SCOTUS, Supreme Court

Looking Back On The Supreme Court Term (So Far)

It hasn't been the sexiest Term ever, but there are still cases worth discussing.

By  
on
New justice, new court.

New justice, new court.

It’s June, and Supreme Court watchers know what that means: the justices are getting restless. Just a few weeks stand between them and nice summer vacations, which they typically spend teaching in beautiful destinations around the world.

But what a few weeks they are! The home stretch of the SCOTUS Term brings with it the most difficult cases, the most politicized cases, the cases with close splits and fiery dissents. Putting off the toughest tasks — Supreme Court justices, they’re just like us.

In a few weeks, the world will be awash in Supreme Court retrospectives, featuring leading litigators and prominent professors. It can be tough to keep track of all the great panels and pieces when late June and early July roll around.

So before the floodgates open, here’s a mini-review of the Term so far. It’s based on an excellent talk by Jason Steed, a top appellate lawyer and partner at Bell Nunnally, delivered last week at UT Law’s 27th annual Conference on State and Federal Appeals. (In case you missed it, on Friday I penned a post about a different conference panel, 6 Tips For Appellate Advocacy (Especially If You’re Appellant’s Counsel).)

(Note: Steed’s presentation was given on Friday, and a few new cases came out today — see SCOTUSblog — but this morning’s cases didn’t alter his analysis much.)

The most notable fact about the current Term, October Term 2016, is that the Court was short a member for most of it. Chief Judge Merrick Garland spent almost a year as an unconfirmed SCOTUS nominee. With the recent confirmation of Justice Neil Gorsuch, Steed said, “the Court now looks a lot like it did in 2015,” before the passing of Justice Antonin Scalia in February 2016.

Sponsored

The Court’s ultimate output should be fairly similar to other recent Terms. According to Steed, SCOTUS will decide around 74 cases, give or take a few. Oral arguments finished up in April, but the Court might issue an opinion or two through “summary reversal,” when it reverses the Ninth Circuit a lower court without even hearing argument.

UPDATE (6/6/2017, 1:15 p.m.): The Court can hand down summary affirmances as well, affirming without oral argument and full briefing. One of the opinions issued yesterday, North Carolina v. Covington, was a summary affirmance.

Presumably because of the Court dodging hot-button issues while shorthanded, there has been a high degree of unanimity so far. As of the time of Steed’s talk on Friday, there were 43 decisions from the Court for OT 2016, and 56 percent were unanimous — significantly higher than the 30 or 40 percent that has been typical of recent Terms. (This morning the Court handed down five decisions, and they were all pretty much unanimous — Justice Gorsuch sat a few out, and Justice Sotomayor filed a concurrence in one, but also joined the opinion of the Court — so the unanimity figure is now even higher.)

The cases decided by a 5-3 margin totaled around 14 percent of the opinions. Typically 5-4 cases amount to about 25 percent of the Court’s docket — but remember, we have a fair number of contentious cases still outstanding. I think of this time as the “calm before the storm,” a period when the Court issues a bunch of boring, unanimous opinions, to clear the deck for the blockbusters.

Which justices agreed with each other the most? Typically Justice Scalia and Justice Clarence Thomas take this honor, but with Justice Scalia gone, the prize goes to Justice Ruth Bader Ginsburg and Justice Sonia Sotomayor (again, based on the cases so far). Going forward, Steed predicts that either Justices Ginsburg and Sotomayor or Justices Alito and Gorsuch will agree with each other the most.

Sponsored

Steed then reviewed a few notable decisions from the Term so far. He focused his remarks not necessarily on the headline-making cases but on cases relevant to appellate practice, since the conference was, after all, a conference for appellate lawyers.

Buck v. Davis, decided in February, did generate some headlines, mainly because it implicated such controversial issues as capital punishment and racial bias. But Steed reminded the audience that the case went up to the Court on procedural grounds: did the Fifth Circuit err in declining to grant a “certificate of appealability” allowing petitioner Duane Buck to advance claims of ineffective assistance of counsel, and did the district court abuse its discretion in denying Buck’s motion under Federal Rule of Civil Procedure 60(b)(6)?

The Court ruled in Buck’s favor, 6-2, with Chief Justice Roberts writing the majority opinion and Justice Thomas writing the dissent. Its holding will have implications for the interpretation of Rule 60 generally, which controls when a party can obtain relief from a final judgment or order in civil litigation. So even lawyers who don’t handle federal habeas cases like Buck should be cognizant of its holding.

Another fun case for legal nerds and #appellatetwitter types: Manrique v. United States. In an opinion by Justice Thomas, the Court held, 6-2, that a defendant wishing to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order (and not just a notice of appeal as to the original order); if he doesn’t, and if the government objects, then he’s out of luck. Moral of the story: when in doubt, file a new notice of appeal. (If you’re the kind of person who revels in such technicalities, check out my novel, Supreme Ambitions, where the timeliness of a notice of appeal actually functions as a plot point.)

And here’s a case with lots of relevance for civil litigators: Goodyear Tire & Rubber Co. v. Haeger. The issue: when a district court exercises its inherent power to sanction a party for discovery abuses, can it order an award consisting of the entire sum spent on legal fees following the start of the abuse, or is the award limited solely to the fees the innocent party incurred because of misconduct? The answer, according to Justice Elena Kagan, writing for eight justices (Justice Gorsuch didn’t participate): the award is limited to the fees incurred because of the misconduct. Awards of legal fees in connection with discovery misconduct are meant to be compensatory rather than punitive in nature, so there has to be a but-for connection between the award and the harm (i.e., no windfall to the innocent party).

The next case discussed by Steed actually came down today: Town of Chester v. Laroe Estates. Writing for a unanimous Court (including Justice Gorsuch), Justice Alito held that a litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) must meet the requirements of Article III standing if that intervenor wishes to pursue relief not requested by a plaintiff. In other words, such an inventor needs “independent” Article III standing.

This might sound pretty dry and technical, but it’s actually a big deal, Steed explained. This issue of intervenor standing, which the Court explicitly declined to decide back in 1986, has popped up several times over the years — for example, in cases when a state governor or attorney general declines to defend a state law (e.g., California not defending the Proposition 8 ban on gay marriage). Steed predicted a split decision, but the Court was actually unanimous in holding that intervenors need their own independent standing, at least when they seek relief not requested by a plaintiff.

Finally, Steed talked about TC Heartland v. Kraft Foods, an important decision about venue in patent cases. For detailed discussion of the case, I refer you to IP columnist Gaston Kroub’s prior post, 3 Things To Watch For Post-TC Heartland. Steed added that this battle might be over, but the war over venue in patent cases is not; there’s another part of the patent venue statute that could allow plaintiffs to sue alleged infringers in districts or states other than the defendant’s place of incorporation. So stay tuned.

What should we expect from the Supreme Court going forward? As SCOTUS followers know, this depends greatly on who is on the Court. Retirement talk centers on the four oldest justices: Justice Ginsburg (84), Justice Kennedy (80), Justice Breyer (78), and Justice Thomas (68). Steed said that there’s no way Justice Ginsburg or Justice Breyer would retire anytime soon (and I agree; just look at their law clerk hiring). He also poured cold water on the rumors of retirement from Justice Kennedy (an opinion I also share; I think AMK might retire next year perhaps, but not this year; note his clerk hiring, and see also this post by Adam Feldman, Why Justice Kennedy May Not Leave The Court Right Now).

What about Justice Thomas? It’s possible he could retire in the next few years, Steed said, mainly because CT is the potential retiree who would probably be least upset by having President Trump selecting his replacement. And given Justice Thomas’s staunch conservatism, he is “the only one who could leave the Court without giving rise to civil war,” as Steed put it. Think of it as the “Scalia effect”: President Trump could replace Justice Thomas with a solid conservative — say, Judge Bill Pryor, a frequent feeder judge to Justice Thomas — without shifting the balance of the Court.

What about if a member of the Supreme Court other than Justice Thomas were to step down? I agree with Jason Steed, an eloquent advocate who found himself momentarily tongue-tied at the prospect: “We may be facing all-out… whatever.”

The audience laughed, nervously. Picking a Supreme Court justice is deadly serious business, but laughter is one of the few ways to maintain one’s sanity in these tumultuous times.

27th Annual Conference on State and Federal Appeals [University of Texas School of Law CLE]
Live blog of orders and opinions (Update: Completed) [SCOTUSblog]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

Topics

, , , , , , , , , , , , , , ,