This is the final week of argument for the U.S. Supreme Court with four cases left on the docket and dozens more still to be decided. The week also marks the last time Justice John Paul Stevens is expected to hear arguments with his fellow justices.
Stevens is scheduled to sit for his last oral argument Wednesday in Doe v. Reed, one of the term's most controversial challenges. In Doe, the justices will examine a First Amendment speech and privacy challenge to the release of names on petitions for a Washington state referendum on repealing a gay rights law.
The following is a rundown of the term's final four cases.
JUDGE OR ARBITRATOR?
First up today will be Rent-A-Center, West v. Jackson, a case which, say groups such as Public Citizen and Public Justice, could "radically alter" access to the civil justice system.
The case asks the justices whether a federal judge or an arbitrator should decide if an arbitration agreement is "unconscionable" where the parties specifically assigned that issue to the arbitrator.
Antonio Jackson sued Rent-A-Center for race discrimination after he was fired from his account manager job. Rent-A-Center moved to dismiss the suit, arguing that he had signed an arbitration agreement saying any dispute would be resolved in that way. Jackson challenged the agreement as unconscionable, and his former employer countered that an arbitrator should decide the agreement's enforceability, not a court. The 9th U.S. Circuit Court of Appeals ultimately ruled in favor of Jackson.
Rent-A-Center, represented by Robert Friedman of the Dallas office of Littler Mendelson, argues, "This Court has held that where, as here, the parties 'clearly and unmistakably' agree to delegate the issue of arbitrability to the arbitrator, their agreement must be honored."
Jackson's counsel, Ian Silverberg of Hardy & Associates in Reno, Nev., counters that the Federal Arbitration Act does not always require arbitration clauses to be enforced according to their terms. He contends that courts have a "fundamental, statutorily required and time-honored role" of determining whether arbitration clauses meet the requirement of the act before enforcing them.
"If corporations can place their arbitration systems beyond the reach of any substantive judicial evaluation of their fairness, there will be nothing to prevent the arbitration system from devolving into a wild, wild west state of lawlessness," said F. Paul Bland of Public Justice.
But Donald Falk, partner in the Palo Alto, Calif., office of Mayer Brown, who filed an amicus brief for the U.S. Chamber of Commerce, said, "Unconscionability claims are being increasingly used in court to thwart agreed-upon arbitration procedures where they once were reserved for impositions of outrageous terms."
Also set for argument today, Hardt v. Reliance Standard Life Insurance Co., questions the availability of attorney fees after someone proves a violation of the Employee Retirement Income Security Act. The main issue is whether those fees can still be sought if the company changes its position and pays the benefits.
In Hardt, the court ordered the company to recalculate the benefits. But the company decided to pay the original benefits and then challenged the employee's status as the prevailing party in the suit.
The Hardt case may not captivate the media and public, but as one ERISA expert noted, plaintiffs file about 10,000 lawsuits for ERISA benefits annually and they are expensive cases to litigate.
A 'SEEDY' FIGHT
On Tuesday, the justices will hear arguments in Monsanto Co. v. Geertson Seed Farms, a challenge that environmental groups are watching with concern, particularly after their stunning quintet of defeats in the last Supreme Court term.
Geertson successfully sued federal officials for failing to do an environmental impact statement under the National Environmental Policy Act when it deregulated Monsanto's genetically engineered "Round-up Ready" alfalfa. Geertson, environmental groups and others were concerned that the alfalfa would compromise the genetic integrity of their crops.
After Geertson prevailed on its NEPA claims, Monsanto and its licensee intervened in the remedies phase. The district court ultimately issued a permanent nationwide injunction against Monsanto after holding a hearing and receiving documentary evidence. The 9th Circuit affirmed.
In the Supreme Court, Monsanto's counsel, Gregory Garre, a partner in the Washington office of Latham & Watkins, argues that the lower courts erred by creating a new presumption that a NEPA violation establishes the level of harm required for the issuing of a preliminary and permanent injunction.
Garre contends the district court failed to conduct the traditional inquiry into the likelihood of irreparable harm and failed to insist on a showing of irreparable injury that was likely in the absence of an injunction.
Geerston's counsel, Lawrence Robbins, a partner in Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber, argues that the district court applied the traditional balance-of-harms analysis for injunctive relief. The court found that the alfalfa might irreparably harm the nongenetically engineered plants.
"Obviously, what piqued the Supreme Court's interest was Monsanto's argument in its cert petition that somehow injunctive relief was being granted on a relatively routine basis in NEPA cases," said environmental law scholar John Echeverria of Vermont Law School. "I don't think the case bears out that characterization."
The case could be extremely important for the future viability of NEPA, said Steven Jones, a partner at Seattle's Marten Law. "I think one of the reasons the Court took the case is to give further clarification not just to the role of NEPA itself but to the injunctive standard under the act," he said.
On the last day of arguments, two important policies clash in John Doe No. 1 v. Reed, said media law scholar Lyrissa Lidsky of the University of Florida Levin College of Law.
"On the one hand, there's this question of access to government and transparency in government, and on the other side is protection of anonymous speech, a very important and still emerging doctrine," she said.
Doe is a First Amendment challenge to the Washington Public Records law, which requires disclosure, upon request, of the identity of signers of a petition for a statewide referendum. The petition here called for a referendum challenging a 2009 state law expanding the rights of registered domestic partners.
The controversy arose after the petitions were submitted to the state. Several supporters of the law sought the names and addresses of signers, and one organization indicated it would publish them on the Internet. Two petition signers and an organization supporting the law's repeal sought an injunction in federal court. The trial court issued an injunction after finding the signatures were protected anonymous speech. The 9th Circuit reversed, finding the signatures were public acts.
The petition signers, represented by James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., argue that the signatures are core political speech and strict scrutiny should apply.
This case, Bopp said, is about "protecting the people from intimidation when they are engaging in core political speech." His clients are supported by a large number of conservative social and legal organizations, such as the Family Research Council and Alliance Defense Fund.
But Washington Deputy Solicitor General William Collins, backed by an array of media, data and information services and government organizations, counters that an intermediate scrutiny should apply and is satisfied because of "the state's substantial interests in transparency and accountability in government, and providing information to the voters."
"The Supreme Court has demanded a real showing of the possibility of intimidation before being willing to compromise transparency values," Lidsky said. "But anonymity is a big issue right now and privacy too because of the Internet."
KEY PENDING CASES
• Salazar v. Buono: argued Oct. 7: establishment clause challenge to cross erected on government land
• Graham v. Florida; Sullivan v. Florida argued Nov. 9: constitutionality of juvenile sentence of life in prison without parole for nonhomicides
• Bilski v. Kappos argued Nov. 9: patent eligibility of certain processes
• Merck & Co. v. Reynolds: argued Nov. 30: "inquiry notice" and statute of limitations for securities fraud claims
• Black v. U.S.; Weyhrauch v. U.S.; Skilling v. U.S.: Black and Weyhrauch argued Dec. 8; Skilling argued March 1: three challenges to "honest services fraud" law
• Holder v. Humanitarian Law Project: argued Feb. 23: constitutionality of federal law barring material support to designated terrorist groups
• McDonald v. City of Chicago: argued March 2: incorporation of Second Amendment against the states
• Morrison v. National Australia Bank: argued March 29: U.S. lawsuits by foreign investors for foreign market fraud
• Christian Legal Society v. Martinez: argued April 19: challenge to law school's nondiscrimination policy for recognizing student organizations
• City of Ontario v. Quon: argued April 19: Fourth Amendment privacy rights in public employee's text messages