8-Justice Court's Impact Is Felt by Supreme Court Litigants
The loss of Justice Scalia, and the lack of a replacement, has had obvious impacts on the Supreme Court itself. It's thrown some outcomes into question and even inspired Justice Thomas to speak up.
But now the realigned, eight-justice Court is starting to have a clear effect on litigants. At least one major company is settling its case, rather than take it before a Scalia-free Court, while other petitioners are having their cases delayed until next term.
Dow Gives up Defense
There's no better illustration of this than Dow Chemical. Last Friday, Dow announced that it was settling a long-running legal dispute, rather than pursue its appeal to the Supreme Court. The cost? $835 million.
The company alluded directly to Scalia's passing, citing "growing political uncertainties due to recent events within the Supreme Court" as the reason for its decision to settle.
The case, a consumer protection class action filed in 2005, involved claims that Dow and other chemical companies had conspired to fix prices of urethane chemicals, Reuters reports. Dow was the only company not to settle and, in 2011 was found liable for treble damages of over $1 billion.
Dow's cert petition made it clear that they were seeking Scalia's vote. Justice Scalia's jurisprudence had been generally unfriendly to class actions and Dow relied heavily on two of those Scalia-authored opinions: Comcast v. Behrend, rejecting an economic model of damages, and Wal-Mart v. Dukes, tossing out a massive gender discrimination class action. Both cases emphasized the need for courts to conduct "rigorous analysis" to ensure Rule 23 was met before approaching the merits of case.
With no 'Nino on the bench, Dow determined that its odds were now much worse and that it just wasn't worth it to carry on.
Five Cases Delayed
Then there are those who still want their day before the Supreme Court but will have to wait. Today, the Court announced that it was delaying five cases, which will now be heard in the October 2016 Term. (Delays aren't particularly unusual and the Court didn't explain the cause of the delay, but we can't imagine a bit of short staffing didn't play some sort of role.)
The five cases delayed are:
- Trinity Lutheran Church v. Pauley, which examines the constitutionality of excluding churches from neutral public benefits -- here, a grant to resurface a church playground.
- Salman v. United States, an important insider-trading case where both the insider and the "tippee" were close family members.
- Manual v. Joliet, Illinois, which examines whether a claim of malicious prosecution can be filed after that prosecution has already begun.
- Microsoft v. Baker, a case over federal appellate jurisdiction over class certification denials after named plaintiffs have withdrawn their claims.
- Murr v. Wisconsin, which delves into whether two separate, but adjacent lots, sharing the same owner, should be treated as two or one properties for takings analysis.
- Scalia's Supreme Court Vacancy Could Leave Companies at a Loss (The Wall Street Journal)
- The Supreme Court Comes to the Defense of the Dangling Modifier (FindLaw's U.S. Supreme Court Blog)
- The Supreme Court Without Scalia: Oral Args and Only 8 Justices (FindLaw's U.S. Supreme Court Blog)
- President Obama, SCOTUS Blogger, Discusses Potential Court Pick (FindLaw's U.S. Supreme Court Blog)
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