It wasn't exactly a lost fall for the U.S. Supreme Court, but, as the justices don their robes for the first oral arguments of 2010 starting today, there is a sense that the term is just now beginning to take shape.
Blockbuster opinions, riveting oral arguments and a possible retirement loom in the next six months, all promising to make the Court's first three months in session fade quickly from view.
"Just look at what is left," said Lisa Blatt , the new head of Arnold & Porter's appellate practice and a veteran of the solicitor general's office. "I can't recall such an exciting term, month after month, like this one."
This month, she pointed to American Needle Inc. v. National Football League, an antitrust case set for argument Wednesday that the sports world is watching.
Losing defendants in antitrust cases who appeal to the Supreme Court have enjoyed a long winning streak, but in this case it was a plaintiff who appealed to the justices. American Needle sued the National Football League after it awarded an exclusive contract to Reebok for team merchandise. In a surprise move, the NFL also favored high court review, making the outcome hard to predict.
Also being argued this cycle will be a test of the legal status of sex offenders in U.S. v. Comstock, and a follow-up to last year's sleeper decision in Melendez-Diaz v. Massachusetts, which required in-person forensic testimony to satisfy the Sixth Amendment right of defendants to confront witnesses. In the confrontation case Briscoe v. Virginia, "all eyes will be on Justice [Sonia] Sotomayor," said Roy Englert Jr. of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber. Sotomayor, a former prosecutor, has not ruled on the issue before.
Later this term the Court will hear cases applying the Second Amendment right to bear arms to state gun laws, testing the Alien Tort Statute and the law on "material support" for terrorists, and examining the rights of employee privacy for text messaging.
On March 1, the Court will hear Skilling v. U.S., the last in a closely watched trilogy of cases on the constitutionality of the "honest services" fraud law. "We've seen a spectacular failure of government prosecutions over the last year," Blatt said. "It will be quite a crushing blow to the government if the Court scales back or strikes altogether a tool that the government turns to time and time again for its prosecutions of high-profile public and private officials."
But the most anticipated event, which may come as soon as Tuesday, is issuance of the long-awaited ruling in Citizens United v. Federal Election Commission, deciding whether the ban on direct corporate expenditures on elections violates the First Amendment.
The Court heard the case in a special Sept. 9 session . The fact that no ruling has yet emerged in spite of a looming election has triggered more speculation than the whereabouts of Tiger Woods. The presumed arm wrestling within the Court over the case overshadowed the Court's fall sessions.
And then there is the biggest imponderable of all -- the possible retirement of Justice John Paul Stevens by term's end in late June. He has acknowledged hiring only one clerk for next term, and he still seems the most likely to go, though sporadic speculation has justices ranging from Ruth Bader Ginsburg to Antonin Scalia eyeing the exit door.
The political woes of the Democratic Party and its possible loss of a 60-vote supermajority in the U.S. Senate next year may be a factor. Former Stevens clerk Joseph Thai, a University of Oklahoma College of Law professor, said it's unlikely that the vagaries of politics would determine when Stevens retires. "But I do think they make him feel more comfortable about retiring sooner rather than later," Thai said. "He must feel daily what a difference the timing of [Sandra Day] O'Connor's retirement made on the direction of the Court after her departure."