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A Look Ahead at the United States Supreme Court’s Upcoming 2008 Term
October 02, 2008 by Bruce J. Douglas and Ashlee Bekish* The new term of the United States Supreme Court’s upcoming term begins on the first Monday in October (October 6th). The Court has already agreed to hear just over 40 cases and is expected to add more cases once the term commences. This alert provides a brief look at some of the interesting cases the Supreme Court has agreed to hear thus far. In a future alert, we will provide a look at other cases as they are added to the Court’s docket. Administrative Law FCC v. Fox Television Stations (Docket No. 07-582) The Supreme Court will decide whether the United States Court of Appeals for the Second Circuit was incorrect to strike down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of obscene, indecent, or profane language when the expletives are not repeated. Oral argument is scheduled for November 4, 2008. Antitrust Pacific Bell Telephone Co. v. linkLine Communications (Docket No. 07-512) The Supreme Court will determine whether a plaintiff states a “price squeeze” claim under Section 2 of the Sherman Antitrust Act when the defendant has no duty to deal. The Supreme Court will review a decision of the United States Court of Appeals for the Ninth Circuit. Oral argument is set for December 8, 2008. Arbitration Vaden v. Discover Bank (Docket No. 07-773) The Supreme Court will consider whether, under the Federal Arbitration Act, a federal court has jurisdiction over a petition to compel arbitration when the federal question is raised, not in the petition itself, but by the underlying claims subject to arbitration. If so, the Court will then address whether a counterclaim can provide such jurisdiction when the counterclaim raises state-law claims that are preempted by federal law. The Court will review a decision of the United States Court of Appeals for the Fourth Circuit. Oral argument is set for October 6, 2008. 14 Penn Plaza LLC v. Pyett (Docket No. 07-581) The Supreme Court will decide whether an arbitration clause in a collective bargaining agreement, which waives union members' right to judicial resolution of federal antidiscrimination claims, is enforceable. The Supreme Court will review a decision of the United States Court of Appeals for the Second Circuit. Oral argument is set for December 1, 2008. Constitutional Claims Pearson v. Callahan (Docket No. 07-751) The Court will determine whether the “consent once removed” exception to the Fourth Amendment warrant requirement recognized by some lower courts authorizes police officers to enter a home without a warrant immediately after an undercover informant buys drugs inside, or does the warrantless entry in such circumstances violate the Fourth Amendment. Additionally, the Court directed the parties to answer whether the Court’s decision in Saucier v. Katz, a decision which established a two-step procedure for analyzing immunity claims by police and other public officials, should be overruled. The Supreme Court will review a decision of the United States Court of Appeals for the Tenth Circuit. Oral argument is set for October 14, 2008. Ysursa v. Pocatello Education Association (Docket No. 07-869) The Supreme Court will consider whether, under the First Amendment, a state legislature may prohibit state political subdivisions from making payroll deductions for political activities under a statute that is concededly valid as applied to state government employers. The Supreme Court will review a decision of the United States Court of Appeals for the Ninth Circuit. Oral argument is scheduled for November 3, 2008. Discrimination Crawford v. Metropolitan Government of Nashville (Docket No. 06-1595) The Supreme Court will address whether Title VII’s anti-retaliation provision protects employees from being terminated for cooperating with an employer’s internal investigation of sexual harassment. The Supreme Court will review a decision of the United States Court of Appeals for the Sixth Circuit. Oral argument is set for October 8, 2008. Fitzgerald v. Barnstable School Committee (Docket No. 07-1125) The Supreme Court will address whether Title IX’s implied right of action is the sole legal remedy for cases of sex discrimination by federally funded educational institutions. The case will seek to resolve a split in the federal appeals courts over whether an older, broader federal civil rights law, known as Section 1983, provides an additional basis for lawsuits alleging sex discrimination in federally funded educational settings. The Supreme Court will review a decision of the United States Court of Appeals for the First Circuit. Oral argument is set for December 2, 2008. Employment/Labor-Related AT&T Corp. v. Hulteen (Docket No. 07-543) The Supreme Court will consider whether employers violate Title VII by failing to fully restore service credit for pregnancy leaves taken before the passage of the Pregnancy Discrimination Act of 1978. The Court will also address whether the Ninth Circuit’s finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the Pregnancy Discrimination Act. Oral argument is set for December 10, 2008. Kennedy v. Plan Administrator for DuPont Savings (Docket No. 07-636) The Supreme Court will decide whether ERISA’s Qualified Domestic Relations Order provision is the only valid way a divorcing spouse can waive her right to receive her ex-husband’s pension benefits under ERISA. The Court will review a decision of the United States Court of Appeals for the Fifth Circuit. Oral argument is set for October 7, 2008. Locke v. Karass (Docket No. 07-610) The Supreme Court will address whether a state can, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of agency fees for purposes of financing a monopoly bargaining agent’s affiliates’ litigation outside of a nonunion employee’s bargaining unit. The Supreme Court will review a decision of the United States Court of Appeals for the First Circuit. Oral argument is scheduled for October 6, 2008. Environmental Entergy Corp. v. EPA (Docket Nos. 07-588, 07-589, and 07-597) In this consolidated action, the Supreme Court will consider whether the Clean Water Act allows the Environmental Protection Agency to employ a cost-benefit analysis in determining the “best technology available for minimizing adverse environmental impact” at cooling water intake structures. The Court will review decisions of the United States Court of Appeals for the Second Circuit. Oral argument is scheduled for December 2, 2008. Summers v. Earth Island Institute (Docket No. 07-463) The Supreme Court will decide whether judicial review of Forest Service regulations was proper, whether the environmental groups challenging the regulations had established standing, whether the challenge was ripe for judicial review after the controversy over the regulations’ application to the specific project was settled, and whether issuing a nationwide injunction was a proper remedy. This case was appealed from the United States Court of Appeals for the Ninth Circuit. Oral argument is set for October 8, 2008. Preemption Altria Group, Inc. v. Good (Docket No. 07-562) The Supreme Court will consider whether federal law preempts state-law challenges regarding the advertising of cigarettes as “light” or “containing lower tar and nicotine.” The Supreme Court will review a decision of the United States Court of Appeals for the First Circuit. Oral argument is scheduled for October 6, 2008. Wyeth v. Levine (Docket No. 06-1249) The Court will decide whether the prescription drug labeling judgments imposed on drug manufacturers by the Food and Drug Administration ("FDA") pursuant to the FDA's safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use. The Supreme Court will review a decision of the Supreme Court of Vermont. Oral argument is scheduled for November 3, 2008. Voting Rights Act Bartlett v. Strickland (Docket No. 07-689) This case presents the issue of whether a racial minority group that constitutes less than 50% of a proposed district’s population can state a vote dilution claim under Section 2 of the Voting Rights Act. The Supreme Court will review a decision of the Supreme Court of North Carolina. Oral argument is scheduled for October 14, 2008. * Ms. Bekish is a law clerk at Larkin Hoffman Law Firm.
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