On the fall docket, few blockbusters — but plenty to watch

The Supreme Court’s fall term opens on Oct. 4 with an historic first – three women on the bench – but as yet, few blockbuster challenges have appeared on the docket.

Court Kremlinologists, however, have plenty to watch. It’s the second term in a row where they will be closely examining a new justice for clues on how she will approach cases – last time, it was Justice Sonia Sotomayor; this time, it’s Justice Elena Kagan.

With Kagan, however, they may find few clues right away: “The idea that by early November we’ll know the impact she will have is unrealistic,” said Clifford Sloan, partner in Skadden, Arps, Slate Meagher & Flom, who noted that it is several years before a justice is fully acclimated to the Court.

And in Kagan’s case, the new term may be even less revealing because of her recusals, most resulting from her prior position as solicitor general of the United States. Kagan has recused in 25 of the 54 cases now slotted for argument.

On the docket, the 2010-11 term has a broad range of significant challenges even while having “slightly fewer, big sexy cases,” in the words of Pamela Harris, head of Georgetown University Law Center’s Supreme Court Institute.

That said, those challenges raise issues involving speech and religion, job discrimination, sentencing, prosecutorial immunity, right to counsel and privacy, among others. The Court also continues its strong interest in business issues. Nearly half of the 52 cases granted review could be considered business-related.

Robin Conrad, executive vice president of the National Chamber Litigation Center, recently noted four recurring themes in the business challenges before the Roberts Court: federal preemption, arbitration, securities and workplace issues. “All of those issues remain high priorities of the business community,” she said.

What follows is a rundown of issues and cases facing the Court this term:

FIRST AMENDMENT

The justices launch the first week of the term with one of two First Amendment cases likely to capture public attention — Snyder v. Phelps on Oct. 6.

That case involves the now well-known, anti-gay protest by pastor Fred Phelps at the funeral of Albert Snyder’s Marine son, killed in Iraq. Phelps and his followers hurled epithets and carried signs reading, “You’re going to Hell” and “God Hates Fags.”

Snyder successfully sued Phelps for intentional infliction of emotional distress and other torts. The U.S. Court of Appeals for the 4th Circuit reversed, holding that the First Amendment protected Phelps’ speech, which was on matters of public concern, and barred the tort recovery.

The intersection of the First Amendment and state tort law is “very, very important” and the case could be the sleeper of the term, said Skadden’s Sloan. He noted that Justice Antonin Scalia has said he would be willing, in the appropriate case, to revisit the landmark New York Times v. Sullivan, which restricted the state tort of defamation when it impinged First Amendment values. “It will be interesting to see how this general issue plays out, and also what we learn about Justice Kagan and the First Amendment,” added Sloan. “As both a practicing lawyer and an academic, the First Amendment was of particular interest to her.”

The second First Amendment case, to be argued Nov. 2, is Schwarzenegger v. Entertainment Merchants Association, which is generating a blizzard of amicus briefs. California is appealing a 9th Circuit decision that struck down its law prohibiting the sale or rental of violent video games to minors. The court rejected the state’s argument that a 1968 Supreme Court decision upholding restrictions on the sale of sexual materials to minors should be extended to violent speech.

If the justices agree with California, “this would be a major upheaval of the law,” said Maureen Mahoney, partner in Latham & Watkins. Six states have similar laws, but they are not in force, she added. The lower courts have been unanimous in invalidating the laws. Industry fears a prohibition based on violence, if approved here, could be extended to books, movies and other forms of speech.

RELIGION

The justices revisit religion issues in two cases: Arizona Christian School Tuition Organization v. Winn, with Garriott v. Winn, and Sossamon v. Texas.

The Arizona cases involve an establishment clause challenge to that state’s tax credit for donations to “school tuition organizations” (STOs). The STOs award scholarships to private school students, and those schools are predominantly religious. The cases also raise an important taxpayer standing question.

Government aid to religious schools and taxpayer standing are both areas that divide the Court, noted Paul Wolfson, partner in Wilmer Cutler Pickering Hale and Dorr. In the Arizona case, he said, it will be interesting to see if the justices extend the principle underlying its approval of school vouchers to Arizona’s unique scheme.

Harvey Sossamon is a Texas state prisoner who sued the state and prison warden when he was not allowed to use the prison chapel. The question for the justices is whether the state or a state official can be sued for damages for violating the Religious Land Use and Institutionalized Persons Act.

EMPLOYMENT

“One of the great paradoxes of the Roberts Court is that it is a wrecking crew for employees’ substantive rights but has a very robust view of employee rights when it comes to retaliation,” said Cyrus Mehri of Washington, D.C.’s Mehri & Skalet.

The Court has taken two retaliation cases thus far which stem from very different factual situations.

In Thompson v. North American Stainless, the Court will decide whether someone closely associated with an employee who complains of discrimination — here the employee’s co-worker fiancé – is protected from retaliation. The fiancé was fired.

Kasten v. Saint-Gobain Performance Plastics Corp. asks whether filing an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under that law’s anti-retaliation provision.

And in a third employment challenge, Staub v. Proctor Hospital, the justices will decide whether an employer, without discriminatory motive, may be liable for firing an employee — here an Army reservist — based on information or advice from biased managers.

CRIMINAL JUSTICE

The Court added several criminal-related cases to its docket with its first orders list of the new term on Sept. 28, among them, Kentucky v. King. In that case, the justices will examine when police can enter a residence without a warrant because of “exigent circumstances” which they created.

The justices also will decide whether a three-judge district court had jurisdiction to issue a prisoner release order to relieve overcrowding in Schwarzenegger v. Plata. They return to two recent issues: the scope of the confrontation clause in Michigan v. Bryant and the use of a civil rights action to gain access to evidence for DNA testing in Skinner v. Switzer.

And the liability of a district attorney for failure to train subordinates on so-called Brady obligations is at issue in Connick v. Thompson. John Thompson spent more than a decade on Louisiana’s death row until his lawyers uncovered exculpatory evidence, never revealed by the prosecution, that led to a retrial and his acquittal. (Supreme Court Insider 9/15/10)

BUSINESS

The justices’ business docket varies widely. Some of the more closely watched cases include:

Four pre-emption challenges, including: two involving torts, Williamson v. Mazda Motor (auto safety standards) and Bruesewitz v. Wyeth (National Childhood Vaccine Injury Act); one restricting employers hiring undocumented aliens (Chamber of Commerce v. Whiting), and one challenging class action arbitration waivers (AT&T Mobility v. Concepcion).

Securities: Matrixx Initiatives v. Siracusano (securities law violation for nondisclosure of adverse event reports) and Janus Capital Group v. First Derivative Traders (investment adviser’s liability for “helping” or “participating in” a company’s misstatements).
Copyright: Costco Wholesale v. Omega (application of first sale doctrine to imported goods manufactured abroad.)

Foreign Companies: Goodyear Luxembourg Tires v. Brown and J. McIntyre Machinery Ltd. v. Nicastro (state court jurisdiction over foreign companies whose products introduced into the “stream of commerce” ultimately injured a resident of that state).

Corporate Privacy: FCC v. AT&T (whether personal privacy exemption from disclosure of certain records under the Freedom of Information Act applies to corporations)

Contact Marcia Coyle at [email protected].