Recap: Washington Legal Foundation OT06 review panel
on Jul 3, 2007 at 1:18 pm
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 Courtâ€™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 Mondayâ€™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 â€œbite the bulletâ€ 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 Courtâ€™s two main factions (after Thursdayâ€™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 â€œthe ideological lines are sharper now than theyâ€™ve been in 20 years.â€ With Massachusetts v. EPA (05-1120) being the only major 5-4 victory for the liberals, he said itâ€™s been â€œan extraordinarily successful term for conservatives.â€
Englert (remarks beginning at 16:20) focused on the Courtâ€™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 (05â€“1126), decided 7-2; and Credit Suisse Securities v. Billing (05-1157), decided 7-1. (Note: the defendant also prevailed in the Courtâ€™s final antitrust ruling, Leegin Creative Leather Products Inc. v. PSKS Inc. (06-480), though Thursdayâ€™s decision produced a 5-4 split.) Along with other business-friendly rulings this term, the Court has put â€œ a world of hurt on the plaintiffsâ€™ class action bar,â€ Englert said. He cited Stoneridge Investment v. Scientific-Atlanta (06-43) â€“ which examines secondary liability in securities fraud cases â€“ as the Courtâ€™s main business case in OT07.
Brownell (remarks beginning at 24:25) focused on the Courtâ€™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 â€œliving constitution.â€ 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 yearâ€™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 Generalâ€™s recommendations and the Courtâ€™s declining docket, and Justice Alitoâ€™s impact on the Court, among other topics.