Real Estate & Property Law

Review Of The Supreme Court's Term 2010 - Northern District Of California Chapter, Federal Bar Association Event

By Robert Thomas (inversecondemnation.com)

Thanks to the Federal Bar Association (Northern District of California Chapter), today I had the pleasure of attending a panel discussion of the significant cases from the Supreme Court's recently ended Term.

The panelists discussed "Guns, Free Speech, Criminal Justice, Campaign Finance, Separation of Powers ... and 'Inside Baseball' Views of the Court and Docket" in a packed courtroom at the Ninth Circuit's San Francisco courthouse. The panel was comprised of experienced appellate and Supreme Court advocates, and shared their insights on the "headlines and highlights" of the Term: 

• Hon. Marsha Berzon, Judge, U.S. Court of Appeals for the Ninth Circuit, and former clerk to Justice Brennan

• Professor Rory Little, U.C. Hastings College of the Law, Of Counsel to McDermott Will & Emery, and former law clerk to Justices Brennan, Stevens, and Stewart (ret.)

• Kristin Linskley Myles, Munger Tolles & Olson LLP, and former law clerk to Justice Scalia

• Professor Anne Joseph O?Connell, U.C. Berkeley Law School and former law clerk to Justice Ginsburg

There was too much information disseminated in the hour-and-a-half session to recount it all here, so we'll stick to the more interesting. [Barista's note: it was somewhat difficult to hear the speakers since the audio volume seemed not to be on full; any errors in this recounting are purely mine.] Professor Little, who moderated the panel, started off with some statistics: the Court issued 72 opinions in cases with argument, 12 in cases without argument, and decided 86 cases on the merits. This is an increase in caseload from recent years, but nowhere near the output of the Court during the time Professor Little was a law clerk (he mentioned that the Court in those days decided roughly 160 cases per Term).

The most interesting statistics were the breakdowns in voting patterns. Unanimous opinions accounted for 46% of the decided cases, up from 33% last term. And only 18% were by a 5-4 margin (down from 30% last term). Professor Little noted that this might be the product of Chief Justice Roberts who, at his confirmation hearings, said (and I am paraphrasing here) that one of his goals was to try and produce more opinions that were the result of consensus and not a divided Court. Another interesting tidbit was that this Term was one where the Chief was in the majority more often than Justice Kennedy, and it is the first time in a long time that Justice Kennedy has not controlled. Perhaps this is becoming the Roberts Court more than the Kennedy Court. Now-retired Justice Stevens had the most dissents, while Justice Thomas kept his legacy intact by not asking a single question at oral argument (as far as anyone is aware). Justice Sotomayor is a strong presence at oral argument, like Justices Scalia and Breyer.

One final statistic of note, especially to those of us who practice primarily in the Ninth Circuit: we're no longer the black sheep of the federal courts. Yes, we continue to lead in the sheer number of reversals (but that is likely attributed to the fact that the circuit is by far the largest). But as a percentage, the Ninth Circuit last Term had a reversal rate that was lower that 1/2 of the other thirteen circuits (60% reversals vs. 70% overall).

On to the cases. 

We won't go into great detail on the speakers' thoughts on each of these cases (each case has generated much more analysis and commentary than the speakers could cover in a their allotted 12 minutes, or that we can recount here), so will simply note which cases each found important and perhaps relay a thought or two.

Judge Berzon discussed three cases on vagueness and overbreadth (due process: the "crush video" case (United States v. Stevens), the "material support for terrorists" case (Humanitarian Law Project v. Holder), and the "honest services" case (United States v. Skilling). No Justice was consistent across the three cases, and the supporting rationales were "all over the lot." I don't suppose that was too surprising, given the difficulty the Court has had in the past with establishing consistent standards for when a statute is unconstitutionally vague or overbroad.

Professor O'Connell focused on two administrative law cases, Free Enterprise Fund v. Public Company Accounting Oversight Board and New Process Steel v. National Labor Relations Board, and a civil procedure case, Hertz Corp. v. Friend. The Free Enterprise case invalidated a provision in the Sarbanes-Oxley Act detailing the process for removing a member of the PCAOB, while New Process Steel invalidated the NLRB's stop-gap procedures for dealing with vacancies on the Board. Hertz settled a long-standing circuit split about where a corporation's principal place of business is for diversity jurisdiction purposes (it's the "nerve center").

Ms. Myles went into some depth on the "corporate speech" case, Citizens United v. Federal Election Commission, an opinion focused on the scope of the First Amendment, and on government regulation of the political process. She also detailed the case involving U.C. Hastings Law School's denial of recognition to the Christian Legal Society because it ran afoul of Hastings' "all comers" policy, Christian Legal Society v. Martinez.

Professor Little finished off by pointing out that McDonald v. City of Chicago (the Second Amendment case) was not just an important case for this Term, but is one of the more important cases in quite a while, and described Justice Thomas' opinion as "one of the most interesting Constitutional discussions you will ever read." I must say that I agree with that one. He also singled out Graham v. Florida, the case in which the Court held that the Eighth Amendment forbids a life without parole terms for a juvenile convicted in a non-murder case, and the "business methods patent" case, Bilski v. Kappos. 

Again, thanks to the Federal Bar Association for putting on such an informative event.

Full post as published by inversecondemnation on July 22, 2010 (boomark / email).