The U.S. Supreme Court begins its term Oct. 5 with new Justice Sonia Sotomayor on board and a business-heavy docket that seems almost tailor-made to engage and challenge her.
More than half of the 45 cases already set for the new term focus on business -- a greater number than in past terms -- but they touch on a broad smorgasbord of issues, noted Robin Conrad of the National Chamber Litigation Center at a Sept. 23 briefing on the term. "We're struck by the breadth of the docket," she said.
So far, no employment law cases and no environmental disputes have been granted review and, for the first time in a while, no pre-emption cases. But there are potential blockbusters on patents, separation of powers, antitrust law and white-collar crime.
Onto this landscape comes Sotomayor, a one-time intellectual property litigator and a veteran judge from the 2nd U.S. Circuit Court of Appeals.
"She comes from a circuit that prides itself on being the foremost court on issues relating to business. It's ingrained in the culture," said Kannon Shanmugam of Williams & Connolly in Washington. "I don't think she'll have any hesitation to get involved."
In a way, Sotomayor already has jumped into the business docket in her brief time on the Court. During a special reargument Sept. 9 in Citizens United v. Federal Election Commission, a dispute over the ban on independent corporate expenditures in political campaigns, she made a comment that intrigued the business bar. Sotomayor wondered aloud whether it was "the Court's error to start with" to imbue corporations with "human characteristics," including rights accorded to individuals. Justices Ruth Bader Ginsburg and Antonin Scalia also chimed in, and editorials and other commentary have followed.
It was a provocative suggestion that serves as an unusual overlay to the term, with some wondering if Sotomayor has a re-examination of the foundations of corporate law on her to-do list. "It was a remarkable discussion," said Cliff Sloan of Skadden, Arps, Slate, Meagher & Flom's Washington, D.C., office, speaking at the briefing held by the National Chamber Litigation Center. "It will be interesting to see ... whether it's a revealing window into the justice's mind on other issues."
There is fascination with the new justice inside the Court as well as outside. C-SPAN producer Mark Farkas, who had unusual access to the justices for a major series of programs on the Court (which will run starting Oct. 4), said the justices are "very interested" in the newcomer. "It's a human institution," said Farkas. The justices get together often for lunch, but discussion of cases is off-limits, Farkas learned. "It's a collegial body right now, and it has not always been that way."
The term's top business case so far, most agree, is Bilski v. Kappos, a key test of whether a broad range of intangible processes and "business methods" can be patented. After several years of being scolded by the Supreme Court for making patents too easy to obtain, the U.S. Court of Appeals for the Federal Circuit ruled strictly in Bilski, rejecting a patent for a method of hedging in commodities markets. Ruling en banc, the circuit said that for a method or process to gain a patent, it must be tied to a machine or must cause a physical transformation.
In spite of the strict ruling, the Supreme Court granted review, leading many to think the Court will find that the Federal Circuit went too far the other way. "You wonder whether the Federal Circuit can ever catch a break," said Deanne Maynard of Morrison & Foerster.
Bilski will be an interesting test for Sotomayor, said Edward Reines, an IP expert in Weil, Gotshal & Manges' Redwood Shores, Calif., office. "The wing of the Court that is less friendly to patents is down one" with the departure of David Souter, Reines said. Given Sotomayor's eight years as an IP litigator at Pavia & Harcourt in New York, Reines added, "she is unlikely to be as hostile to patents" as Souter was.
A dispute that could affect the kinds of regulatory agencies Congress creates in the wake of the financial crisis is also before the Court. Free Enterprise Fund v. Public Company Accounting Oversight Board -- the latter dubbed "peekaboo," an approximation of its acronym -- arose because members of the board, created by the Sarbanes-Oxley Act, are appointed by the independent U.S. Securities and Exchange Commission.
That places the board too far outside presidential control and accountability, critics say. "The citizenry has no authority to 'throw the bums out,' " said Michael Carvin of Jones Day at a Washington Legal Foundation briefing on the upcoming term. Carvin represents the challengers in the case. Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, dissenting in the decision the high court will review, called it "the most important separation-of-powers case ... to reach the courts in the last 20 years."
Then there's an antitrust case involving professional football that could have "a huge effect on how much economic activity can be insulated" from antitrust scrutiny, said Georgetown University Law Center professor Howard Shelanski. At issue in American Needle Inc. v. National Football League is whether the NFL should be treated as a single entity when it signs a new contract for souvenir headgear on behalf of its member teams.
Media mogul Conrad Black has a case before the Court challenging the interpretation of a law that makes it a crime to deprive a company or its shareholders of "honest services." Critics say it's a catch-all statute that has become an easy tool for prosecutors. At the National Chamber Litigation Center briefing, Andrew Pincus of Mayer Brown said the case could tap into the Court's growing concern over the "huge amounts of unreviewable discretion" given to prosecutors.
In Jones v. Harris Associates, another closely watched case, the question is whether shareholders of a mutual fund can sue the mutual fund advisers for charging excessive fees. The case arises against a backdrop of public protest over financial industry greed.
In addition to the business cases, significant First Amendment and criminal law cases await the justices this term. In Salazar v. Buono, a case being monitored by veterans groups, the Court will referee a battle over a cross placed on federal land in the Mojave Desert. After an establishment-clause complaint was raised, Congress reacted by selling a parcel of land including the cross to a private owner. The Court will consider whether that sale fixes the constitutional problem.
U.S. v. Stevens asks the Court to assess a federal law making it a crime to create or possess depictions of animal cruelty. Though the law exempts journalistic or artistic depictions, a broad range of media, outdoors, hunting and fishing organizations have filed briefs claiming it is overbroad. "Opposing this law is not popular," said David Horowitz of Media Coalition Inc., but it's necessary to stop the creation of the first major exception to the First Amendment -- akin to child pornography or obscenity -- in 25 years.
In criminal law, Graham v. Florida and Sullivan v. Florida will ask whether life imprisonment without parole is a constitutional sentence for juvenile offenders. Invoking the Court's 2005 ruling in Roper v. Simmons, which banned the death penalty for juveniles, a brief by Bryan Stevenson of the Equal Justice Initiative in the Sullivan case said life without parole is an unconstitutional, "terminal, unchangeable, once-and-for-all judgment upon the whole life of a human being."
Ohio State University Michael E. Moritz College of Law professor Douglas Berman said the cases could produce "the biggest" Eighth Amendment decision not involving the death penalty in years.
Even as Court watchers anticipate the beginning of the term, the significance of Justice John Paul Stevens' possible departure at the end of the term is also beginning to sink in. Last month the 89-year-old justice confirmed that he had hired only one law clerk -- the number allotted for retired justices -- for the 2010 term, which begins a year from now. Many, including some of his former clerks, are taking that as a sign he may retire next summer.
If Stevens leaves at the end of the term, said Stephen Wermiel, professor at American University Washington College of Law, a dramatic power shift will occur. He explained that, for decades under a succession of conservative chief justices, the power to assign the writing of the majority opinions when the chief justice is in dissent has rested in the hands of next most senior justices usually viewed as liberal: William O. Douglas, William Brennan Jr., Harry Blackmun and now Stevens. With Stevens gone, the moderate-to-conservative Anthony Kennedy would be the next in seniority, giving him the power to assign opinions to himself or others when Chief Justice John Roberts Jr. dissents.
"Kennedy already has extraordinary power as the swing vote," said Wermiel. "If Stevens goes, it would give him even more power."