The Court will face some unusual juxtapositions on the second day of the December calendar, when it hears oral argument in Lexmark International, Inc. v. Static Control Components, Inc. You could think of this as an IP case (applying the Lanham Act), but it’s not from the Federal Circuit. Or as a standing case, but it’s not from the D.C. Circuit. Rather, it’s from the Sixth Circuit, and it doesn’t involve a state-on-top criminal matter in which the court of appeals has gone off (what five of the Justices would regard as) the deep end. Moreover, this is a case in which the Sixth Circuit’s judgment (though probably not its analysis) is likely to appeal to several of the Justices.
Interviewing Chief Justice John G. Roberts, Jr., the composition of courts and dispelling the mystery of the “judicial power.”
In this eight-part interview, Judge J. Harvie Wilkinson, III, of the U.S. Court of Appeals for the Fourth Circuit discusses his background, including: a race for Congress; clerking for Justice Lewis F. Powell, Jr., and the value of humility; the confirmation process and the life and work of a federal appeals court judge; understanding the Court, interviewing its Justices and dispelling the mystery of the judiciary; the effectiveness of the “judicial power”; and reflecting on the rewards of a long life of public service.
“I think when judges sit on the bench — this applies at all levels — we don’t really think about ourselves as ‘conservative’ or ‘liberal.’ Those are labels that people apply to us. And . . . I understand why they do because you have to use short-hand. But, the interesting thing is, I don’t think most judges conceive of themselves as conservative or liberal. We think of ourselves as judges first and foremost and that the judicial calling is such an honorable calling. And when we get on the bench, you know, you’re just so focused on that one case. I mean, you don’t think, ‘Is this a conservative result?’ or ‘Is this a liberal result’ or ‘Which way is the law as a whole moving?’ You’re just thinking about those people before you and how much the case means to them. And our mindset when we go on the bench is, ‘this case is a universe unto itself.’”
- In her column for The New York Times, Linda Greenhouse contends that the contraceptive mandate cases, in which the Court granted review earlier this week, “open a new front in an old war” – “a war not on religion or on women but on modernity.”
- At The Volokh Conspiracy, Randy Barnett discusses the amicus brief recently filed on behalf of originalist scholars (a group in which he is included) in NLRB v. Noel Canning, the challenge to the president’s recess appointments to the National Labor Relations Board.
The petition of the day is:
Issue: (1) Whether the Confrontation Clause prohibits a government expert, who merely reviewed a nontestifying forensic analyst’s certified report, notes, and results and did not personally conduct or observe any of the relevant analyses, from testifying regarding the analyst’s procedures and conclusions and opine on the analyst’s results; and (2) whether the Seventh Circuit erred by applying a harmless-error standard that ignores the impact that testimony admitted in violation of the Confrontation Clause, which the government relied on in closing arguments, had on the jury, and instead focused on the sufficiency of the remaining evidence, directly conflicting with this Court’s precedent and that of other federal courts of appeals.
At 4 p.m. on December 3, the Program on Information Justice and Intellectual Property at American University Washington College of Law will host a post-argument discussion of Lexmark International v. Static Control Components, Inc., in which the Supreme Court will hear oral arguments that morning. Panelists at the event, which is part of the program’s series on intellectual property cases on the Court’s docket this Term, include lawyers from both sides of the case as well as lawyers and law professors representing amici. Registration is free but required for in-person attendance and CLE; the event will also be webcast live. More information is available at the program’s website.
Yesterday the Court granted four cases from the Justices’ November 26 Conference. Two of the cases – Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Store v. Sebelius – were consolidated for one hour of oral argument, during which the Court will consider challenges to the Affordable Care Act’s requirement that employers provide their employees with health insurance that includes access to birth control. The Court also agreed to review Wood v. Moss, a case involving legal immunity for Secret Service agents who are protecting the president, and Clark v. Rameker, a case involving the status of inherited IRAs in bankruptcy. Lyle covered all four grants for this blog yesterday; Matthew Porny did the same for JURIST. Continue reading »
Markham Erickson is a partner in the Washington office of Steptoe & Johnson LLP.
On December 2, the Supreme Court will hear oral arguments in Michigan v. Bay Mills Indian Community, a case involving fascinating questions of jurisdiction and the doctrine of sovereign immunity for federally recognized Indian governments. The irony of the fact that the case will be heard on the heels of Thanksgiving will be appreciated by some observers.
The second day of the December calendar presents a case that almost certainly will divide the Justices – Northwest, Inc. v. Ginsberg, in which the Court will consider whether the Airline Deregulation Act of 1978 (the “ADA”) preempts a rabbi’s claim that Northwest Air Lines breached its implied covenant of good faith and fair dealing when it terminated his membership in Northwest’s frequent-flier program.
What information matters, making decisions, and relating to the Court.
The petition of the day is:
Issue: Whether the Federal Arbitration Act preempts Montana’s rule subjecting arbitration provisions in standard-form contracts to a heightened standard of consent that does not apply to other terms in form contracts.