Experts highlight significant cases from the 2008-09 term, which opens Oct. 6
—By Lori Craig
Four Constitutional law experts discussed a handful of the most significant cases the U.S. Supreme Court will hear during the 2008-09 term at a USC Law event Oct. 1.
Kenneth W. Starr, dean of Pepperdine Law School; Erwin Chemerinsky, dean of the University of California, Irvine, Law School; and USC Law Professors David B. Cruz and Rebecca Brown examined cases that involve issues ranging from voting rights to employment discrimination to business law.
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| Panelists Brown, Chemerinsky, Cruz and Starr |
The discussion, held in USC’s Town and Gown, was moderated by Sydney M. Irmas Professor of Law Elizabeth Garrett, an expert on law and politics.
It drew an audience of more than 200 faculty, students, staff, alumni and local attorneys, the last of whom each received one Minimum Continuing Legal Education credit for attending.
“This time each year, we in the law schools, attorneys, and ordinary citizens turn our attention to the Supreme Court,” Garrett said. “What are the cases the court will hear this term? What are their implications for lower courts and other branches of government? What is the effect of personnel changes on the decisions of the court? And the key question, at least for the last few years, will Justice Kennedy continue to be the swing vote with respect to high-profile cases?”
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| Moderator Elizabeth Garrett, left, and panelist Rebecca Brown |
Among several cases highlighted by constitutional theorist Professor Brown was Winter v. NRDC, which involves a “standoff” between the judicial and executive branches.
The Navy, barred by a Southern California district court from freely using high-decibel sonar, went not to a higher court but to an administrative agency in the White House to obtain permission.
“In a way, you can see that there is a standoff here between the power of the court to apply the law as it sees it — and the appeals court to review that and the Supreme Court to review further if it sees fit — to change the application, versus the government’s claim, which is that the district court didn’t have the power or the right to issue this injunction because the agency had come in after the injunction had been issued and had issued a conflicting order,” Brown said.
Irvine Law School Dean Chemerinsky, a constitutional law and federal civil procedure scholar, spoke about upcoming cases involving criminal law and procedure and the First Amendment.
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| Erwin Chemerinsky |
During Melendez-Diaz’s trial for a cocaine-related charge, the prosecutor produced a certificate that identified the quantity and nature of the drugs in question. The defense objected and, based on a 2004 Supreme Court ruling that said prosecutors cannot use testimonial statements from witnesses even if they’re reliable, demanded that the actual analyst needed to testify.
“Think of all the times in criminal trials where the government uses certificates rather than witnesses: drunken driving cases, cases involving DNA, all the time in drug cases, firearms cases,” Chemerinsky said. “If in every one of those cases the government has to bring in a live witness, it will dramatically change the nature of trials. They will be very inefficient.”
Yet, he noted, the Supreme Court hasn’t been very concerned with efficiency in criminal trials.
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| David Cruz |
“Employment discrimination has been one of the important areas of the docket of the federal courts for some years now,” Cruz said. But in the last several years, with the contraction of the number of cases the Supreme Court hears, “we’ve also seen plaintiffs losing increasingly often, getting reversed on appeal increasingly often. The record of the Supreme Court has been mixed.”
He highlighted a case, AT&T Corp. v. Hulteen, which involves an employee who took a pregnancy leave prior to the 1978 passage of the Pregnancy Discrimination Act (PDA), which classifies pregnancy discrimination as a form of sex discrimination and says that pregnancy-related disability leaves should be treated the same as other disability leaves.
When the employee retired in 1994, she did not receive credit for the pregnancy leave and so received lower levels of retirement benefits. The Ninth Circuit Court of Appeals ruled it violated Title VII, the federal employment discrimination law, as modified by the PDA, because AT&T determined retirement benefits based on discriminatory treatment of the employee’s condition. The company, supported by the federal government with an amicus brief, argues that counting the leave would be improperly retroactive, Cruz said.
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| Kenneth Starr |
Pepperdine Law School Dean Starr, an expert on constitutional law, federal courts, federal jurisdiction and antitrust, discussed cases entailing preemption and business law.
One preemption case, Altira Group v. Good, “brings us back to the tobacco wars,” Starr said.
A class of smokers took issue with Phillip Morris’ advertising of light cigarettes as a way to reduce tar and nicotine intake. The cigarette maker’s claims were based on standardized testing backed by the Federal Trade Commission. The smokers say the ads were misleading because, in fact, people are known to smoke harder and longer when using light cigarettes.
The class brought its litigation in Maine, which has a state law banning misleading or deceptive advertising. Phillip Morris sought dismissal of the case, saying there is a federal law that has an expressed preemption provision and that their labeling is regulated by the Federal Trade Commission and not state law, Starr said.
“The upshot is that the Supreme Court is going to decide one of the most important tobacco industry cases in its history,” Starr said.
In the process, the court may also be called upon to re-visit a landmark tobacco case, in which the court was deeply divided.
“A plurality opinion by Justice Stevens [allowed] some kinds of state tort claims to come in against tobacco companies, [said] no to others, and the result has been, shall I say, a sense of confusion on the part of lower courts, trial lawyers and so forth,” Starr said. “It’s time to straighten this whole thing out.”
The court’s 2008-09 term opens Monday, Oct. 6. The panelists noted that the court looks on track to decide a considerably larger number of cases this year than in recent years. In 2007, the justices ruled on 67 cases, but this time around will likely have a docket of about 90 cases.
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