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Business on the high court’s docket

Marketplace Staff Oct 2, 2006


KAI RYSSDAL: Today’s the first Monday in October. That makes it the traditional opening of the Supreme Court’s new term. There were no cases heard today — the Justices were marking Yom Kippur — but when oral arguments start tomorrow it’s going to be back to business as usual. Only this year there’s going to be a whole lot more actual business on the docket as Nancy Marshall Genzer reports from Washington.

NANCY MARSHALL GENZER: The Supreme Court’s opening day comes just about a week after the season premiere of Law & Order. There was, of course, a murder in the opening show. Police were perfectly free to burst into the suspect’s apartment without a warrant.

[ Law & Order: Come out with your hands up, Whalen! ]

One of the cases before the Supreme Court follows a similar script although it probably won’t be wrapped up in a prime-time hour. Wallace versus Kato deals with real-life cops accused of “unreasonable search and seizure.”

The court isn’t only focused on crime, though. Business cases are crowding the docket. That’s partly because the chief justice has business cred. John Roberts was a corporate lawyer in Washington for 13 years.

Court watcher and attorney Mark Levy says the business community feels like it’s finally got one of its peeps on the court.

MARK LEVY:“It’s the first time in 20 years we’ve had a justice — any justice — with a significant business law background. And there’ve been long periods of time as recent history on the court now shows, where there hasn’t been anyone who has an understanding, a first-hand understanding of the problems of the business community.”

Those problems may not be as riveting as the predicament of a prime-time thug . . .

[ Law & Order: You have the right to remain silent. Anything you say can be used against you in a court of law. ]

. . . but the business community is all abuzz about a couple of anti-trust and patent cases along with questions on environmental regulations for industry.

The court is also scheduled to decide whether public employee unions have to get special permission before earmarking workers’ dues for political causes.

And then there’s Philip Morris versus Williams.

[ Law & Order: Is that really news your honor? ]

Yes, it really is. This case is scheduled to be heard on Halloween and yes, it does have corporate types freaked out.

That’s because it deals with punitive damages. You know, those multi-million dollar judgments consumers get when they accuse businesses of doing something stupid, like making a product that causes lung cancer.

The question in Philip Morris versus Williams is should states have the right to allow punitive damages that are bigger than a Mega Millions lottery jackpot?

People for the American Way Attorney Elliot Mincberg says conservative justices are split on this one.

ELLIOT MINCBERG:“The punitive damages issue has produced some very strange bedfellows on the Supreme Court, with very conservative justices like Antonin Scalia being in with one of the more moderate justices, Ruth Bader Ginsberg. The real question is which side of the bed will Roberts and Alito jump into?”

ROBIN CONRAD: “But we’re hoping they’ll rule the right way.”

That’s Robin Conrad, an attorney with the U.S. Chamber of Commerce. Her organization wants the justices to continue a pattern of rulings limiting punitive damages.

But Conrad says even if the justices don’t “rule the right way” in the Philip Morris case, at least companies can look to one federal law on punitive damages rather than dealing with different states’ interpretations.

CONRAD:“Uncertainty is hard anywhere in the law where you have conflicting appellate court decisions and you really don’t know what the state of the law is. And it is the role of the U.S. Supreme Court to provide clarity and predictability.”

Conrad is hoping for more than clarity, though. She wants to win. She says last year, the chamber got favorable rulings in 10 of the 15 Supreme Court business cases on its radar screen. She’s hoping for a better record this year.

Some court observers, like Duke University law professor Erwin Chemerinsky, think the Chamber will be quite happy with the court.

ERWIN CHEMERINSKY:“I think the business community likely has the most pro-business Supreme Court that it’s had since any time in the mid-1930s.”

Of course, we won’t know that until next year when the court starts releasing its opinions.

[ Law & Order: The press will be all over this.” ]

It’s almost as nerve-wracking as waiting for the next episode of your favorite prime-time courtroom drama.

In Washington, I’m Nancy Marshall Genzer for Marketplace.

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