Supreme Court wraps up another term

Another U.S. Supreme Court term is in the record books.

While some decisions — such as the Second Amendment ruling that struck down Chicago’s handgun ban — dominated headlines, other cases decided during the term will have a much broader impact on civil and criminal litigators.

Arbitration the new employment law

The Supreme Court docket is usually heavy on cases involving employment discrimination claims. But this year, if the court heard an employment case it was a fair bet it involved arbitration.

The biggest arbitration decision was Rent-A-Center, West v. Jackson, which held that the enforceability of an employment arbitration agreement is for an arbitrator to decide.

The ruling was decried by Anthony Tarricone, president of the trial lawyers’ group American Association for Justice, who said it gave “corporations yet another free pass to submit employees and consumers to abusive forced arbitration proceedings.”

But Robin Conrad, executive vice president of the National Chamber Litigation Center, the litigation arm of the U.S. Chamber of Commerce, said the increase in Supreme Court arbitration cases — four in the 2009 term, as opposed to three in the 2008 term, two in the 2007 term and just one case in 2006 — demonstrates the Court’s ongoing interest in arbitration issues.

“The Chamber strongly supports the use of arbitration as a fair and prompt way to solve disputes,” Conrad said.

In another arbitration case this term, Granite Rock Co. v. International Brotherhood of Teamsters, the Court ruled that a dispute between the parties over the formation of a new collective bargaining agreement with an arbitration clause was for the federal courts rather than an arbitrator to decide.

In Stolt-Nielsen v. AnimalFeeds International Corp., the Court held that class actions in arbitration are inconsistent with the Federal Arbitration Act unless the parties expressly agree to consent to a class action in the arbitration agreement.

And in a case involving arbitration under the Railroad Labor Act, the Court held that the National Railroad Adjustment Board should not have dismissed arbitration of a dispute on jurisdictional grounds merely because a union failed to show proof of conferencing that both sides knew occurred. That ruling came in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers and Trainmen.

‘Miranda,’ sentencing and honest services

On the criminal docket, the justices’ ruling in Berghuis v. Thompkins that the right to remain silent must be invoked verbally caused some to fear that the Court was slowly eroding rights established in Miranda v. Arizona.

“So it’s kind of like chip, chip, chip,” said Paul Butler, associate dean of George Washington University Law School, of the Court’s treatment of Miranda during a recent panel discussion hosted the American Constitution Society for Law and Policy: “It’s alive, but it’s not well.”

But in a victory for the defense bar, the Court held in Roper v. Simmons that sentencing a juvenile to life without parole in a non-murder case violates the Constitution’s Eighth Amendment ban on cruel and unusual punishment.

The ruling represented a recognition that the “U.S. is the most punitive of any western nation,” Butler said. “We have the highest rate of incarceration and this case continues the trend in which the Court is skeptical of the get-tough-on-criminal-justice movement.”

While the Court’s ruling in Skilling v. U.S. that claims for criminal honest-services fraud can only be brought in cases involving bribery and kickbacks seemed to strip prosecutors of a favorite tool for fighting public corruption and private sector fraud, some experts note that it could have been worse.

“This is not nearly as bad of an outcome for the federal government as one might have expected based on the oral arguments,” said Virginia A. Seitz, a partner in the Washington office of Sidley Austin. “The Court worked extremely hard to save the constitutional core of the honest-services fraud statute.”

Seitz said it was notable that the Court seemed to go out of its way to save the constitutionality of the statute by limiting its application — even though the words “bribery” and “kickbacks” don’t appear in the language of the law itself.

“That is a truly remarkable technique, and a technique that the Court might use in the future” to save overly broad laws without striking them down entirely, Seitz said.

The big privacy case that wasn’t

If there was a big disappointment for Supreme Court watchers this year, it was City of Ontario v. Quon.
In that ruling, the Court declined to decide whether employees have a privacy interest in the messages they send on employer-issued mobile devices.

“A lot of us thought the Court would use this case as an opportunity outline a theory of Fourth Amendment protections in cyberspace — how much privacy we should expect in out texts and our e-mails and our Internet use” Butler said. “The Court expressly declined to do this. … It left that extremely important question for another day. ”

The case got far more attention for the questions the justices asked during oral arguments, which suggested a lack of ease with technologies like cell phones, pagers and e-mails.

“The justices are surprisingly [not attuned] to technological advances,” Butler said. “Even the relatively young chief justice — along with Justices [Anthony] Kennedy and [Antonin] Scalia — … didn’t understand how text messages work on a very fundamental level.”