The October 2018 term is moving along, with all the “big” cases either awaiting decision or yet to be argued. Over the next few months, I will be highlighting the Supreme Court cases that I think are the most important–and the most interesting.
But what makes a Supreme Court case important? (I’ll talk about “interesting” a bit later.) It’s a Supreme Court case, after all, so aren’t they all important? In one sense, yes: every decision affects the entire country, not just a part of it, and is binding on all lower courts. No other court can make decisions like that. But in a different sense, some are more important than others. No one would regard a technical patent law decision to be as important as, say, Brown v. Board of Education. So, what are the criteria for “important”? Let’s take some cases from the October 2018 term to try to come up with some criteria.
Consider Lamone v. Benisek (to be argued in March) which is the political gerrymandering case from Maryland. (All the links in this and future posts direct you to SCOTUSblog, where you can read their take on a case, other contributors opinions, and every document and Court order in that case.) Political gerrymandering is a big issue. It goes to how people get to choose their representatives in Congress and at the state level. A case like Lamone is important not just for the people in that Maryland district (and the case only applies to one district, not the whole state), but the Court in deciding this case could come up with new approaches, or even new law, which would govern future gerrymandering cases. So in deciding if a case is “important”. you look to not just the result but the reasoning behind the result. In other words, the wider the impact of the legal issue(s) in the case and the more sweeping the majority opinion is, or the more it changes the law, the more “important” the case will be.
But note: it doesn’t always work out that way. Take Gill, the Wisconsin gerrymandering case from the last term. Virtually everyone was convinced that the decision in that case would change election law in major ways: it really looked “important” when it got to the Court. The result? The majority held that the plaintiffs did not have standing to bring the suit. The case ended with a procedural whimper. The moral: cases may look important, but wait till they are over to make a final call.
Well, what about “interesting”? Certainly, the cases that get the most press attention are by definition “interesting”, but how about others on the docket? I have two examples from this term that cover the intersection between “important” and “interesting”.
Iancu v. Brunetti asks the Court to decide “whether Section 2(a) of the Lanham Act’s [the act that governs trademarks] prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.” The trademark in question is the trademark for FUCT clothing. Thus far, the trademark is winning, but we’ll see. Interesting? Well, admitting that “interesting” is in the eye of the beholder, I would say “yes”. Anything that involves the First Amendment is interesting in my book. Important? If the trademark restriction is held to pass Constitutional muster it will be a blow to the FUCT brand (only affecting them) but, depending on how the opinion(s) are written, it could be a blow to free speech, a very big deal. The result may not amount to much, but the reasoning could be very important.
One more. Kisor v. Wilkie to be argued in March asks: “Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co, which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.” I can hear the yawns now. How can this case be either important or interesting? What if I told you that the case has 26 amicus briefs filed, some on each side? And that is another way to determine if a case is important: interested parties on both sides file briefs arguing their positions on what they think will be an important decision. What is at stake, in this case, is what some people call the “administrative state”, allowing agencies to interpret their own often ambiguous regulations as they see fit unless their interpretation is totally arbitrary. Where you stand on this issue can often, I think, depend on who is doing the interpreting, meaning it’s very much results oriented. When judges or agencies you agree with are doing the interpreting, great. Otherwise, not so much. But the Court is looking to uphold those two cases (the agencies get to interpret) or overrule them, bringing the courts much more into play. Either way, important in ways many other cases are not. And interesting to anyone who practices law in the federal context.
Well, stay tuned. Much more important and interesting cases on the way. It only gets more of both from here.