Tough Cases Await U.S. Supreme Court Justices

Marcia Coyle

The National Law Journal

The U.S. Supreme Court returns this week after a monthlong break to what may be potentially the term's most difficult and significant decisions affecting business, employees, the environment and civil rights.

The high court's work thus far has produced no blockbusters, agree most Court watchers and litigators, but there have been important rulings in the areas of pre-emption -- increasingly a concern of business and consumers -- employment discrimination and criminal procedure.

The justices have heard arguments in 50 cases (counting consolidated cases as one) and have issued 15 signed merits decisions. They have also handed down six unsigned, per curiam rulings.

Looking ahead, the Court will hear 18 cases in its February and March sessions. At press time, no arguments had been scheduled for April, but 14 granted cases remain unscheduled, including two potential landmark civil rights cases: one, a challenge to the heart of the Voting Rights Act, NAMUD v. Holder, No. 08-322, and another, Ricci v. DeStefano, nos. 07-1428, 08-328, raising issues of reverse discrimination and disparate impact in promotion tests for Connecticut firefighters.

If the Court strikes down Section 5 of the Voting Rights Act, that decision "will reverberate" throughout the country, "given the results of the election," and within the Court itself, said Thomas Goldstein, co-chairman of the litigation and Supreme Court practices at Akin Gump Strauss Hauer & Feld, at a recent Washington, D.C., Legal Foundation briefing.

The Court has taken about 15 percent more cases this term than last, noted Thomas Hungar, chairman of the appellate and constitutional law practice in the Washington, D.C., office of Los Angeles' Gibson, Dunn & Crutcher. Besides having room for more cases, the former deputy solicitor general suggested, the Court has "lowered the bar a bit" for granting review. For example, the Court took two environmental cases this term in which the government, a losing party, had not sought review.

PRE-EMPTION TRIO

The Court has granted review in three pre-emption cases this term. Of those, it has issued one decision, Altria v. Good, No. 07-562, finding no federal pre-emption of state law challenges to the advertising of "light" cigarettes. A key financial pre-emption case is unscheduled: Cuomo v. the Clearing House, No. 08-453, asking whether federal law pre-empts the New York attorney general's effort to enforce state fair lending law against national banks. And the closely watched Wyeth v. Levine, No. 06-1249, awaits decision on the issue of whether Food and Drug Administration drug labeling requirements pre-empt state products liability claims.

"Those three, individually and together, are an interesting and important package," said Mark I. Levy, head of Atlanta-based Kilpatrick Stockton's Supreme Court and appellate advocacy practice, adding that these decisions often are closely divided and unpredictable. Levy and Hungar said federal pre-emption is an area in which the change in administrations likely will have an impact in the Supreme Court. Pointing to the Cuomo case, Hungar said, "The career staff at the finance agencies have been very much in favor of pre-emption and have led the charge to provide unified business regulation. The Obama administration is skeptical."

Besides pre-emption, three other challenges are potentially significant for business, employees and unions, said Levy.

The Court's only punitive damages-related case -- Philip Morris v. Williams, No. 07-1216, argued in December 2008 -- challenges the Oregon Supreme Court's alleged failure to follow the Supreme Court's earlier decision in that smoking-related death case. "If the justices get into the substance of the punitive damages award, that will make it an important case," said Levy. The business and labor communities, he added, also are awaiting a decision in 14 Penn Plaza v. Pyett, No. 07-581, on whether an arbitration clause in a collective-bargaining agreement can waive a union member's right to bring discrimination claims in court.

And Gross v. FBL Financial Services, No. 08-441, to be heard on March 31, asks whether plaintiffs must show direct evidence of discrimination to get a mixed-motive instruction in a non-Title VII discrimination case. "Mixed motive is where an employer had two reasons, one permissible and one that wasn't, for the allegedly discriminatory act," said Levy. "This gets into the important threshold issue of what the plaintiff has to show."