I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–“single entity theory”–in favor of another–“Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, […] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts’s dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
Thanks to Professor Randy Barnett for the VC shout. I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.
Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument. Here are my preliminary thoughts:
- Be Before 50th: The Court reserves at least fifty seats for the general admission line.
- The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in. By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court. Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law. Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007. This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line. I leave it up to the Klingensmiths to tell me otherwise. Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
- The “Mid-Majors”: Get in line by 6am. Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy. Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent. Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter. American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
- The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough. I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long. There wasn’t. I was first. The next batch of people didn’t show up until 3:45am. That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th. This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reed—will likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.
Once again, thank you for coming by F1@1F. Although I will not be reporting from line this week, I will endeavor to keep the content flowing!
These past three days have been among the most rewarding I’ve ever had. F1@1F is still in its infancy and its mission still far from accomplished, but my first week at the Court has been a rousing success. I would like to thank everyone who spoke with me on and off the record in the freezing cold as well as Above the Law for blurbing over thousands of visitors to the web site on Monday.
Today’s crowd for American Needle v. NFL featured a sports law guru; two beaming UVA 2Ls; a headlamped, brief-reading, lawn-chair sitting college senior; and a DC lawyer who works for the firm representing the NFL and clerked for the Seventh Circuit judge whose opinion was at issue this morning. And they were only numbers two through six in line.
But for all the lawyers and law students in the general admission line before dawn this morning, two lay persons will stand head and shoulders above all in my memory. Literally.
Jim and Meade Klingensmith, a father and son from Pittsburgh, PA, and both, by my estimate, standing about 6’6″, waited in line each day this week. And next week, when I will be sleeping in and going to class, they will be back out there in line, making wimps out of the rest of us.
Meade, a sophomore at Oberlin College, is in DC on his winter term, where he is pursuing an independent study. His project?
“I’m going to all five hearings,” said Meade, “and for each one, I will be writing down how I would come down in the case and how I think it will actually come down.” Awesome.
Jim, Meade’s father, just retired and was visibly thrilled to have the time to share this unique experience with his son. His wonder at the Court remained equally palpable since we met on Monday.
“It’s very impressive to see the judicial system at work,” Jim said through a smile. “It really affirms your belief in the law. Everything you’re seeing, you’d expect to see, but it’s good to actually see it.”
And for a college student who could still be on break had he so desired, Meade had a surprisingly positive attitude about his grueling mornings. Whereas waking up at 2:30am was the hardest part for me, Meade claimed that nights are harder because he knows he’ll be sleeping for fewer hours than he’ll be standing in the cold. But, said Meade, “once the morning comes, I just go for it.”
Nearly every person I spoke to had his or her own fear about these mornings: not enough sleep, too cold, going alone, hard to wake up, may get there too late to get in. But once these mornings came, we all went for it. And once we get in line and meet our neighbors, our fears melt away, even if our toes turn to ice.
“It’s been fascinating to hear each person’s story,” reflected Jim.
I couldn’t agree more. Thanks to everyone in line who shared theirs with me.
I hope to see you all again next month for the next batch of newsworthy cases. And if any of you readers want to come on out, well, you know where to find me.
Until then, I will continue to blog regularly, sans Court reports, here at F1@1F. Subscribe by RSS or email, bookmark the page, or check in whenever. I enjoy your comments and feedback, so please keep the hits coming.
Today’s argument in American Needle Inc. v. NFL offered two lessons to the packed courtroom: first, the Solicitor General’s office can rob both parties of a clear victory; second, if Justice Breyer isn’t kept on a tight leash, he will crack jokes all morning.
American Needle was a hotly anticipated case that asked whether the thirty-two teams in the NFL served as a single entity when they granted Reebok an exclusive license to market NFL apparel. American Needle, Inc., a sportswear company that once did business with the NFL, argued that the NFL violated the Sherman Antitrust Act because the league’s thirty-two teams, all independent companies, acted together to limit the market in their agreement with Reebok.
Whereas American Needle petitioned for certiorari seeking a reversal of the Seventh Circuit’s holding that the NFL constituted a single entity for intellectual property and trademark purposes, the NFL, rather than oppose American Needle’s petition, decided to run up the score. It urged the Court to grant certiorari and expand the Seventh Circuit’s holding beyond trademark and intellection property. NFL wanted the Supreme Court to find that the league is a single entity in general, which could potentially shield the NFL from anti-trust scrutiny.
Faced with these two extremes, the Court called for the views of the Solicitor General’s office, which responded in amicus by adopting the Seventh Circuit’s more modest approach. This morning, the Court made clear its ambivalence towards both parties’ arguments, suggesting its ultimate allegiance to the Solicitor General’s approach.
Indeed, at no point did any justice clearly come down for or against either party. Rather, they all seemed interested, though non-committal, in testing the limits of the rule of reason–antitrust law’s case-by-case balancing test to determine what is and isn’t an unreasonable restraint on the market–in NFL teams’ relationship with the league itself.
For instance, during American Needle’s argument, Justice Alito wondered whether certain teams, under NFL’s rules, are allowed to schedule more games for themselves to get more money. Chief Justice Roberts inquired whether the NFL’s rules and regulations are horizontal rules among the teams or issued by a single, central entity. Justice Stevens followed up by exploring–and subsequently repeating throughout the argument–the idea that NFL’s licensing agreement with Reebok could actually have an overall “pro-competitive” effect on the market by giving more public attention, and therefore more sales, to less popular or successful teams.
Glen Nager, American Needle’s lawyer, responded by stating that the anti-competitive aspects of the NFL’s control over each team’s merchandizing outweigh the possible pro-competitive situations. Teams, Nager argued, should get together to forge an agreement in which each team will individually market its own logos.
And this is when Crazy Legs Stevie Breyer grabbed the ball and ran. After fumbling to think of the Patriots’ arch-rival, first settling on the Saints, and then inventing inter-sport play by replacing the Saints with the Red Sox, Breyer threw up his hands and proclaimed, “I know baseball better.” Laughter filled the Courtroom. And for the rafter-swinging Breyer, who scans the audience with satisfaction after almost every one of his questions, laughter proves a potent drug:
Breyer: I don’t know a Yankees fan who will take a Red Sox sweater if you gave it to them!
Nager: A three-year-old could be persuaded.
Breyer: They have very small allowances, those three-year-olds.
Irked by his roadshow adversary‘s getting all the guffaws, Justice Scalia grumbled, “Why am I worried about this other stuff?” Nager dead-panned: “because Counsel has an obligation to engage justices’ questions.” After making the case for the relevance of his comical questions, Crazy Legs Breyer took himself out of the game, giving Nager permission to “blow off” his questions.
By the time Gregg Levy, the NFL’s lawyer, took to the lectern, the courtroom had returned to its silent decorum. Levy argued that, among other reasons, the NFL deserved single entity status because its primary purpose is to centrally and cohesively promote the game of football as authorized by all thirty-two teams. Justice Scalia did not buy that line and pithily stated that the NFL’s purpose–particularly through its licensing deal with Reebok–“is to make money.” Sotomayor piled on: “you are seeking through this hearing what you haven’t got through Congress: an absolute bar to anti-trust claims.” Yet the old ambivalence soon overtook the momentary shot of antagonism. The justices went back to their exploration of the rule of reason and Scalia admitted that the individual teams constituting the NFL would be “worthless if the NFL disappears.”
American Needle came into the Court as potentially transformative of sports law, if not anti-trust law in general, but by the time Chief Justice Roberts banged his gavel and submitted the case, it was clear that the case, to switch to Justice Breyer’s sport of choice, would be sent back down to the minors for further development.
UPDATE: The official transcript is available here. Excoriate my own transcription prowess in the comments.
Back home now. Feeling is coming back to my toes.
- Lawyers and law students dominated this morning’s line for American Needle Inc. v. NFL.
- The line started building in the 4am hour, earlier than the lines on Monday and Tuesday.
- I was surprised that there were not more lay linegoers today, given the publicity American Needle has received – especially from Drew Brees’s op/ed in the Washington Post last Sunday.
- To my great benefit, an expert sports law practitioner sat second in line. As the clock struck 4am, he laid out three possible routes the Court may take in deciding American Needle, which I will outline in my afternoon write-up.
Be sure to come back later today for my argument recap and tonight for my Vox Populi column.
Time to suit up and get back to the Court!
Drew Brees, quarterback for the New Orleans Saints, penned an op/ed for this coming Sunday’s Washington Post regarding next Wednesday’s case, American Needle Inc. v. NFL. He argues that if the Supreme Court affirms the Seventh Circuit’s decision that the 32 NFL teams operate as a single business entity, therefore cannot violate antitrust laws, the ramifications for pro sports would be ruinous:
[I]f the Supreme Court agrees with the NFL’s argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.
What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don’t reward them when they’re promoted and set higher ticket prices (including preventing teams from competing through ticket discounts). These and other concerns prompted the NFL Players Association — along with the players associations of Major League Baseball, the National Basketball Association and the National Hockey League — to file an amicus brief with the Supreme Court last fall, arguing against the notion of the NFL as a single entity.
F1@1F will be out on the pavement early Wednesday morning for American Needle. Be sure to follow the F1@1F Twitter feed, viewable under “On the Ground” in the sidebar, for updates from the line. If some pro football player who couldn’t score a reserved seat inside the Court tries to muscle his way past me in line, you will hear here first. And if I survive the morning frost and any mad footballers, then check back here later that day for a full write-up of what went on inside and outside the Court.