Order List

January 12, 2009 Supreme Court Update

Greetings, Court Fans!
While it was away on extended recess, the Court wasn't entirely idle, noting its probable jurisdiction over one appeal and granting cert in three new cases – including one that hits close to home here in New Haven!
The Court noted probable jurisdiction over the appeal in Northwest Austin Municipal Utility District Number One v. Mukasey (08-322), a Voting Rights Act ("VRA") case that poses two questions: (1) Whether § 4(a) of the VRA, which permits "political subdivisions" of a State covered by § 5's requirement that certain jurisdictions obtain federal preclearance before making changes affecting voting, to "bail out" from § 5 coverage if they can establish a ten-year history of compliance with the VRA, must be available to any political subunit of a covered State (including big old Municipal Utility District Number One). (2) Whether, under the Court's jurisprudence requiring that remedial legislation be congruent and proportional to substantive constitutional guarantees, the 2006 extension of the § 5 preclearance requirement can be applied as a valid exercise of Congress's remedial powers under the Reconstruction Amendments when the enactment was founded on data 35 or more years old, or even when considered under a purportedly less stringent rational-basis standard.
Now for the cert grants. First up for us Nutmeggers are the twin cases of Ricci v. DeStefano (07-1428) and (08-428), which ask whether Title VII and the Equal Protection Clause allow a government employer (you guessed it, the City of New Haven!) to reject the results of a civil-service selection process because it does not like the racial distribution of the results. Specifically: (1) When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected? (2) Does an employer violate 42 U.S.C. § 2000e-2(/), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race," when it rejects the results of such tests because of the race of the successful candidates?
Next up is another set of consolidated cases, Republic of Iraq v. Beatty (07-1090) and Republic of Iraq v. Simon (08-539), which ask whether the Republic of Iraq possesses sovereign immunity from the jurisdiction of the courts of the United States in cases involving alleged misdeeds of the Saddam Hussein regime and predicated on the exception to immunity in former 28 U.S.C. § 1605(a)(7).
And finally, we have Horne v. Flores (08-289) and Speaker of the Arizona House of Representatives v. Horne (08-294) (it must have been buy one, get one free day at the court), which present the following questions: (1) By interpreting the phrase "appropriate action" under Section 1703(f) of the Equal Education Opportunity Act ("EEOA") as a requirement that the State of Arizona provide for a minimum amount of funding specifically allocated for English Language Learner programs statewide, did the Ninth Circuit violate the doctrine prohibiting federal courts from usurping the discretionary power of state governments to determine how to appropriately manage and fund their public education systems? (2) Should the phrase "appropriate action" as used in Section 1703(f) of the EEOA be interpreted consistently with the No Child Left Behind Act of 2001 ("NCLB"), where both Acts have the same purpose with respect to English Language Learners and the NCLB provides specific standards for the implementation of adequate English Language Learner programs, but the EEOA does not?
This morning, the Court also asked the SG to weigh in on two cases:
In Cable News Network, Inc. v. CSC Holdings, Inc. (08-448), the Court is asked to determine whether Cablevision's remote storage digital video recording system (RS-DVR) (essentially a cross between TiVO, where a digital video recorder stores programs on a hard drive at the customer's house, and video-on-demand, where a cable company streams programs to a customer when requested) infringes plaintiffs' copyrights to movies and television by copying, storing, and replaying content upon a customer's request without additional licenses.
Fin-Ag v. Pipestone Livestock Auction Market (08-576) would resolve the conflict between the Supreme Courts of Minnesota and South Dakota over whether a purchaser of farm products is protected by the Food Security Act, 7 U.S.C. § 1631(a)-(b), from the security interests of a lender when the seller/debtor sells the products under a fictitious name not listed in the UCC/EFS filing of the state.
That's all for today. We'll likely be back with opinions later this week!
Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400