The Legal Pulse’s 200th post!

Thomas C. Goldstein is a partner with the law firm Akin Gump Strauss Hauer & Feld LLP where he is the presiding co-leader of the firmwide litigation management committee.  His practice is focused on Supreme Court litigation and he is the founder and publisher of SCOTUSblog.  Mr. Goldstein serves as a member of the Washington Legal Foundation’s Legal Policy Advisory Board.

The Legal Pulse:. What do you find most interesting and intriguing about the October 2010 Term?   

Mr. Goldstein:  It has to be the effect that new Justices Sotomayor and Kagan will have on a Court that for so long was stable but has recently undergone significant changes in its membership.  Like the Justices they replaced, they are more on the left (or presumably so, for Justice Kagan).  But every change on that Court makes a difference.

The Legal Pulse:  What impact will Justice Kagan’s recusals have on the docket, especially on cases that will impact the free enterprise system?

Mr. Goldstein:  I don’t see a big effect.  The number of recusals is large now, but it will shrink as a proportion of the docket.  In terms of cases with a some effect on free enterprise, there are the motor vehicle preemption case (Williamson v. Mazda); the copyright importation case (Costco v. Omega); the Arizona immigration case (Chamber of Commerce v. Whiting); the case about suits against drug makers arising from their government contracts (Astra USA v. Santa Clara County); and the corporate-information FOIA case (FCC v. AT&T).  None of them is really stupendously important.  At most, I bet only one of those produces an evenly divided Court as a result of her recusal.

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 clearer preemption jurisprudence emerge this Term?

Mr. Goldstein:  Mostly, it’s a coincidence.  Every Term, one or two areas seem to have an unusually high number of cases.  It could be patents, securities laws, etc.  This time it’s “preemption,” but preemption defined pretty broadly as all the circumstances in which federal law trumps state law.  In a sense, it’s the Term of the Supremacy Clause.  Regrettably, I don’t see the Term producing an overarching theory of preemption – and a set of legal tests – that provides a lot of guidance for cases arising in other contexts. The Court instead seems committed to deciding each case on the basis of the particular statute under which it arises, and Congress intended preemption to arise in some contexts but not others.

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 even higher?

Mr. Goldstein:  Could it be higher?  There is a theory that Justice Kennedy’s seniority means that for the first time he can assign himself a material number of opinions, so long as he votes with the left in five-to-four ideological cases.  It’s hard to predict, if only for the reason I give above – the Court is shifting, and it’s hard to know how the cases will fall out.  Also, we shouldn’t forget that generally 50% of the cases are unanimous and at most 20% are five-to-four with an ideological dividing line.  But within that important subset of cases in which a single vote makes all the difference, Justice Kennedy is right where he has been since Justice O’Connor’s retirement:  the dead center; the deciding vote.

The Legal Pulse:  What has stood out for you from the Court’s grants and denials of cert since the term formally began?

Mr. Goldstein:  Of the recent grants, I’m most interested in the cases in which the Court will decide what contacts a defendant must have with a forum in order to be subject to suit there.  That’s a significant question for the effect that litigation can have on free enterprise. 

*Supreme Court litigator Glen D. Nager offered The Legal Pulse his thoughts on the term this past Friday in a post which can be viewed here.