association as a separate element, that it needed to have the structural attributes inferrable from the statutory language, and that “there was ‘an ongoing organization with some sort of framework, formal or informal, for carrying out its objectives’ and that ‘the various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.’” Slip op. at 12. Dissenting, Justice Stevens wrote that “Congress intended the term ‘enterprise’ as it is used in [RICO] to refer only to business-like entities that have an existence apart from the predicate acts committed by their employees or associates.” Stevens op. at 1.
• Caperton v. A.T. Massey Coal Co. (Opinion of the Court by Kennedy, J., joined by Stevens, Souter, Ginsburg, Breyer, JJ.; dissent by Roberts, C.J., joined by Scalia, Thomas, Alito, JJ.; dissent by Scalia, J.) (certiorari to W. Va. S. Ct.) (judicial recusal - campaign contributions). Reversing judgment of the West Virginia Supreme Court of Appeals on basis of violation of due process by failure of judge who received campaign contributions from party to recuse himself. The Supreme Court held that, under the circumstances of the case - after a trial court verdict but prior to the appeal, an entity facing a $50 million adverse jury verdict supporting a state supreme court justice candidate’s campaign against an incumbent justice through (1) donation by the entity’s chairman of the statutory maximum individual donation to the candidate’s campaign, (2) donation of $2.5 million by the entity to a § 527 organization (more than two-thirds of the organization’s funding) that issued ads supportive of the candidate, (3) expenditure of $500,000 in independent expenditures in support of the candidate, a $3 million total that was more than $1 million greater than the amount spent by both candidates’ campaign committees combined - due process required judicial recusal by the successful candidate/justice once the case reached the appellate court. The Court observed that its precedent had constitutionally mandated recusal in the past based on a concern “with a more general concept of interests that tempt adjudicators to disregard neutrality.” Slip op. at 8. After a review of its precedent on judicial recusal, the Court announced, “The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Slip op. at 11. The Court observed further that judges cannot rely on their own assessments of their actual prejudice: “The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Slip op. at 13 (internal citations and quotation marks omitted). As to the case before it, the Court held that not every campaign contribution to a judge will result in an objective finding of bias requiring recusal, but that the extraordinary level of financial assistance rendered to the justice’s campaign in this case creates “a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” Slip op. at 14. The Court noted that the temporal relationship between the contributions, the judicial election, and the pendency of the contributor’s case is “critical” to the analysis. The Court held, “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.” Slip op. at 16. Dissenting, Chief Justice Roberts opined that the majority’s formulation would undermine public confidence in the judicial impartiality, because it did not provide clear standards by which the public could understand whether a judge was truly biased: “[T]he standard the majority articulates — ‘probability of bias’ — fails to provide clear, workable guidance for future cases. At the most basic level, it is unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” Roberts Op. at 4. Chief Justice Roberts then identifies forty areas of uncertainty he charges are opened up by the majority opinion, concluding that the majority opinion “requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?).” Roberts op. at 10. Justice Scalia likewise opined in dissent that the majority’s opinion would lead to an undermining of public confidence in the judicial system: “What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court’s opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated — and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means.” Scalia op. at 1.
• United States v. Denedo (Opinion of the Court by Kennedy, J., joined by Stevens, Souter, Ginsburg, Breyer, JJ.; Roberts, C.J., concurring in part and dissenting in part, joined by Scalia, Thomas, Alito, JJ.) (certiorari to U.S. Ct. App. for Armed Forces) (appellate jurisdiction - writ of coram nobis). Affirming the judgment of the Court of Appeals of the Armed Forces (”CAAF”) that Article I military appellate courts have jurisdiction to hear writs of coram nobis brought to challenge the judgment of a military court that has affirmed a conviction. The Supreme Court held that the scope of the availability of coram nobis relief was a separate jurisdiction question from questions regarding whether he was actually then entitled to such relief, and that the only question before it was the jurisdictional availability of the writ, not the petitioner’s ultimate entitlement to relief. “The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. Under the premises and statutes we have relied upon here, the jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.” Slip op. at 12. While concurring with the majority that the Court had jurisdiction to review the question, Chief Justice Roberts dissented from the holding that military courts have jurisdiction to entertain applications for writs of coram nobis, finding that the military courts’ Article I jurisdiction was statutorily limited “at every turn,” and that principles applicable to Article III courts could not be applied to Article I courts in the absence of statutory prescription.
• United States ex rel. Einstein v. City of New York (Unanimous opinion of the Court by Thomas, J.) (certiorari to U.S. 2d Cir.) (qui tam - timeliness of appeal). Affirming the judgment of the Second Circuit that Fed. R. App. P. 4’s 30-day time limit - as opposed to the 60-day time limit for actions where the United States is a party - applies to notices of appeal in qui tam actions brought under the False Claims Act (”FCA”) where the United States has declined to intervene as a party. The Court held that the United States is not a party to every FCA quit tam action, but is only a party for Fed. R. App. P. 4 purposes when it has formally intervened.