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Recap: Washington Legal Foundation OT06 review panel

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.