Halftime at the Supreme Court: Tom Goldstein Talks SCOTUS
On Wednesday, Supreme Court
litigator Tom Goldstein--who also publishes the much lauded
SCOTUSblog--joined us for a Bloomberg BNA webinar titled "Halftime at the Supreme Court." The event was meant to provide a refresher
on the cases argued at the court so far this term, as well as a
look forward at the arguments and decisions yet to come.
We also touched briefly on issues
barreling down on the court, including same-sex marriage and gun
rights, as well as some of the larger themes emerging from the
Roberts Court's jurisprudence. Towards the end of the discussion we
talked a little bit about Goldstein's practice, how he got to where
he is today and the role of amici in Supreme Court litigation.
A copy of the program can be
purchased by following the link above. Below are a few highlights
from the webinar addressing just some of the topics we covered.
Also, Tom and his wife Amy Howe--the editor of SCOTUSblog--authored
a companion article I recommend reading, titled "Mid-Term Update on
the Supreme Court." Law Week subscribers can find it on our
homepage or at 82 U.S.L.W. 1208.
- Goldstein noted that the justices, "in more cases this term
than I can ever recall, are being asked to revisit and overrule, or
very strictly limit prior precedents." He called this the "great
mystery of the term"--whether they will turn away from decisions
that are 10, 20 and even 20 years old.
McCutcheon v. FEC: There have been six campaign
finance challenges brought before the Roberts Court and they have
all succeeded, Goldstein said. "I expect this one to be the
Schuette v. Coal. to Defend Affirmative Action: In
this challenge to a Michigan constitutional amendment barring
universities from instituting affirmative action policies, a
majority of the court is "having none of it," Goldstein said. That
same majority would have voted for the amendment if they could
have, so there is "no way they are going to declare it
Daimler AG v. Bauman (Decided 1/14/14): This
personal jurisdiction case, which Goldstein's partner Kevin Russell
argued on behalf of the plaintiffs, "became a much bigger deal than
anybody realized," he said.
Halliburton Co. v. Erica P. John Fund, Inc.: If the
court overrules Basic v. Levinson and the
fraud-on-the-market theory, most securities fraud cases would be in
grave trouble, Goldstein said.
- Same-Sex Marriage: "It is on a freight train, a very fast
moving freight train," back to SCOTUS. When it gets there it will
be a "nail biter."
- It's much harder to build a Supreme Court practice now then
when I started, Goldstein said. Back then maybe only three firms
had dedicated SCOTUS practices and it was seen as "unseemly" to go
after cases. Now, if an appeals court decision looks like it might
have a chance at review, the parties and their attorneys are going
to hear from a lot of Supreme Court lawyers.