Former U.S. Solicitor General Paul Clement
Roberto Westbrook / Legal Times
Calling Chief Justice John Roberts Jr.'s Supreme Court "pro-business" is "far too simplistic" a characterization given the Court's output this term, according to former U.S. Solicitor General Paul D. Clement.
While the 2006-2007 term was labeled pro-business no matter who did the talking, the latest term had a slightly different mix of cases that resulted in a split between plaintiffs and corporate defendants, he said.
Clement was talking to about 250 attorneys, judges and observers as part of his fifth-annual Supreme Court roundup for the Philadelphia chapter of The Federalist Society.
Last year's term was filled with patent and antitrust cases on the business side and all went in favor of the defendant, Clement said. The 2007-2008 term painted a different picture.
The Court is clearly giving more attention to business-related cases, taking a larger percentage even though the overall docket is shrinking. But Clement said the number of employment cases affected the outcome for corporations in the latest term.
The Court ruled 7-to-2 in CBOCS West Inc. v. Humphries that retaliation stemming from allegations of discrimination is a claim is a claim under Section 1981 of the U.S. Code. It ruled in Meacham v. Knolls Atomic Power Lab that the burden of proof in age discrimination cases lies with the employer.
Clement said the Court seemed to have different reactions in employment cases compared to securities cases where it seemed to feel precedent in that area was making it too easy to get past the motion to dismiss stage.
The Court ruled in Stoneridge Investment Partners v. Scientific-Atlantic Inc., for example, that a scheme-liability claim in securities fraud cases cannot broadly extend to individual third parties.
Clement said the Court's ruling in Exxon Shipping Co. v. Baker related to the Exxon Valdez oil spill, was "fascinating." In his majority opinion, Justice David Souter adopted a 1-to-1 ratio between compensatory and punitive damages, ruling punitives should generally be no more than compensatory damages.
The 1-to-1 ratio is "the most pro-defendant, anti-plaintiff rule" of any of the circuit courts that have ruled on the issue, Clement said. It shows the Court might have felt the system had become one-sided in favor of plaintiffs.
On the criminal side, Clement pointed out two cases that offered the first look at how a United States v. Booker-era of discretionary sentencing would look in real life.
Booker eliminated mandatory sentencing guidelines a few years ago, and in this latest term, the Court in Kimbrough v. United States showed it would support a judge's use of discretion.
A district court judge had given the defendant a sentence at the low-end of the discretionary spectrum admittedly because he felt the disparity between crack and powder cocaine sentencing was unfair. The Supreme Court, reversing the 4th U.S. Circuit Court of Appeals, upheld the judge's reasoning for the sentence.
In Gall v. United States, the Court upheld a probationary sentence for a crime that had a suggested sentence of 30 to 37 months.
Clement said the decisions leave little left for appellate review of criminal cases other than procedural errors.
WHAT NEXT TERM COULD BRING
It might have been the first time in 70 years the Supreme Court ruled on a Second Amendment case, but Clement predicts it won't be the last given the result of Justice Antonin Scalia's majority opinion in District of Columbia v. Heller.
The Court in Heller narrowly upheld the right to own a gun but added that there are instances in which state or local government limitations on that right are constitutional. Clement said the Court went out of its way not to clarify the standard of review for when ownership bans are constitutional.
That might suggest the majority couldn't come to agreement on the issue, but, either way, Clement said that could result in several more cases coming the Court's way.
In Riegel v. Medtronic Inc., the Court ruled 8-to-1 that the pre-emption clause of the Medical Device Amendments Act of 1976 bars common law claims regarding the safety of a medical device if the device was approved for marketing by the Food and Drug Administration.
It's difficult to imagine, Clement said, the ruling in Riegel wouldn't have an impact on Wyeth v. Levine, another pre-emption case the Court is set to hear in the fall term of 2008. He said Wyeth has broader implications than Riegel did.
It questions whether federal law pre-empts state tort claims that impose liability on drug labeling the FDA had previously approved.
Clement, who has given his annual roundup as either acting or confirmed solicitor general since he began the program in 2004, stepped down from the post in June. He now serves as a visiting professor at Georgetown University Law Center and as a senior fellow of the school's Supreme Court Institute.
Editor's note: See related June 17, 2008 Legal Times news, "Judiciary Committee to Hold Hearing on High Court's Corporate Misconduct Rulings."
