They’re Back in Business

While much of the government is closing down, the U.S. Supreme Court (Motto: “The Functional Branch of Government”) has convened for its October 2013 Term. This past Monday, there were eight new cert grants (Lyle Denniston has them here). Total snoozers unless you happen to be an IP lawyer (especially one with a keen interest in the latest spats between Judge Posner and the Federal Circuit).

That’s par for the course: upon re-convening, the justices motor through the stuff that’s accumulated over the summer, grant a few easy ones, and deny a ton (that’ll be this coming Monday’s mile-long Order List). The remaining petitions are automatically held over. Prediction: among the hold-overs will be the nine petitions seeking review of the D.C. Circuit’s masterful opinion(s) and decision in Coalition for Responsible Regulation, the GHG case discussed many times on this site.

I’ve looked over the grants to date (Scotusblog has them here) and found a few noteworthy things. For starters, there are fifty-two grants before the Chief has banged the gavel. This means that about two-thirds of this Term’s prospective grants have already been made—a torrid pace, and not good news for anyone else trying to get a foot in the door.

Of the grants, at least 30 are what the Supreme Court commentariat calls “Business Cases.” (The category is a bit unsharp; my count is conservative.) Subtract from the total (52) the usual smattering of criminal and habeas cases (9 to date): almost three-quarters of the Court’s civil docket is “Business” stuff. Slim pickings for Supreme Court reporters with a “God, guns and gays” portfolio.

The “Business Cases” run the gamut from A (Arbitration) and B (Bankruptcy) through P (Preemption) and T (Tax) to Y (Younger Abstention). What’s interesting (okay, interesting to me) is the paucity of straight-up statutory interpretation cases. A few have made it on the docket; they always do. (E.g., “What constitutes ‘changing clothes’ within the meaning of Section 203(o) of the FLSA?” is the pressing question in Sandifer v. U.S. Steel Corp., 12-417.) Overwhelmingly, however, the cases have a distinctly CivPro-ey, FedCourts-ish flavor. In addition to Younger abstention, there are two cases on the reach of personal jurisdiction; two cases about bankruptcy jurisdiction; cases about standing, fee awards, laches, finality for purposes of 28 U.S.C. 1291; etc. A lot of questions about what (federal) courts can and should do.

Dork stuff? Fer sure. But of considerable interest to business—and to the plaintiffs’ bar, which (another prediction) will again take it on the chin.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book is The Upside-Down Constitution (Harvard University Press, 2012).

About the Author

Comments

  1. says

    Professor Greve, I was reading your interesting post regarding the S.C. convening for its October 2013 Term. I certainly understand there are so many different cases for them to resolve that they cannot all be listed here within your post. But, I would like to mention one that maybe of interest to our Scholars and readers here at the Liberty Blog. The Case I am referring to is Greece vs. Galloway. There is so very much going on behind the scenes of our great nation. “The Sixth Circuit Court of Appeals affirmed this week that prayers [offered 'in Jesus' name'] given before legislative bodies are constitutional, despite atheist assertions that such practices cannot withstand legal scrutiny,” reports ChristianNews.net. Dr. Chaps’ citing case law from the Supreme Court, the court reaffirmed the importance that legislative prayer has held throughout U.S. history. “The Senate and House elected their first chaplains in 1789,” the court wrote. “As the Supreme Court explained, ‘it can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment that they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable.’” [Dr. Chaps’ comment: Now four circuit courts allow Jesus prayers (6th, 9th, 7th, 11th), and two circuit courts ban Jesus prayers (2nd and 4th).
    (150 Democrat Congressmen voted for a bill to empower “Atheist Chaplains” to replace Christian Chaplains in the military; 230 Republicans and 44 Dems opposed. “The House on Friday rejected a Democratic proposal to allow nonreligious chaplains to serve nonreligious service members in the military,” reports The Hill.) OBamacare, the government shutdown, the military and religious rights, the Courts’…so much going on..
    Respectfully, John

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>