We asked some of the leading lights of the Supreme Court bar to assess the year just passed and to look ahead to where the justices might take the country in the year to come. Cases on the docket have the potential to reshape securities and civil rights law and relations between the branches of government.
“The Court has a number of interesting cases on the docket for 2014. But no case will be more closely watched by the business community than Halliburton v. Erica P. John Fund, the case on the validity of the fraud-on-the-market presumption in securities class actions. Depending on the outcome, it could be the most significant securities case in a generation.”
­—Kannon Shanmugam, head of Williams & Connolly’s Supreme Court and appellate litigation practice.
“What is often overlooked about the Roberts Court is that it is the most pro-business Supreme Court since the mid-1930s. In cases in many diverse areas—limiting class action suits, enforcing arbitration agreements, restricting liability of pharmaceutical companies, preventing suits against business under the Alien Tort Statute, narrowing employment discrimination laws—this court has protected business at the expense of employees, consumers and all of us.”
—Erwin Chemerinsky, dean, University of California, Irvine School of Law.
“The court ended last term with three huge cases about the meaning of equality. This term figures to be more about First Amendment liberty claims of the kind that may appeal to conservatives. McCutcheon v. FEC involves the right to exceed aggregate federal campaign contribution limits. Harris v. Quinn raises questions about the constitutionality of mandatory union membership. Conestoga Wood v. Sebelius and Sebelius v. Hobby Lobby involve free exercise challenges by secular businesses to the contraception coverage mandate in the ACA. Whether those claims will be vindicated, however, remains to be seen.”
—Paul Smith, chairman, Jenner & Block appellate and Supreme Court practice.
“I think that the [NLRB v.] Noel Canning case is particularly interesting. Although its immediate significance may be less than it previously seemed now that the Senate has changed the filibuster rules for appointments, its outcome will have implications for the balance of power between the Senate and the president. This will become especially important if and when the Senate and the White House are controlled by different parties.”
—Carolyn Shapiro, director, Institute on the Supreme Court of the United States at the Illinois Institute of Technology Chicago-Kent College of Law.
“For 2014, I see no vacancies on the court and I still think patent law is a hot item, but the big case is Halliburton [v. Erica P. John Fund] and that will put another nail in the securities class action coffin by a 5-4 vote.”
—Carter Phillips, chairman, Sidley Austin executive committee.
“Ignoring Congress, a 15,000-page record and the well-documented complaints of minority voters (not to mention the history and purpose of the Civil War amendments to the Constitution), a majority of the Supreme Court champions the ‘equal sovereignty of the states’ and strikes down Section 4(b) of the Voting Rights Act. Southern jurisdictions begin gleefully tweeting and announcing plans to impose voter-suppression laws. Justice Ginsburg calls the majority decision an act of ‘hubris.’ Without a doubt, the most devastating civil rights decision by the court in the 21st century.”
—Sherrilyn Ifill, president and director-counsel, NAACP Legal Defense and Educational Fund.
“In 2013, we arguably saw a more ‘activist’ Supreme Court, whether measured from a liberal perspective (striking down part of the Voting Rights Act) or a conservative perspective (striking down part of the Defense of Marriage Act). In 2014, a significant question will be whether the court continues to follow that arc—such as in cases involving federal campaign contribution limits, the contraception mandate in the health care law, and Congress’ treaty power—or whether it takes a less bold approach.”
—Pratik Shah, coleader, Akin Gump Strauss Hauer & Feld Supreme practice.
“At the Supreme Court, the October 2012 term came in like a lion and left like a lamb. Potential blockbuster cases about affirmative action, gay marriage and voting rights fizzled out like Blockbuster stores, each making important but incremental changes in the law. This year, dry cases about chemical weapon treaties, recess appointments and legislative prayer will join hot-button issues like campaign finance and contraceptive mandates to make for an unforgettable end of the term. And stay tuned to see if the nuking of the filibuster for lower court judges blasts a path for the next Supreme Court vacancy.”
—Josh Blackman, assistant professor, South Texas College of Law, blogger, founder of FantasyScotus.net, and author of a 2013 book on the Affordable Care Act cases.