What's this? The Supreme Court follows the election returns?

So sayeth the fictional Mr. Dooley, in the quote inevitably resurrected whenever scholars consider the relationship between legislative and judicial branches. See, e.g, this.

And now, an interesting new study published in the Journal of Politics provides some more empirical evidence that the aphorism may be well-founded. The study by two New York University professors, entitled "Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court's Agenda," examines challenges to congressional statutes.

Politics professor Anna Harvey and law professor Barry Friedman studied the Rehnquist Court from 1987 to 2001. Their take-away conclusion:

"The justices were less likely to hear cases involving constitutional challenges to liberal statutes from 1987 to 1994, when the House and the Senate were under Democratic control, than they were from 1995 to 2001, when Republicans had a majority in both chambers."

Instead of looking at what the Court decided, Harvey and Friedman focused on which cases the Court decided to take up.

Their 47-page study is heavy on the formulae and data analysis, and light on the anecdote; indeed, from Suits and Sentences' lay perspective, it could use some more specific examples and narrative swing. A case study or two could bring the topic more to life. But as a serious piece of work, definitely worth checking out.

Suits & Sentences would really like to know: what, exactly, is the Doe Agency?

As reported Wednesday, the Doe Agency is the name given a government entity, presumably part of the intelligence community, that was sued by the wife of a former agency employee. The name of the agency, the nature of the original lawsuit and the location of both the original lawsuit and the subsequent appeal have  all been classified "secret."

So let's do some sleuthing.

First, adding to the bizarreness: this is a one-of-a-kind deal. A PACER search shows no other case, anywhere, involving a party identified as Doe Agency.

Suits and Sentences next thought that a clue might be found in the name of the Justice Department attorney handling the case. The theory: perhaps this same attorney had handled other, non-classified, cases involving the same agency. You know: he would already have the right clearances and be familiar with the culture.

In this case, Justice's trial attorney in Jane Doe v. Doe Agency is Joshua E. Gardner. It appears that Mr. Gardner is a magna cum laude graduate of the University of Central Florida and of the George Washington University Law School. While in law school, he authored a 2000 article in the GW Law Review on the Animal Welfare Act.

OK. This isn't going anywhere, yet....

The Justice Department's branch supervisor on this case is Vincent M. Garvey, deputy director of the department's Federal Programs Branch. Maybe this is getting us somewhere.

Mr. Garvey was part of a 1995 case decided by the U.S. Court of Appeals for the District of Columbia Circuit, entitled Pfeiffer vs. Central Intelligence Agency. The case involved historian Jack Pfeiffer, who had written a report dealing with the CIA's botched Bay of Pigs operation. When he left the Agency, Pfeiffer took with him a copy of the report. He sued in order to get it published, and the United States sued him in return to get the copy back. The government won, amidst various First Amendment-tinged arguments that sound somewhat similar to those raised in Doe v. Doe Agency.

Mr. Garvey likewise helped represent the CIA in the case Boening v. Central Intelligence Agency, involving yet another former Agency employee who wanted to publish something, and in other Google-able cases as well.

Case closed? Unfortunately not. Mr. Garvey has been in the middle of still other cases defending the National Security Agency, including the current Jewel v. National Security Agency case challenging wiretapping programs.

I believe the technical term, so far, is: dry hole.

The late attorney Barbara McDowell was a lovely woman inside and out; Suits & Sentences just wants that personal bias placed right on the table. Now, McDowell's memory is being justly served with a new pro bono initiative established by Drinker, Biddle & Reath.

The McDowell initiative announced this week will  focus on issues including "low-income housing, political asylum, domestic violence, human trafficking, children’s rights, immigration and disparities in community services, and opportunities for economic development." Jerry Hartman, a Drinker Biddle partner and husband of McDowell, will direct the initiative.

Hartman said Thursday that the law firm will start by seeking five cases nationwide, each of which would be selected to have an impact "that will change many people's lives."

McDowell would have appreciated the move. The Fresno native and Yale Law School graduate had first left a law firm partnership to join the Solicitor General's office, where she argued 18 cases before the Supreme Court -- including, famously, two in one day. Instead of cashing in, she then left federal service to establish a new appellate project at the Legal Aid Society of the District of Columbia. She died of brain cancer in January.

Every attorney knows John and Jane Doe, the camouflaging names given individuals whose identities are particularly sensitive.

But what the heck is the Doe Agency? CIA? NSA? The, who knows, National Geo-Spatial Intelligence Agency?

On Wednesday, in the case memorably dubbed Jane Doe v. Doe Agency, U.S. District Judge Ellen Segal Huvelle dismissed Ms. Doe's bid to discover what the heck was going on. Ms. Doe's spouse is said to be a "former employee of the Doe Agency" who had filed a suit in another jurisdiction. Ms. Doe was seeking what she believed should be unclassified information. Naturally, given all the circumlocutions being thrown around, Judge Huvelle noted that the original suit was "ultimately dismissed based on the government's invocation of the state secrets privilege."

It's like double secret probation! No one is allowed to know nothin'.

It's all a bit creepy: the original lawsuit, and the district in which it was filed, and its ultimate appeal, and even the appellate circuit to which it has been appealed all remain classified as "secret." And when Ms. Doe's attorney Mark Zaid drafted a brief in that earlier case, the Doe Agency has kept that brief under lock and key for "classification review." Noted Zaid in one court filing:

"The government, and in particular Doe Agency, has a  history of an intentional pattern and practice of abusing the classification system in order to prevent or minimize embarrassment."

Which doesn't exactly narrow it down. Though, for argument's sake, Suits & Sentences will guess that this case involves the National Security Agency. Just because.

But, in the end, Judge Huvelle concluded that a seal should remain in place on the information sought by Ms. Doe.

Blunt-speaking Rep. John Murtha, D-Penn., has secured protection against a libel suit filed by an aggrieved Marine sergeant caught up in one of the early Iraq War controversies.

On Tuesday, the U.S. Circuit Court of Appeals for the D.C. Circuit overturned a district court judge and determined that Murtha was acting within his official capacity as a congressman when he spoke about Sgt. Frank D. Wuterich. In this fascinating case, Wuterich had claimed Murtha defamed him when the long-time congressman spoke about the role Wuterich's squad played in the deaths of civilians in Haditha in 2005.

Of eight Marines originally charged in the deaths of two dozen civilians in Haditha, five had had charges dismissed and one was found not guilty.

Congressmen, of course, can say whatever they want on the House floor and the Constitution protects them. Speech and Debate clause, and all that. But in this case, Murtha's allegedly defamatory comments were made in press interviews. Invoking what's called the Westfall Act, the Justice Department declared that Murtha had been acting within his congressional purview. A trial judge wasn't so sure, and ordered Murtha to undergo a deposition so the facts could be brought out.

Noted the appellate panel:

"The underlying conduct – interviews with the media about the pressures on American troops in the ongoing Iraq war – is unquestionably of the kind that Congressman Murtha was employed to perform as a Member of Congress. This is especially true in the case of Congressman Murtha, who was the Ranking Member of the Appropriations Committee’s Subcommittee on Defense and had introduced legislation to
withdraw American troops from Iraq."

And, in a nice bit of political symmetry, the appellate panel noted that Murtha's situation was similar to that of Bush administration officials who received Westfall Act protection for their efforts to discredit former ambassador Joseph Wilson. Noted the panel:

"Congressman Murtha’s alleged attempts to discredit Defense Secretary Rumsfeld’s management of the war in Iraq, no less than the comments of the Bush Administration officials in the Wilson case, were directly tied to his congressional political agenda and thus cannot support a claim that the Congressman acted outside the scope of his employment."

The Constitution Project releases today an extensive examination of how the poor are getting shortchanged in court because they lack adequate counsel. As the report authors say:

"Excessive caseloads, inadequate funding, ethical breaches, politicization of the public defender system,  lack of timely appointment of counsel or no appointment at all are depriving the poor of the constitutional right to representation in criminal and juvenile cases."

The full report, "Justice Denied: America's Continuing Neglect of our Constitutional Right to Counsel," is available here.

This is serious work, a 238-page analysis that includes 22 recommendations; notably, the authors insist, states need to adequately fund their public defender arms. Lots of good data here; for instance, Travis County in Texas is said to be likely to need $7 million for indigent defense this year, but the state is only providing $427,000.

So now the United States gets to try someone for the crime of piracy. But how, and where?

The Associated Press reports that Justice Department officials are weighing whether to bring charges in New York or Washington against the surviving Somali pirate. On top of that,  a Kenyan official has offered up his country as a venue.

Traditionally, as we are all now finding out, pirates were considered the "enemy of mankind" and could be tried by any nation. In the United States, this is governed by a 1790 statute -- still considered good law -- currently embodied in Title 18, Section 1651 of the U.S. Code. To wit:

"Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterward brought into or found in the United States, shall be imprisoned for life."

Or, in the alternative, shot in the head by SEAL snipers.

Some of the complications are explored by the always-interesting Ruth Wedgwood, in this essay. Notes Professor Wedgwood:

"Federal piracy law is limited to acts on the “high seas.” That zone begins 12 miles from shore. Closer to the Somali coast, the waters are “territorial seas” and ordinarily are policed by a coastal sovereign—but not here. While the United States can capture these coastal pirates under the Security Council’s decision, the high-seas federal statute has not been adapted to their prosecution."

Kind of an odd little story out of a Palm Springs television station, KESQ, which is reporting that former congressman Gary Condit made an appearance before a grand jury investigating the murder of one-time intern Chandra Levy.

It's odd, in part, because of the sourcing. The story attributes the fact of Condit making a grand jury appearance -- supposedly, he took the Fifth Amendment -- to a "source close to Condit." Who could that source be, and why would someone "close" to Condit put out such information? And, not least, how and why would a Palm Springs television station break the news about a grand jury supposedly meeting 3,000 miles away?

A source "close" to Condit sounds like his attorney, who in the past has been Mark Geragos, but it surely does Condit's reputation no good to have it made public that he is taking the Fifth before a grand jury. In the past, despite some reporting to the contrary, Geragos has publicly denied that Condit took the Fifth in prior grand jury proceedings.

Let's be frank: there aren't a lot of people who are close to Condit right now.

The story is odd, too, because it raises the question of why prosecutors would want to talk to Condit, anyway.

Palm Springs is about 90 miles from Victorville, where murder suspect Ingmar Guandique has been imprisoned on unrelated charges. The Associated Press reported Friday that Guandique has been moved to Oklahoma City, as part of the transfer that will eventually bring him to Washington. Suits & Sentences thinks some dots need to be connected here.

Romeo K. Aboo risked his life as an undercover informant; a snitch, if you will. The federal government paid him $200,000 and sent him on his way. Fair deal?

Aboo thought not. In a lawsuit filed with the U.S. Court of Federal Claims, Aboo said he deserved more for his work that led to the convictions of 12 individuals on money laundering, drug trafficking and other charges. Aboo further claimed federal authorities endangered his life by letting out information that might have let the bad guys know his identity.

Tough luck, guy. In a March 31 decision, the claims court ruled the Drug Enforcement Administration had fully complied with all the legal requirements in its handling of Aboo.

The beauty part about cases like this is the light shed on a shadowy world. The 16-page opinion by Judge Charles F. Lettow spells out how Aboo signed up as a confidential information with the FBI in 2000. This was part of an investigation into a gentleman named Khaldon Esawi, who in time was busted and pled guilty to being part of a nationwide methamphetamine ring. Aboo was working as Esawi's business manager.

For six months, following the arrests of the meth ring leaders, Aboo had to live in a safe house. Aboo also seemed to have a heck of a time securing a promised payment, being passed from one handler to another before the DEA finally agreed to give him the $200,000. One problem, among others: Aboo never got the government to  put down in writing its agreement to pay him. Future snitches, take note.