Federal Judiciary

The scenario for Monday

By Akin Gump Supreme Court Practice Group

(NOTE TO READERS:  Scotusblog’s Tom Goldstein, in a post yesterday, discussed the likely outcomes Monday for the Supreme Court’s final decisions of the Term.  The following post is a reader’s guide to the Court’s actions, and to the blog’s planned coverage.  Also note that the blog’s live coverage of the Kagan nomination hearings will begin at about noon Monday.)

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The Supreme Court will assemble promptly at 10 a.m. on Monday, for the closing public session of the October 2009 Term.   It will also be Justice John Paul Stevens’ last public appearance as a member of the Court, since he specified in April that his retirement would take effect “the next day after the Court rises for the summer recess.”  In a gesture of respect, a number of the lawyers in the courtroom for the session will be weariing bow ties — imitating Stevens’ preference.

The day is likely to produce some blockbusters — both in the orders the Court will issue, and in the final rulings it will hand down.  But not all of the major actions will emerge out of the public session; some may be delayed until later in the day, or, perhaps, even until Tuesday morning.  The Court has not yet announced when the final orders of the Term will emerge..

The Court’s day will follow a routine — and so will this blog’s coverage.   Live-blogging will start a few minutes before 10, and will continue until the Court’s public session has been covered.

 The Court’s first action, right after it goes on the bench, will be release of orders granting and denying review of new cases.  For many readers of the blog, the most eagerly awaited orders will be those expected on seven petitions in the government’s massive anti-racketeering lawsuit against major cigarette manufacturers, including a plea by the government to force the industry to turn over $280 billion in profits earned since 1971 and a plea by the companies to hold that they did not violate any law by their marketing and production strategies.

The blog will focus immediately on the order or orders in the tobacco case.  Very quickly, however, the blog will switch away from the new orders to the anouncements of the final decisions in argued cases.  The Court takes very little time to release the orders, and moves on promptly to announcement of decisions.  Given the signal importance of the decisions expected to emerge Monday,  the blog will focus on those immediately, and report them one by one as they are released.

The first opinion that could emerge is a historic ruling on gun rights, resolving whether the Second Amendment restricts the gun-control powers of states, counties, and cities, and not just the federal government’s powers (McDonald v. City of Chicago, 08-1521).   That’s because the author of the opinion (according to Tom’s analysis) could be Justice Samuel A. Alito, Jr.   He is the most junior Justice likely to announce an opinion Monday, and opinions are usually released in reverse order of the authors’ seniority.

Next could come a ruling on student religious organizations’ rights on college campuses (in an opinion by Justice Ruth Bader Ginsburg, as Tom indicated), in Christian Legal Society v. Martinez (08-1371).    That could be followed by a decision determining whether a method of predicting business or economic cycles is eligible for a patent — a decision with potentialy a major impact on software patenting (by Justice Stevens, in Tom’s view).  That case is Bilski v. Kappos (08-964).

The final opinion of the day could determine the constitutionality of a key part of the Sarbanes-Oxley Act, passed in the wake of the Enron scandal — the creation of a special government auditng agency for publicly-traded companies.  The opinion (by Chief Justice John G. Roberts, Jr., on Tom’s list)would be in Free Enterprise Fund v. Public Company Accounting Board (08-861).

Once the opinions are out, the Court will admit lawyers to practice before the Court.  The Chief Justice will then announce the end of the Term, thanking the Court’s staff for its work throughout the Term.  Whether he will say anything about Justice Stevens’ retirement is unknown at this point.  He may announce when the final orders of the Term are to be released.

After the decisions are posted on the blog, the coverage will continue, returning to other items on the morning’s Orders List.  That group of cases is a lengthy one, and it includes several of the cases in which the Court had sought the views of the U.S. Solicitor General. 

The Court probably will not act, on that morning list, on another closely watched case — a test of the constitutionality of federal limits on “soft money” donations to or spending by political parties.  That case had been scheduled for last Thursday’s private Conference of the Justices, but was put over to the Conference that will be held after the public session Monday, according to the Court’s electronic docket.

No explanation was given for that shift, but one possibility is that the Court wanted to take a bit more time to compose an order.  Under federal law, such cases are supposed to be handled by the Court on a speeded-up schedule, and there is a motion to expedite action on the case (Republican National Committee v. Federal Election Commission, 09-1287).

The Conference the Justices will hold after the morning session is generally the one in which the Court wraps up the final orders before recessing for the summer.  It can include discussion of new cases, as well as acting on cases that have been on hold pending decisions in related cases — such as two other Second Amendment cases.

The blog will post one or more stories on the concluding orders, as soon as they become available.  There will not be a live-blog for those orders, but posts will appear quickly on the blog’s regular scroll.  If the Chief Justice announces in the morning when those orders will be released, the blog will alert its readers.   (SPECIAL NOTE: Beginning at about noon Monday, the blog will add into our coverage a live blog of the Senate Judiciary Committee hearings on Justice nominee Elena Kagan, which will be balanced with reports of ongoing analysis of decisions and the further orders at the Court.)

The Court’s recess will continue until the new Term begiins on Oct. 4, unless the Court, as it did last fall, holds a special sitting to hear a campaign finance case.  The GOP “soft-money” case could be set for such a hearing, if the Court does not dispose of it finally on Monday and grants full-scale review through briefing and oral argument.

Full post as published by SCOTUSBLOG on June 27, 2010 (boomark / email).