Friday, June 27, 2014

          Rory Little Summarizes the Nearly Complete Supreme Court Term OT13

          With only one day left for opinions to be released, court-watchers everywhere are paying close attention.

          UC Hastings Professor Rory Little reviews the U.S. Supreme Court Term every year. There have been some “blockbusters” this term, Little says, as well as a few surprises. He breaks it all down below.

          Rory LittleDecisions handed down June 25, 2014:

          •    Riley: Cell phones protected against warrantless search even if lawfully seized.
          •    ABC Corp. v. Aereo: Copyright holders protected against internet retransmission of copyrighted works without permission or payment.
          •    Fifth Third Bancorp: ESOP and ERISA fiduciaries. Quite technical.

          Decisions handed down June 26, 2014:

          •    Noel Canning: Historic “recess appointment” power of the President approved; however, the NLRB appointments at issue here were invalid because a “recess” presumptively must be more than 10 days and this one was only 3. Four Justices join a “dissenting concurrence.”
          •    McCullen: Massachusetts’ abortion clinic buffer zone law violates the First Amendment. But not “content based” and other protections for clinics will survive. Four Justices join a “dissenting concurrence."

          What's Left for OT13?

          Two remaining decisions to be announced on Monday June 30.

              -- Hobby Lobby: Is there free exercise of religion for corporations? If so, can corporations be compelled to provide contraceptive benefits that the family owners say violate their religious beliefs?
              -- Harris: Can union dues be collected for lobbying purposes from non-union joiners in the public sector? Or should Abood be overruled?

          Overview of the Term So Far

          The Court granted argument in 75 cases this Term, but there will be only 68 decisions after argument (5 cases were dismissed without decision before, and 2 after, argument). This is one of the lowest totals in decades (even if you add in five additional “summary reversals” decided without argument). That’s less than 8 majority opinions written per Justice -- wouldn’t most lower court Judges just love such a small docket!

          This was the Year of Patent/IP Cases

          There were six cases granted from the Federal Circuit; 5 of 6 were reversals.  Plus at least four other “IP” decisions (including the decision in Aereo). That’s a tremendous amount of Intellectual Property law for one Term. “IP Professors everywhere are scrambling to update their course syllabi for the Fall,” Little jokes.

          The Ninth Circuit was Not the Most Reversed Circuit – Not Even Close

          For the first time in recent memory, another Circuit (the Sixth) had as many cases (11) on the docket as the Ninth. However, reversal statistics can be misleading, for a number of reasons:
          •    Some Circuits only have one case on the docket; so a loss means 100% reversal rate.
          •    The Ninth Circuit hears far more appeals every year than any other Circuit. As a percentage of total cases considered, it has the lowest reversal rate in the country.
          •    There are “silent” reversals and affirmances, where (for example) a Ninth Circuit rule is either affirmed or reversed, but in a case that comes from a different Circuit. Such “silent affirmances” are not tracked.

          Agreement Among the Justices is Common this Term

          Over 50% of the cases were unanimous, which is the same as last Term and about average. Less than a third of the decisions were 5-4, and even the 5-4 decisions were not always the “predictable” blocks. The usual ideological divides do not always hold true; and the fact is, the Justices agree with each other in many instances.

          Still, there are some voting bloc patterns that can be described. And unlike most commentators, Professor Little sees the Justices as falling into groups of three, not just pairs. Although generalizations are dangerous, today’s Court can be seen as comprised of three discrete “voting blocs.”

          •    The three female Justices -- Ginsburg, Sotomayor, & Kagan -- appear the most “liberal” and often agree.
          •    The three “conservatives” also often agree: Scalia, Thomas, and Alito.
          •    And three Justices are beginning to often make up a middle or “moderate” bloc: Chief Justice Roberts, Kennedy, and Breyer.
          •    Interestingly, these voting “blocs” span generations or switches in Presidential parties.
          •    Finally, “polarization” is undoubtedly present. For example, in the cases decided on a 5-4 vote so far, Justices Ginsburg and Sotomayor have not agreed once with Chief Justice Roberts or Justice Thomas; and Justice Scalia has not agreed once with Justice Breyer.

          Justice Kennedy remains the key central vote

          Kennedy was in the majority over 90% of the time this Term. But Justice Kagan is giving him a run for the money – she has undoubtedly become a powerful force on the Court. Her writing style challenges Justice Scalia, and she forges majorities. Meanwhile, Justice Sotomayor continues to write the most powerful dissents. Justice Alito has also established an independent, incisive style and position. The “new generation” of Justices is coming into its own. And Chief Justice Roberts has now clearly become the “leader” of this Court.

          June 27, 2014

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