With its blockbuster health care, immigration and other high-profile decisions, the U.S. Supreme Court's last term would seem hard to rival. But the new term may do just that.
"The Supreme Court has a series of cases on the docket and potentially more to come that promise to make this another high-profile, landmark year," says Adam Winkler of the University of California at Los Angeles School of Law.
The justices already have agreed to revisit affirmative action in a case involving the University of Texas. They also are being asked to restrict one of the most important tools of human rights activists, and (in one of several important business cases) they may erect new obstacles to class actions.
The court's internal temperature may rise a few degrees if, as expected, the justices agree to review one or more challenges on same-sex marriage. Also waiting in the wings are cases questioning the constitutionality of section 5 of the Voting Rights Act—the crown jewel of the civil rights movement.
Inside the court building, however, there was a feeling of business as usual during the week before the official October 1 start of the new term. By mid-October the justices had added 17 cases to their argument docket, bringing the total grants for the term at press time to 49. During a panel discussion at American University Washington College of Law, Supreme Court scholar Stephen Wermiel noted that the pace of grants has been very slow. The docket, he added, is declining both in the number of petitions filed and the number of cases decided.
The justices last term decided 64 cases after briefing and argument—the fewest in 22 years. It's too early to tell whether they will surpass last term's tally; they usually continue to add cases to the docket until mid-January.
For now at least, the docket is heavy with business-related cases. "After a term overshadowed by health care and immigration, we're pleased to see the Supreme Court is once again back to business," says Robin Conrad, executive vice president of the National Chamber Litigation Center, adding that 48 percent are business cases and "well within the range we've come to expect from a court that continues to be concerned about lawyer-driven litigation and the high cost of litigation abuses."
Class actions dominate that list. "It is such a change from 10 years ago," notes Lisa Blatt, head of Arnold & Porter's appellate and Supreme Court practice. Blatt suggests that the court's 2011 decision in Wal-Mart v. Dukes brought about a "sea change" similar to the court's ruling in Bell Atlantic v. Twombly in 2007.
In the Wal-Mart decision, a 5-to-4 court held that the thousands of women in a gender bias class action could not meet the requirement of a common legal claim for class certification. In Twombly , the justices raised the bar for plaintiffs pleading an antitrust conspiracy.
"Everyone assumed [ Twombly ] was limited to antitrust, and then along came Iqbal [ v. Ashcroft ]," says Blatt, referring to Iqbal's broader application of Twombly . "The question now is: Does Wal-Mart apply outside the employment context?"
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