Speakers Predict The Next Big Supreme Court Cases
Affirmative action, presidential power loom large for next term
Another affirmative action battle and a case about presidential appointment power are among the cases to watch as the U.S. Supreme Court begins its next term on Oct. 7, lawyers said at a Federalist Society event.
Tuesday's lunch meeting of the Atlanta Lawyers' Chapter of the group featured remarks by Kevin Newsom, the former Alabama solicitor general and now chairman of the appellate practice group at Bradley Arant Boult Cummings in Birmingham, Ala., and Alexander "Sasha" Volokh, a law professor at Emory University who writes for the Volokh Conspiracy, the legal blog started by his brother, UCLA law professor Eugene Volokh.
Newsom ticked off some key data from the prior term. But he acknowledged the information was less newsy in the age of SCOTUSblog's quickly compiled and easily accessible statistical packages. "This used to be somewhat more novel," Newsom said, "before Tom Goldstein made it available to everyone with a click of a mouse within five minutes of the court's term concluding."
Newsom noted that Justice Sonia Sotomayor had replaced Justice Antonin Scalia last term as the most active questioner, asking 21.5 questions per case, on average. He said that, as usual, Justice Clarence Thomas was the least active questioner, asking no questions last term. Newsom pointed out that last term Thomas surpassed Scalia as the court's most prolific writer, writing 25 opinions (majority, concurring or dissenting).
The Alabama litigator also noted that the U.S. Court of Appeals for the Eleventh Circuit, which covers Alabama, Georgia and Florida, had the federal appeals courts' worst record at the Supreme Court last term, being reversed in six of the six cases in which the high court granted certiorari. Newsom jokingly called the Eleventh Circuit "the worst circuit in the land ... batting 0-fer."
Newsom reviewed some of the most high-profile decisions from the last term. He called the decision to strike down part of the Defense of Marriage Act "sort of the liberals' great victory." The standout win for conservatives was the court's ruling invalidating part of the Voting Rights Act, he said.
Volokh discussed some more obscure decisions from last term, administrative law and antitrust cases of particular interest to him. But Volokh and Newsom dived into a few cases sure to make headlines in the upcoming term.
Newsom said that a case about opening government meetings with prayer, Town of Greece v. Galloway, "will titillate the masses" but most likely will not break new ground.
Volokh predicted the specific practice by a western New York town council would be upheld simply because the prayer at issue is "so watered down as to be meaningless." The professor said an irony of Establishment Clause cases is that "the more people take [a government practice seemingly favoring religion] seriously, the more unconstitutional it is."
Newsom joked that Volokh had told him that, given Emory's ties to the Coca-Cola Co., the professor was duty-bound to root against Noel Canning, a Pepsi bottler, in its challenge to President Barack Obama's three recess appointments to the National Labor Relations Board. But Volokh said the D.C. Circuit opinion declaring the appointments invalid was "the most natural reading of the constitutional text." The Supreme Court granted the Obama administration's cert petition in June but has not yet set the case, National Labor Relations Board v. Noel Canning, for oral argument.