supreme courtThe Supreme Court press and other court observers have spilled a lot of ink this past month discussing the cases the Supreme Court took and decided during October Term 2013. Relatively little was said about the cases the court chose not to decide—and it passed over some doozies. But as Rush drummer and lyricist Neil Peart put it so eloquently, “If you choose not to decide, you still have made a choice.”

Pro-Business? Journalists like to portray the Roberts Court as particularly business friendly (see, e.g., here , here, and here; but see here), but businesses asked the Court to take plenty of cases this past term that it instead declined. When the Court denies cert in cases of such importance to business at the same time that it has a historically light docket, it can hardly be said to be pro-business. Companies crave legal certainty, so even if the Court took these cases and decided them against business interests, many times simply settling contested questions would be better than leaving them up in the air.

Wanted: More Business Cases. The Court needs to hear more business cases than it currently is, for at least two reasons. First, the unprecedented proliferation of new regulations by this administration has given rise to many more conflicts of the kind that produce Supreme Court cases. Second, to the extent the Clinton-and-Obama-appointee-dominated lower courts are predisposed against business litigants (or, more charitably, deciding close questions consistently against them), businesses will appeal more cases to the Supreme Court when they believe a lower court has denied them justice. Of course the Supreme Court justices take neither of these criteria into consideration when assessing individual cases, but surely these factors matter when assessing whether the Court leans in favor of business in forming its docket.

The NOT Top 10. Lest you think what follows is just an inventory of cases where Washington Legal Foundation’s own cert requests were thwarted, please note that half of the examples cited below come from cases in which WLF did not participate. However, the discussion is confined to cases that impact free enterprise, individual or business civil liberties, or the rule of law—key touchstones for WLF’s litigation activity. Here are 9 nominees for the top 10 cases the Court should have found room for this past term. Feel free to nominate a 10th case by commenting on this post, and I will update it with the winner.

1) Exxon Mobil v. City of New York—this case raised important liability and standing issues. New York City sued several gasoline manufacturers over potential future injury from MTBE contamination. By declining to decide whether such speculative claims are permitted and whether a federal mandate trumped state-law tort recovery, the Court opened the litigation floodgates. No sooner had the Court denied cert in April than Vermont and Pennsylvania filed similar MTBE lawsuits in June.

2) GenOn Power Midwest v. Bell—when the Court decided in American Electric Power Co. v. Connecticut that the Clean Air Act preempts federal common law lawsuits, it left open the question of whether state common law suits are likewise preempted. Many such lawsuits are now finding liability under state nuisance law for companies that are operating within the limits of their federal pollution permits. By leaving that question unresolved, the Court created enormous uncertainty for businesses, allowing state-law claims to interfere with electricity being generated for interstate markets, and undermining the CAA’s uniform federal regulatory scheme.

3) Sears, Roebuck and Co. v. Butler/Whirlpool Corp. v. Glazer—by declining review of these cases from the Seventh and Sixth Circuits respectively, the Court allowed two courts of appeals to ignore its 2011 Wal-Mart Stores, Inc. v. Dukes decision. By permitting certification of classes of thousands upon thousands of plaintiffs across multiple states who purchased different makes and models of washing machines at different times, the Court deprives the defendants of defenses (and thus due process) that would be available to them in individual lawsuits.

4) Allstate v. Jacobsen—this case presented a parallel opportunity to crack down on class-action abuse by state courts that are ignoring the Wal-Mart decision. By declining to review the Montana Supreme Court’s decision in this case, the justices signaled that they will not police (increasingly rampant) due process violations at the state level and will allow state courts to certify classes that would not be certifiable at the federal level. The certification order will allow a jury to issue a single ruling covering all class members (comprised of every Montana resident who settled a claim with Allstate without a lawyer any time in the past 20 years) and prevent the defendant from asserting valid defenses.

5) W. Scott Harkonen v. United States—this omission is truly criminal. By declining to review the Ninth Circuit’s determination that a factually accurate press release about a drug company’s clinical study was a false or fraudulent statement under the wire fraud statute, the Court permitted the federal government’s ongoing assault against commercial free speech to continue unchecked. The Second Circuit’s Caronia decision points the way on this issue, but until the Supreme Court itself decides that the First Amendment protects truthful off-label promotion of pharmaceuticals, FDA will continue trying to criminalize it, chilling a kind of commercial free speech in the process that saves lives every day.

6) Mingo Logan Coal Co. v. Environmental Protection Agency—in this case the EPA retroactively revoked the defendant’s discharge permit years after it was granted by the U.S. Army Corps of Engineers, jeopardizing billions in invested capital. The Clean Water Act gives the Corps sole authority to revoke permits, and it refused to do so. By failing to review the appeals court decision upholding EPA’s actions, the Supreme Court allowed EPA to arrogate new power, thwart a previously approved project, and traduce rule-of-law principles of finality, predictability, and prospectivity.

7) Kaplan v. Code Blue Billing & Coding, Inc.—few issues presented for the Court’s consideration this term affect as many businesses—and employees—as the status of interns. By declining to reaffirm that an intern is a trainee not entitled to minimum-wage protections under the Fair Labor Standards Act, the Court leaves the issue unsettled. At a time when millions of unemployed young people are looking for a foothold in the workforce, many companies are eliminating unpaid intern programs because the Court left this question in doubt.

8) Hornbeck Offshore Services, LLC v. Jewell—when the Department of Interior issued a drilling moratorium in the Gulf of Mexico after the Deepwater Horizon blown well incident, companies including Hornbeck sued and won a preliminary injunction. DOI then did an end-run around the injunction, including putting a nearly identical moratorium in place to supplant the original one. The district judge sanctioned DOI for contempt, citing “determined disregard” of his order, but the Fifth Circuit reversed. By not weighing in on the scope of a district judge’s authority to sanction Executive Branch conduct intended to evade a court order, the Court eroded the judiciary’s constitutional role.

9) Family Dollar Stores, Inc. v. Scott—when a stinging dissent from Judge J. Harvie Wilkinson III and a Wall Street Journal masthead editorial are not enough to get the Court’s attention, maybe it isn’t your company’s year. The Fourth Circuit misapplied pendent appellate jurisdiction to decide a question that wasn’t even properly before it. Although the Scott plaintiffs had appealed a denial of class certification, the court of appeals did not reach that issue. Instead, it overturned a district court denial of a motion for leave to amend (thus allowing plaintiffs to recant their characterization that the facts of the case were on “all fours” with Wal-Mart after the Supreme Court decided that case adversely to them).

10) Take your pick or suggest your own: How about a civil RICO case like U.S. Food, Inc. v. Catholic Healthcare West or Pfizer v. Kaiser? Or an arbitration case like Strine v. Delaware or perhaps Sonic-Calabasas A, Inc. v. Moreno? An expert evidence gone wild case like Accenture, LLP v. Wellogix, Inc.? The cy pres case of Marek v. Lane? Perhaps you were most disappointed by Drakes Bay Oyster Co. v. Jewell? Or Corey v. Rocky Mountain Farmers Union? Or even worthier candidates not mentioned here. If there was a case that you believe deserved a cert grant this term even more than the 9 listed above, please state your case in the comments and look for an update to this post.

Why Don’t They Grant? Of course there are particular reasons for passing over every case, including those the Court takes. The Court’s clerks excel in finding reasons not to grant certiorari, and I have no insight into case-specific reasons why any of these cases were denied. Nor do I know whether any of these cases got close to the magic four votes needed to grant certiorari. What I do know is that each of these cases and at least as many others denied certiorari presented issues crying out for the Court’s counsel.

At a reunion event this past spring at the University of Chicago Law School, I had the opportunity to pose a question to a trio of Seventh Circuit judges who serve on the faculty there, Chief Judge Diane Wood, Judge Richard Posner, and Judge Frank Easterbrook. I asked what if anything the Circuit Courts of Appeals could do to encourage the Supreme Court, given its shrinking docket, to take more cases. The panel replied that there is little the courts can do other than dissent persuasively. However, Judge Posner challenged the premise of the question: why do you assume the Court should take more cases? If it is answering them wrong, he reasoned, it should take fewer. His was a very Chicago Law kind of response, and the audience chuckled. But I believe the Court should take more cases because it does the country no good—certainly not our free-market economy—to have statutes sitting on the books for as long as the Clean Air Act, the Clean Water Act, the Class Action Fairness Act, or the Fair Labor Standards Act, to name just a few statutes implicated in cases the Court turned down this term, without settling basic questions about their application.

Under the American legal system, the rule of law depends crucially—among other things—on the federal judiciary and particularly the Supreme Court’s taking seriously its obligation to ensure consistency of rules across jurisdictions, adherence to Court precedent by lower courts, and promotion of clarity, certainty, predictability, prospectivity, and other rule-of-law values in its decision making. The current Court does a commendable job on many of these counts for the cases it decides. However, by keeping its docket so small and turning away so many viable cases, the Court misses out on deciding numerous matters critical to the efficient and productive conduct of free enterprise.

Also published at WLF’s contributor page