On Monday, the U.S. Supreme Court returns from a two-week hiatus from oral arguments and begins a busy month where the Justices will hear arguments in 17 cases.  The Legal Pulse asked two leading Supreme Court advocates (both of whom serve on Washington Legal Foundation’s Legal Policy Advisory Board) – Glen D. Nager of Jones Day and Thomas C. Goldstein of Akin Gump Strauss Hauer & Feld LLP – for their views on the October 2010 term as it enters its second month.  We will hear from Mr. Nager today, and Mr. Goldstein on Monday.

Glen D. Nager is the chair of the law firm Jones Day’s Issues & Appeals Practice and serves on WLF’s Legal Policy Advisory Board.

The Legal Pulse: Can you extract a general theme or jurisprudential approach that this group of justices takes toward business-oriented cases from the cases in that area accepted for review this Term?

 Glen Nager:  In a word, no.  Under the Court’s rules, the Court grants review of cases that implicate conflicts among the courts of appeals or otherwise present issues of nationwide importance.  In my experience, applying these general criteria, each individual Justice evaluates petitions for certiorari on a case-by-case basis rather than with an overriding theme for a particular Term in mind.  Specific cases this Term may reflect the changing view of the Court on discrete issues.  For example, the Court’s grant of review in AT&T v. Concepcion – a case that will decide whether businesses can enforce contract provisions waiving the right to a class action in favor of individual arbitration – may reflect the Court’s growing approval of arbitration as an alternative to litigation.  However, the Court’s docket over the course of a Term is shaped mostly by the issues that are litigated in the Courts of Appeals rather than by any choice by the Justices to address particular issues in a systematic fashion. 

The Legal Pulse: What impact will Justice Kagan’s recusals have on the docket, and how do you as an advocate prepare to argue a case where an even split is a possibility?

Mr. Nager:  Most directly, Justice Kagan’s recusals will make the job of the petitioner somewhat more difficult.  A tie vote on the Court results in an affirmance of the decision below; thus, when one Justice is recused, the petitioner must still secure five votes to win, but has one less chance to secure that fifth vote.  This being said, a recusal is unlikely to impact the way an advocate argues a case, as advocates need to rely on good arguments that will persuade a majority of Justices in all events.

The Legal Pulse: Preemption seems to be a dominant theme so far this term.  How can you account for the Court’s interest in this area, and will a more consistent preemption jurisprudence emerge this term?

Mr. Nager: As suggested by my first answer, I do not believe the Court goes out of its way to take and decide preemption cases.  To the extent the Court has been asked more frequently in recent years to decide claims that state activity conflicts with federal law, this increase may simply be a result of the ever-increasing amount of federal law on the books, or increased state activity in areas regulated by federal law. 

The Legal Pulse: With Justice Kennedy now in prime position to decide on authorship of some majority opinions, will his influence on the Court be further increased?

Mr. Nager:  With Justice Stevens no longer on the Court, Justice Kennedy will still only be the assigning Justice in cases in which the Chief Justice and Justice Scalia are not in the majority.  This may result in Justice Kennedy assigning himself one or two cases each Term that Justice Stevens might have instead assigned to himself.  However, since the retirement of Justice O’Connor, Justice Kennedy has tended to receive the writing assignment in some of the most important and closely fought decisions, because of his tendency to be the fifth vote.  Justice Kennedy’s increase in seniority is unlikely to change this situation one way or the other.

The Legal Pulse: Are there any cert petitions currently before the Court or anticipated to be filed which we should watch for?

 Mr. Nager:  In Wal-Mart v. Dukes, an en banc panel of the Ninth Circuit affirmed the certification of the largest employment class action in history, which includes every woman employed for any period of time over the past decade in any of Wal-Mart’s stores and seeks billions of dollars in monetary relief.  Wal-Mart is asking the Court to grant review to decide, among other issues, the question of whether such a class can be certified under Federal Rule of Civil Procedure 23(b)(2).  A negative answer to this question would close off one way in which class action plaintiffs attempt to avoid the more stringent requirements of Rule 23(b)(3).

Another significant class action decision is Philip Morris v. Scott.  In that case, a Louisiana state court issued a $270 million class action judgment against Philip Morris for allegedly misleading consumers as to the addictive effects of nicotine without requiring that any plaintiffs show that they had actually relied on the alleged misrepresentations.  Although Philip Morris has not yet filed its petition for certiorari, Justice Scalia has stayed the judgment while Philip Morris seeks review.  In his opinion granting the stay, Justice Scalia stated that it is reasonably probable that the Court will review the case in order to determine whether the Louisiana court violated due process by doing away with the need to show reliance.  As with Wal-mart v. Dukes,  the Philip Morris case could prompt the Court to make important decisions about the permissible scope of class action claims.

A final case to watch is American Electric Power Co. v. Connecticut.  The Second Circuit held below that states could sue several electrical utilities on the theory that the utilities’ carbon emissions create a public nuisance under federal common law by contributing to global warming.  If the Court grants review, its decision not only could decide whether businesses can be sued for their alleged contributions to global warming, but could also shed light more generally on the extent to which plaintiffs can sue businesses on a public nuisance theory for the indirect harms allegedly caused by their products.