Two argument changes set
on Dec 14, 2009 at 1:22 pm
The Supreme Court on Monday took two steps to alter its oral argument schedules this Term, moving up to an earlier date its hearing on a key constitutional challenge to a federal mail fraud law, and adding new time in another case to let the government argue a middle-ground position on a major issue of antitrust law.
The Court set a 1 p.m. argument time on March 1 for the case of Skilling v. U.S. (08-1394), which is the third case that the Court will be hearing this Term on the “honest services” provision of mail fraud law. The Skilling case, however, raises more directly and pointedly than the other two cases the issue of that law’s constitutionality. The Court had heard the other two cases last week, and at least some Justices seemed strongly interested in the constitutional question. The result, apparently, was the decision Monday to advance the Skilling argument — putting it before the Court at least three weeks before it otherwise would have been heard. This will not require a change in the briefing schedule; the Skilling merits brief was filed last Friday, and its broad argument on the constitutional issue may have led the Court to move it up. (The revised February-March calendar is here.)
The Court’s second action came in American Needle v. National Football League (08-661), a case that could modify significantly how federal antitrust law applies to joint action by competing business entities. The Court agreed to add ten minutes to the total argument time, thus making it 70 minutes instead of the usual 60. The extra ten minutes will go to the U.S. Solicitor General, to argue for a position that differs from that of each side in the case.
Sol. Gen. Elena Kagan had asked permission to take part in the argument, and sought 15 minutes to do so. Her motion said that, while the government agreed with American Needle that the Second Circuit Court decision in the case should be nullified and a new look ordered, the government did not share American Needle’s view that single-entity treatment was never legal under antitrust law for business entities that are separately owned and controlled. Sometimes, Kagan contended, joint action by such firms might actually be legal — even, potentially, in this case of the NFL.
The two sides in the case did not object to Kagan’s office taking part in oral argument, but each side opposed giving up any of their usual 30 minutes to the SG. The Court opted to leave each side with its accustomed 30 minutes, then tacked on ten for the SG.
The case is scheduled for oral argument at 10 a.m. on Wednesday, Jan. 13.
