U.S. Supreme Court

Two Supreme Court watchers got into a bit of a tit-for-tat this week on the eighth anniversary since Justice Clarence Thomas last asked a question from the bench.

Jeffrey Toobin opined that Thomas' famous habit of not asking questions during oral arguments is "disgraceful" because "they are, in fact, the public's only windows onto the Justices' thought processes, and they offer the litigants and their lawyers their only chance to look thse arbiters in the eye and make their case."

Then Adam Liptak wrote that "the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision."

Most interesting to me in all of this is Liptak's analysis of how Thomas might treat stare decisis in a case that could shape the future of securities class actions. At issue is the viability of the "fraud on the market" theory and the presumption that a company's stock price reflects all important publicly available information. If the case gets overturned, then securities class actions will likely be extinct.

The defendants argue the precedent in the case deserves less adherence because it involves "'largely a procedural and evidentiary construct.'" Liptak closes his piece with the comment that "we will have to wait until the court decides the case, probably in June, to see how just how weak [Thomas'] 'affinity for stare decisis' is."

Re/code reports that the four biggest television networks told the U.S. Supreme Court in their brief filed Monday that "Aereo, which provides broadcast TV shows to subscribers over the Internet without paying licensing fees to stations, is violating federal copyright law designed to protect content creators and distributors. Aereo has denied violating broadcasters’ copyrights through its unique  online delivery system, although the company joined broadcasters in asking the Supreme Court to review the case."

According to their brief, the networks said a win for Aereo would "'launch a race by cable and sattelite companies to develop competing methods to capture copyrighted content and re-sell it without paying for the right do so. That would give broadcasters little choice but to reconsider the quality and quantity of programs they broadcast for free over the air.'"

SCOTUSBlog's Lyle Denniston reports that a majority of the U.S. Supreme Court appears to favor the Environmental Protection Agency's position in favor of climate-change regulation in the six cases the court heard today: "As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt.   Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter."

The EPA's opponents argue that the agency has stretched the Clean Air Act out of shape, Denniston reports.

One of the issues taken up by the court is whether the EPA "'permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.'” 

The New York Times' Adam Liptak writes that the U.S. Supreme Court will hear oral arguments Monday on the ability for President Obama's administration to take executive-only action on climate change. The justices will decide if the executive branch went too far in regulating greenhouse gas emissions from stationary sources like power plants. The issue taken up by the court, Liptak reports, is whether the Environmental Protection Agency "'permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouses gases.'” 

Next week, the U.S. Supreme Court will hear arguments in a securities fraud class action and weigh the fraud-on-the market theory, The Southeast Texas Record reports. The case could affect the future of class actions, including whether the fraud-on-the-market theory can be used in class actions, the paper also notes.

"The theory assumes that all public information provided by a company is incorporated into its stock price," The Record reports. Halliburton was accused of inflating its stock price by misrepresenting "its asbestos liabilities, overstating its revenues and building up hype about the company’s merger with Dresser Industries," The Record further reports.

The Associated Press reports that a Utah judge has blocked Aereo from operating in some Western states until the U.S. Supreme Court takes up on April 22 a case over whether the Internet streaming service violates broadcasters' copyrights. The district judge said that Aereo's retransmission of signals is indistinguishable from what cable companies do, and letting Aereo stay in business would "damage broadcasters’ ability to negotiate with legitimate licensees, siphon viewers away from their websites and subject them to potential piracy," the AP also reports.

Argentina has filed a "long-shot appeal" to the U.S. Supreme Court, asking for relief from having to pay investors who don't want to accept bond swaps in exchange for defaulted debt, the Associated Press reports. Full payment would cut Argentina's results in half, Argentina's counsel argues. The dispute involves the debts Argentina hasn't paid since its 2001 economic crisis, AP also reports.

The Washington Post's Robert Barnes reports on a challenge to the law that keeps protesters away from the U.S. Supreme Court except for the sidewalks surrounding the highest court in the country. The D.C. U.S. Attorney argued that there is a legitimate governmental interest to keep demonstrations away from courthouses because courts don't make decisions by reference to public opinion, but one judge ruled that it was inconsistent with the First Amendment for the government to prohibit virtually all expression in front of the court.

Concern over the lack of civics education and civic engagement is a common issue for bar associations, but U.S. Supreme Court Justice Antonin Scalia has a twist on that concern, the Chicago Tribune reports: "Civics education in the United States faces a crisis because of a drift away from the ideals held by the nation's founders, U.S. Supreme Court Justice Antonin Scalia said Friday in Chicago. Scalia said that among his concerns is the removal of religious ideals from public education. 'Let me make clear that I am not saying that every good American must believe in God,' Scalia said in a speech at the Union League Club. 'What I am saying, however, is that it is contrary to our founding principles to insist that government be hostile to religion. Or even to insist, as my court, alas, has done, that government cannot favor religion over nonreligion.'"

The Delaware Coalition for Open Government is arguing to the U.S. Supreme Court that it should not take up a case in which the Delaware Court of Chancery is trying to reinstate its secret, confidential arbitration program, my former colleague, Delaware Business Court Insider's Jeff Mordock, reports. "'Judicial arbitrators are deciding the substantive legal rights of the parties,'" the coalition's attorney argued, DBCI reports. "'That is a core basis for the First Amendment right of public access.'" The chances of the petiton being granted are 3.8 percent, DBCI concludes.