We have previously examined the cert petition in United States, ex rel. New v. Rumsfeld [now v. Gates], No. 06-691. “New cert petition (pun intended),” 28 Nov 2006. We also noted that the National Institute of Military Justice has filed an amicus brief and that the filing of an amicus brief at the cert stage provides a significant statistical bump in the odds (though still low) of getting a grant.
We later noted that the SG had waived the right of response but predicted that the Supremes would request one. “SG waives response in New,” 4 Dec 2006.
The Supremes have now done so. See http://www.supremecourtus.gov/docket/06-691.htm. The SG’s response is due on 22 January 2007.
When New is rescheduled for conference, we will monitor whether this case makes SCOTUSblog’s list of cases to watch. The issue concerning the scope of review for Article III courts’ habeas review of court-martial convictions is enormously important, has produced disparate approaches in various circuits, and will become even more important if the President were to approve the death sentence in either Loving or Gray. It would be too much to say that a grant is probable, but it certainly doesn’t seem improbable.