The Week Ahead
The Court will be closed on Monday in observance of President’s Day.
On Tuesday, the Court is scheduled to hear argument in Gomez-Perez v. Potter (06-1321), on whether the Age Discrimination in Employment Act bars retaliation by public employers for the filing of age discrimination complaints, and in Morgan Stanley Capital Group v. Public Utility 1 (06-1457), on federal regulators’ power to undo wholesale electric power sales contracts. In advance of the arguments, the Court is expected to release orders from the Justices’ private conference last Friday.
On Wednesday, the Court is scheduled to hear oral argument in CBOCS West v. Humphries (06-1431), on whether employees may bring race retaliation claims under 42 USC 1981.
On Friday, the Court is scheduled to hold a private conference. (Click here for our list of petitions to watch.)
Petitioners’ merits briefs are due Wednesday in Davis v. FEC (07-320), Taylor v. Sturgell (07-371), Engquist v. Oregon Dept. of Agriculture (07-474), and Giles v. California (07-6053).
Respondents’ merits brief are due Wednesday in Burgess v. United States (06-11429) and United States v. Ressam (07-455), and Thursday in the consolidated cases of Munaf v. Geren (06-1666) and Geren v. Omar (07-394), and in Florida Dept. of Revenue v. Piccadilly Cafeterias (07-312).
Re American Electric Power: Paul Clement sure is a master of sophistry. He starts with a statute that directs FERC to set just and reasonable rates, and to modify tariffs and contracts as necessary to assure just and reasonable rates; then he says that, because there is more than one way of determining whether rates are just and reasonable, FERC has the power to determine what is meant by just and reasonable rates; that just and reasonable rates means recognition of the “central importance of the stability and reliability of longterm contracts” without regard to the level of rates or the conditions of contract formation; and that courts must give Chevron deference to this interpretation.
So I count for the respondents Kennedy (California ties); Breyer (he couldn’t save the sentencing guidelines, can he save deregulation); Stevens (probably a rate-of-return traditionalist); Roberts and Ginsburg (DC Circuit hates FERC, but Scalia believes in liberty of contract and Thomas believes in NASCAR). Don’t look for endorsement of the 9th Circuit (right-wing hates it), Christoper Wright did a good job of emphasizing the ALJ’s use of a “practically insurmountable” standard. Morgan Stanley has neutralized its fat cat advantage by hiring Walter Dellinger to argue (right-wing hates him), Ted Olson would have been a better choice.
Comment by Roger Friedman — February 18, 2008 @ 1:27 pm
Well ouch, I was stung by Breyer and Roberts’ absence. Ginsburg and Souter for the respondent, Scalia and Thomas for the petitioner; Alito, Stevens and Kennedy on the fence. If not reversed outright, it will be sent back to FERC to see if the particular contract was affected by market manipulation by one of the parties. Probably not sufficient to show manipulation by one of the parties in the spot market or by others in the forward market. Replacing a “practically insurmountable” standard with a virtually impossible one. Blame it all on Enron and the bankers walk — theme of the term.
Comment by Roger Friedman — February 19, 2008 @ 5:42 pm