Thursday, December 30, 2010

End of the Year: No Top 10 from Me

    At the end of December it is fashionable to select the top events of the past year: the best sporting events of 2010, the best motion pictures, the most important political events, and the like.
    I will, however, avoid the temptation to select the top appellate decisions of 2010. The prospect of making such a selection is unwelcome: each jurisdiction across the United States has its own candidates, as does each area of law. A decision such as Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), which addresses campaign financing, has an obvious importance to all of us, but less well-known rulings may still be of enormous importance to particular groups in society or to a certain segment of the Bar. 
    In addition, the terms for appellate courts are often not coterminous with the calendar year. For example, the Term of the United States Supreme Court begins in October and generally concludes at the end of June the following year. The sitting of the New York Court of Appeals, the state's highest court, is similar.
    So rather than wade through many appellate rulings, I will simply say that the most important appellate event of 2010 was the appointment of Elena Kagan to the United States Supreme Court. Supreme Court appointments have a very long term effect, and that effect will be even more pronounced because of the ideological divide on the Court. Justice Sonia Sotomayor has been on the Court for about 16 months but already, as a recent New York Times article noted, her presence is felt. That article can be found here.
    It is, of course, far too soon to measure Justice Kagan's impact on the Court and, therefore, the nation. Because I believe it will be significant and long-term, it receives my vote for the top appellate event of 2010.       

Tuesday, December 14, 2010

A Tie Vote in the Supreme Court

    When Elena Kagan was nominated for the United States Supreme Court some opposed the nomination on the grounds that as a Justice she would be required to recuse herself from all the cases with which she had contact while serving as Solicitor General of the United States. This could lead, it was argued, to 4-4 ties in some of these cases. 
    At the time, and now, I considered such opposition as simply conservatives looking for some ground to oppose a liberal nominee. The other eight justices will not grant the writ of certiorari in most of the cases with which she may have contact as Solicitor General, and within a reasonable period of time there will simply be fewer and fewer cases reaching the Court with which she had any contact during her tenure as Solicitor General.
    When there is a tie vote in the Supreme Court the Court simply announces that the Court is evenly divided and affirms the lower court decision which is under review. The decision has no precedential value; the affirmance is issued to afford finality for the litigants in that particular case. 
    Yesterday in Costco Wholesale Corp. v. Omega, S.A., a copyright case, Justice Kagan did recuse herself and an evenly divided Court affirmed the decision of the United States Court of Appeals for the Ninth Circuit. As is usual in such cases the brief Per Curiam opinion does not identify which Justices were on which side of the 4-4 tie. The copyright and patent bar will undoubtedly be rife with speculation over how each Justice voted. The opinion can be found here
    While Justice Kagan has recused herself from other cases the Court has already heard this Term, the possibility of a rare tie vote is hardly grounds to deny a nominee a seat on the high court.

The New York Court of Appeals: the Court of Appeals released opinions in six cases today, all criminal cases. The cases address either the constitutionality of New York's procedure for determining whether a defendant is a persistent felony offender, or whether in a particular instance multiple sentences must run concurrently with each other or consecutively to each other. Taken together the six cases contain an almost dizzying lineup of judges on different sides of the issue. The cases can be found here.