Yesterday the Washington Legal Foundation hosted a media briefing on the Court’s October 2005 term. Video of the event is available here. Akin summer associate Luke Jones attended the event and has this recap:
Billed as a review of recent decisions affecting “the free enterprise system,†the discussion featured comments and Q&A with our own Tom Goldstein and accomplished high court litigators Miguel Estrada (partner at Gibson, Dunn & Crutcher) and Andrew Pincus (partner at Mayer, Brown, Rowe & Maw LLP).
With ten decisions still outstanding, Goldstein reviewed the term “by the numbers†thus far. Some highlights:
• The Ninth Circuit has been reversed more times (15) than the First, Third, Fourth, Fifth, Seventh, Eighth, Tenth, and D.C. Circuits combined. But, as Goldstein noted, the rate of Ninth Circuit reversals (83% or 15/18) is only slightly above the high court’s overall average (75%). Conspiracy theories notwithstanding, Goldstein surmised that the high court might just be trying to tell the Ninth (and, to a lesser extent, the Sixth) that “it would be good if they followed the law.â€
• No 5-4 opinions written by the new Chief Justice yet. Is this part of his effort to cultivate a reputation as a unifying force? Or is he saving himself for one of the remaining heavyweight cases? Scalia has the most 5-4 opinions (3) so far, but look for more one-vote margins this week.
• Based on the breakdown of opinion authorship, Goldstein predicted, and Estrada agreed, that Stevens will write Hamdan.
• Rapanos and Hudson are clear signs that Kennedy has taken over O’Connor’s role as the Court’s middle vote, according to Goldstein, even if that vote has moved to the right this term. It’s not just about the vote, though. Chief Justice Roberts makes clear in his Rapanos concurrence that Kennedy’s opinion is controlling. And for now, the same appears true for Hudson.
Pincus reviewed the term’s three antitrust cases (Volvo Trucks, Illinois Tool Works, and Texaco) and two patent cases (eBay and Metabolite), noting that although the Court might be taking on more “free enterprise†matters, it has not been providing much guidance to business or lower courts. Pincus wondered whether the benefit of judicial minimalism at the Supreme Court outweighs the subsequent cost of litigation over the unresolved gray areas. He noted, for example, the Court’s lack of direction on the “ancillary restraints doctrine†in Texaco and “tying law generally†in ITW.
Nonetheless, the Court does appear somewhat more attuned to business’s need for answers, according to Estrada. Estrada cited as evidence the two(!) opinions (Kircher and Dabit) involving the Securities Litigation Uniform Standards Act (SLUSA), as well as the antitrust and patent cases.
Pincus and Estrada both discussed the notion that the Federal Circuit, having drawn increased attention from the high court, is the “new Ninth Circuit.†Some have argued that the Supreme Court is attempting to correct for the “capture†of the Federal Circuit by pro-patent interests. Whether or not the Circuit has been captured, the panelists agreed it was too soon to tell where the Supreme Court was headed in this and in other areas affecting free enterprise.
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