On Wednesday morning, the day before the decision in the Seattle and Louisville school assignment cases, the Washington Legal Foundation held a discussion panel on the Court’s rulings during October Term 2006. The event focused on the impact on the free enterprise system, but the discussion also touched on the declining docket, last Monday’s free speech cases and the rising number of 5-4 decisions. Tom participated in the panel along with Washington appellate lawyers Roy T. Englert, Jr. and F. William Brownwell. An mp3 file of the event now can be download from the WLF web site here.

Tom (remarks beginning at 3:20) discussed the dwindling number of cert grants, noting that both the 68 cases decided after argument and the 72 total cases decided this term were modern lows for the Court. If the justices cannot fill the fall calendar for OT07, he said it should “bite the bullet” and cancel a sitting rather than call for expedited briefing of cases. Tom also noted the high percentage of 5-4 splits this term between the Court’s two main factions (after Thursday’s rulings, 19 of the 24 decisions with 5-vote majorities involved Justice Kennedy joining either the four left-leaning or four right-leaning justices), concluding “the ideological lines are sharper now than they’ve been in 20 years.” With Massachusetts v. EPA (05-1120) being the only major 5-4 victory for the liberals, he said it’s been “an extraordinarily successful term for conservatives.”

Englert (remarks beginning at 16:20) focused on the Court’s antitrust decisions this term, noting that defendants had prevailed with strong majorities in Weyerhaeuser v. Ross-Simmons Hardwood Lumber (05-381), decided 9-0; Bell Atlantic Corp. v. Twombly (05–1126), decided 7-2; and Credit Suisse Securities v. Billing (05-1157), decided 7-1. (Note: the defendant also prevailed in the Court’s final antitrust ruling, Leegin Creative Leather Products Inc. v. PSKS Inc. (06-480), though Thursday’s decision produced a 5-4 split.) Along with other business-friendly rulings this term, the Court has put “ a world of hurt on the plaintiffs’ class action bar,” Englert said. He cited Stoneridge Investment v. Scientific-Atlanta (06-43) – which examines secondary liability in securities fraud cases – as the Court’s main business case in OT07.

Brownell (remarks beginning at 24:25) focused on the Court’s environmental rulings. He called National Association of Home Builders v. Defenders of Wildlife (06-340) and Massachusetts v. EPA the most important decisions of the term, both of which were decided 5-4. Justice Alito authored the opinion in the first case, which was released last Monday, and Justice Stevens wrote the decision in the second case. In the global warming case, Brownell said the majority treated the Clean Air Act like a “living constitution.” He said the decision will spawn further cert petitions on global warming issues, and also predicted the Court will be asked to resolve disputes arising from last year’s fractured Rapanos decision on the scope of the Clean Water Act, and the extraterritorial reach of the Superfund statute.

The audience Q&A session (beginning at 50:00) included discussion of the punitive damages decision in Philip Morris USA v. Williams Estate (05-1256), the correlation between the Solicitor General’s recommendations and the Court’s declining docket, and Justice Alito’s impact on the Court, among other topics.

In a new episode of the SCOTUSblog podcast, Kevin Russell – one-half of the law partnership of Howe & Russell – elaborates on his earlier discussion of how to write a convincing cert. petition when the case presents no direct circuit split; his original post can be found here. (Note that one of the cases discussed in the episode, Klein & Co. Futures, Inc. v. Board of Trade of the City of New York, was granted on Monday, but the podcast was recorded before those orders were released.)

The podcast, available for direct download here, is approximately 9 minutes long and weighs in at 2.1 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

In a new episode of the SCOTUSblog podcast, Troy Cahill discusses applications for stay (including stays of execution) at the Supreme Court. Troy is currently an associate in Akin Gump’s DC office, but prior to joining the firm in 2006, he was a staff attorney in the clerk’s office at the Supreme Court and regularly assisted the Justices and the parties in handling these applications.

The podcast, available for direct download here, is approximately 6 minutes long and weighs in at 1.4 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

Now available on the Pepperdine University Law School website is this webcast of a February 1, 2007 constitutional conversation on the Malibu campus with ABC news Supreme Court correspondent Jan Crawford Greenburg and four constitutional scholars regarding the events depicted in Greenburg’s best-selling new book Supreme Conflict. In addition to Greenburg, the event features Jesse Choper of Boalt; Douglas Kmiec and Ken Starr of Pepperdine and Jon Varat of UCLA.

After the jump, Professor Kmiec has a detailed report of the discussion.

Read the rest of this entry »

In today’s episode of the SCOTUSblog podcast, Tom has a conversation with Professor Charles Fried of Harvard Law School about his new book, Modern Liberty and the Limits of Government. Professor Fried, a former Solicitor General of the United States, also discussed the concept of liberty recently with Justice Breyer in a program that can be seen here.

The podcast, available for direct download here, is approximately 12 minutes long and weighs in at 2.9 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

In today’s episode of the SCOTUSblog podcast, Tom elaborates on his earlier post about the state of the Court’s docket, the cert. process as a whole, and the role of law clerks in screening cases.

The podcast, available for direct download here, is approximately 11 minutes long and weighs in at 2.6 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

Today’s podcast features a discussion about election law at the Supreme Court with Professor Rick Hasen of the Election Law Blog. In this episode, Rick discusses this term’s first opinion (Purcell v. Gonzales) and gives us a preview of the next big election law disputes that look headed to the Supreme Court.

The podcast, available for direct download here, is approximately 16 minutes long and weighs in at 3.5 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

The SCOTUSblog Podcast returns, and our episode today features a discussion of patent law at the Supreme Court with our guest Ken Bass of the firm Sterne, Kessler, Goldstein, and Fox. With the Supreme Court having already heard argument in one patent case this term (MedImmune v. Genentech) and at least two more upcoming (KSR v. Teleflex and Microsoft v. AT&T), Ken is here to explain some of the reasons behind the recent surge in interest by the Supreme Court in this area. Note: Ken is co-counsel with Tom Goldstein for respondent Teleflex in the case KSR v. Teleflex.

The podcast, available for direct download here, is approximately 11 minutes long and weighs in at 2.5 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

In today’s episode of the podcast, we return to our practice pointers series as Howe & Russell partner Kevin Russell discusses how to effectively oppose certiorari. The episode, available for direct download here, is roughly 8 minutes long and weighs in at 2 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts, including the first two episodes in the “Practice Pointers” series, are also available by clicking the “Multimedia” tab.

Today’s podcast features a conversation with Linda Greenhouse, who has covered the Supreme Court beat for the New York Times since 1978; in 1998 she won a Pulitzer Prize for her reporting. Linda recently sat down with Tom to discuss her book, Becoming Justice Blackmun, to give her thoughts on how the two new Justices may change over time, and to comment on the recent controversy over a speech she gave at Radcliffe College. The episode, available for direct download here, is 15 minutes long and weighs in at 3.5 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes by clicking here (or simply search for “SCOTUSblog” in the iTunes Store); to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are also available by clicking the “Multimedia” tab.

Shifting gears from the practice pointers that have been the subjects of our first two podcasts, today’s episode features an interview with a woman whose voice will be instantly recognizable to long-time listeners of NPR: Nina Totenberg.

Nina has been covering the Supreme Court and legal affairs for NPR since she joined that organization in 1975. In her interview with Tom, Nina talks about how the Court has changed over those thirty years, how she operates on days when the Court issues an important decision, and how Justice Ginsburg may be feeling now that she is the sole female Justice. The episode, available for direct download here, is 15 minutes long and weighs in at 7 MB.

To automatically receive the newest episodes of the podcast, you can subscribe to our feed in iTunes from the new link at the top of the homepage, next to the RSS feed, or by clicking here; to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly here.

Previous podcasts are available here and here.

Today, Amy Howe of Howe & Russell elaborates on the practice pointers that Tom outlined in the first episode. In today’s episode of the podcast, Amy discusses mistakes that are occasionally made when drafting a cert. petition – and how to avoid them.

Amy uses examples from the “Questions Presented” page of three recently submitted petitions; if you would like to follow along, you can download the relevant pages of the three cases here.

You can subscribe to the podcast in iTunes from the new link at the top of the homepage, next to the RSS feed link; to use other podcasting or RSS software, you can subscribe to the podcast’s XML feed directly from a link there as well. Alternatively, the second episode is available for download as a stand-alone mp3 here.

Today, we’re introducing a new feature to the blog: podcasts. Every week or two, we will record and post a 5-7 minute segment on a topic that seems amenable to a recording. A principal use of podcasts will be to have guests appear on the blog.

In this first podcast, which lasts approximately 7 minutes, I give an overview of the factors that the Justices consider in granting cert.

You can subscribe to the podcast in iTunes from this link, or, if you have other podcasting or RSS software, you can subscribe to our feed directly here. Alternatively, the premiere episode is available for download as a stand-alone mp3 here.