Federalist Society holds annual review of 2010 Supreme Court term

By Michael P. Tremoglie | Aug 2, 2011


PHILADELPHIA - Free speech, attorney's fees and preemption cases topped a Federalist Society's annual review of the 2010 U.S. Supreme Court term.

At a Philadelphia chapter symposium held July 26 at Logan Tower, Paul D. Clement, former U.S. solicitor general and now a partner at Bancroft PLLC in Washington, noted the historic change that occurred in the court's composition. For the first time in 35 years Justice John Paul Stevens would not be on the bench, and for the first time Justice Elana Kagan would be. There would also be three women justices for the first time.

He noted that while the court went 12 years without a replacement, there have been four new justices in five years. Despite this, the new judges, he said, have similar voting patterns as those they replaced.

Clement has argued many notable cases before the Supreme Court including Walker v. Cheney, United States v. Moussaoui, Rumsfeld v. Padilla, McConnell v. FEC, Credit Suisse v. Billing and others. He was a finalist in 2010 for the Public Justice Foundation's Trial Lawyer of the Year award.

His review of the October 2010 Supreme Court term addressed a wide range of issues, including rulings related to the First, Fourth, Fifth, Six, Eighth and Eleventh Amendments. He also talked about capital punishment and Freedom of Information Act cases.

In an attorneys' fees issue, Fox v. Vice, the Court ruled 9-0 that a defendant in a Section 1983 action "may recover the reasonable attorney's fees he expended solely because of the frivolous allegations. And that is all."

Justice Kagan, who authored the opinion, wrote, "...[T]he essential goal in shifting fees (to either party) is to do rough justice." She also noted that "Fee-shifting to recompense to a defendant (as to recompense a plaintiff) is not all or nothing. A defendant need not show that every claim in a complaint is frivolous to qualify for fees."

She also emphasized that the collection of fees "should not result in a second major litigation."

Clement highlighted two preemption cases in which the Court found federal law supersedes state law.

In AT&T v. Concepcion, the Supreme Court reversed a lower court ruling that found arbitration agreements unconscionable. The Ninth Circuit held that waiving the ability to litigate was grossly unfair to the consumer and unenforceable under California state law.

This is a case, Clement said, "in which the consumer signs a contract with the cell phone company agreeing to arbitrate all dispute and not to permit any class action claims." He noted that this was something most people do not think about when signing a cell phone contract - he said he "certainly does not."

The Supreme Court reversed the Ninth Circuit 5-4. Justice Antonin Scalia wrote the majority opinion. He wrote that the California law used by the Ninth Circuit to justify its opinion was preempted by the Federal Arbitration Act. Scalia wrote that the congressional intent was to promote quick resolution of conflicts via arbitration.

Justice Clarence Thomas, who usually rejects implied preemption arguments, according to Clement, concurred in the judgment. He construed the federal law to "expressly preempt the application of California's unconscionability rule in this context."

However, Justice Stephen Breyer, who wrote the dissent, claimed the Court's majority ignored the "plain language of the Federal Arbitration Act." Breyer wrote that the Act acknowledges arbitration agreements can be ruled unenforceable on "such grounds as exist at law or in equity for the revocation of any contract."

Breyer also took aim at the prevailing federalist philosophy of Scalia and Thomas. He wrote that the majority ruling was diametrically opposed to state's rights. "...federalism is as much of a question of deeds as words."

Another preemption case Clement mentioned was Brueswitz v. Wyeth, in which the Supreme Court ruled 6-2 that tort actions against vaccine manufacturers brought in state courts were expressly preempted by the National Childhood Vaccine Injury Act of 1986.

In the majority opinion, Scalia wrote, "vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves."

Scalia noted, "This led to a massive increase in vaccine-related tort litigation. Whereas between 1978 and 1981 only nine product-liability suits were filed against DTP manufacturers, by the mid-1980s the suits numbered more than 200 each year. This destabilized the DTP vaccine market, causing two of the three domestic manufacturers to withdraw; and the remaining manufacturer, Lederle Laboratories, estimated that its potential tort liability exceeded its annual sales by a factor of 200. Vaccine shortages arose when Lederle had production problems in 1984."

Breyer wrote a concurring opinion.

"Congress found that a sharp increase in tort suits brought against whooping cough and other vaccine manufacturers between 1980 and 1985 had prompted manufacturers to question their continued participation in the vaccine market," Breyer wrote.

Justice Sonia Sotomayor, who along with Ginsburg dissented, said the court misconstrued the legislative history of the National Childhood Vaccine Injury Act.

"When viewed in the context of the Vaccine Act as a whole, ยง22(b)(1) is just one part of a broader statutory scheme that balances the need for compensating vaccine-injured children with added liability protections for vaccine manufacturers to ensure a stable childhood vaccine market," Sotomayor wrote.

Just as in the AT&T case, Clement commented, this case caused consumer groups concern.

Clement also noted the national Wal-Mart gender discrimination case, in which the Court in a 5-4 decision reversed the Ninth Circuit Court and disallowed what would have been the largest class action in American history. The Court ruled that the lower courts had mistakenly certified a class of 1.5 million employees.

"The crux of this case is commonality-the rule requiring a plaintiff to show that there are questions of law or fact common to the class," Scalia wrote for the majority.

"[A]ny competently crafted class complaint literally raises common 'questions.'... Commonality requires the plaintiff to demonstrate that the class members "have suffered the same injury.... In this case, proof of commonality necessarily overlaps with respondents' merits contention that Wal-Mart engages in a pattern or practice of discrimination."

According to Clement the majority believed that "the existence of a pattern and practice was insufficient to establish common interests of fact or law, as required by Rule 23 because it does not establish that individual managers exercised their discretion in a discriminatory fashion."

In a dissent, Justice Ruth Bader Ginsburg wrote, "A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class questions 'predominate' over issues affecting individuals- e.g., qualification for, and the amount of, backpay or compensatory damages-and that a class action is "superior" to other modes of adjudication."

But unlike Scalia, Ginsburg wrote that "Wal-Mart's supervisors do not make their discretionary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a "carefully constructed. . . corporate culture."

Clement noted, all nine Justices concurred that the claim for backpay, as opposed to injunctive relief, should have been certified as a different rule.

He also opined that prior to the Wal-Mart decision there was a very low threshold for proving commonality. However, he believes in the wake of the Supreme Court's Wal-Mart ruling it will not be so easy for plaintiffs in future class actions.

This was the 8th annual symposium by the Philadelphia Federalists, a lawyer's organization dedicated to "reforming the current legal order." Composed primarily of "conservatives and libertarians," the Federalist Society "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."

Among the Federalist's many supporters are Justices Scalia and Samuel Alito, as well as, Chief Justice John Roberts.

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