Supreme Court Term in Brief Review

This wasn’t the most fascinating of terms. Much of the speculation around the Court centers around cases it hasn’t received yet: namely, Obamacare and gay marriage. The most controversial case, I think, was decided much earlier in the term (Synder v. Phelps, 8-1 that the First Amendment protects the Westboro Baptist Church from being sued in tort for infliction of emotional distress when their speech involves matters of the public interest). But there are a few worthy of note. But there are a few cases of note, even though they may not be the headline grabbers.

(I’ll also apologize to all legal scholars for this not being close to Bluebook format. I tried to water it down for a general audience and so I may be guilty of gross oversimplification)

ATT v. Concepcion-the Court by a 5-4 margin enforced the agreement to arbitrate found in the AT&T customer contract and therefore a class action had to be dismissed. This decision could significantly curtail class actions, as customer agreements can now include arbitration agreements in order to protect companies. However, the ATT agreement was one that was very favorable in the sense that ATT would pay costs and some attorneys fees in many situations. Thus, one can speculate about whether an agreement which provides much less incentive for lawyers to prosecute in arbitration would also be upheld (Scalia’s opinion suggests it would).

Wal-Mart v. Dukes: another class suit was brought down, this time because its theory was based on a “culture of discrimination” against women. The class alleged that Wal-Mart discriminated against women, but the Court found that without a policy and without more evidence that the decentralized business culture demanded discrimination that the claims were too individualized to make up a class.

Expect both Wal-Mart & ATT to have a slight impact on politics. These cases together could curtail class actions, which are the bread and butter of many plaintiffs attorneys. As plaintiffs attorneys make up a significant funding wing for the Democrats, I would expect Obama to have to formulate some kind of policy response in order to please them, though I doubt he has the political will to fight the GOP on it. More likely he will use Wal-mart (which grabbed more headlines) and Citizens United to paint a picture of the Supreme Court as conservative judicial activists (as the NYT has done already) and thus appease his base.

Arizona Free Enterprise Club’s Freedom PAC v. Bennett-the Court continued to signal a strong distaste for campaign financing laws, striking down a scheme whereby public funds are given to match private funds given to candidates. Although more money is theoretically more speech, the Court held the opinion that this law in essence punished people who exercised their first amendment right to engage in political speech through political donations. It becomes harder and harder to imagine a scheme which the current Court would uphold.

Finally, Brown v. Enterntainment Merchants Ass’n saw the Court strike down a California law which restricted the sale and rental of violent video games to minor. This case saw an odd alignment with Scalia, Kennedy, Kagan, Ginsburg, and Sotomayor as the majority, with concurrences by Alito & Roberts with dissents from Breyer and Thomas. In brief, video games were found to be protected speech, and for purposes of the First Amendment no different from say violent literature (and Scalia analogizes to Dante’s Inferno). Alito & Roberts concur, but only because the statute was vague. Altio’s concurrence notes that video games may be fundamentally different b/c the act of simulating violent acts is different from say merely viewing or imagining them. Alito is quickly becoming a strong dissenter in many First Amendment cases, suggesting a unwillingness to embrace the vast First Amendment protection the other justices promote (See, e.g., US v. Stevens, Synder v. Phelps). Also of note is that Archbishop Chaput weighed in against the decision based on his personal experience in the aftermath of the Columbine tragedy.

I know I said finally, but I should add one of the cases earlier in the term that has upset many: Connick v. Thompson. In this case, the court held the Orleans Parish District Attorney office was not liable for the offense of one of its prosecutors who withheld evidence in a murder trial (which had a death penalty conviction). It makes for a sensational headline, but in reality all the Court said was that one example of a Brady violation is not sufficient to make a case for systematic indifference to constitutional rights, which is the theory the plaintiff proceeded under. One imagines that a plaintiff could easily meet this burden if other examples were shown (which in Olreans parish would only present a difficulty in deciding which examples to use). Also of note is footnote 21 and the accompanying text of Ginsburg’s dissent, in which she bashes Tulane Law school for its poor curriculum, something well known to all those who attend LSU Law. ;)

5 Responses to Supreme Court Term in Brief Review

  • In fairness to Tulane, Criminal Procedure (unlike Criminal Law a/k/a Criminal Justice) is an elective at most law schools, including LSU. I took Criminal Procedure at Duke back in the day, but do not recall it being required. Not sure I find Justice Ginsburg’s footnote very convincing on the merits though.

  • And what happened to the prosecutor in the case — censured, disbarred, what?
    If his actions weren’t due to DA Office policy then they were due to incompetence or malice on his part. Too bad no lawyer take Thompson’s case to sue him personally.

  • Oh yeah, I’m being mean to Tulane. I don’t know why it would have to be required; if you don’t do criminal law you don’t need the procedure.

    The prosecutor in the case confessed on his death bed that he withheld the evidence, so nothing happened to him (and presumably there was nothing for a lawyer to go after).

  • I took Criminal Law and Criminal Procedure from Wayne LaFave at the U of I, probably the two most useful classes I took at the University of Illinois for my future legal career, not only for the numerous criminal defense cases I have undertaken over the years, but because of the introduction to the manner in which appellate courts can radically reshape an area of the law fairly rapidly.

  • In fairness to Tulane, Criminal Procedure (unlike Criminal Law a/k/a Criminal Justice) is an elective at most law schools,

    What’s non-elective? Here in New York, the Criminal Procedure Law is the fattest and most extensively annotated component of the Consolidated Laws, bar the Civil Practice Law and Rules. Upstate, about 50% of the manpower of the Unified Court System was devoted to processing criminal cases. I think it was higher Downstate.

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