What's Left on the Supreme Court's Docket and Why it Matters

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The Supreme Court's term ends in mere weeks and there are still a few hot potatoes on their plates, from privacy issues to freedom of speech to limiting the size of classes in a class action lawsuit. These are cases that have a potential for big impact, depending on how the judges come down.

We put our heads together with legal analyst and It's a Free Country blogger Jami Floyd to break down a few of these remaining cases and explain what impact they may have.

Microsoft v. i4i Limited Partnership, 10-290

This case, now under review by the Supreme Court, is Microsoft’s appeal of a $290 million jury verdict for patent infringement. The original case was in the courts for three years brought by a small Canadian software firm, i4i Inc. The firm argued that Microsoft had infringed on their patent relating to text manipulation software in certain versions of Microsoft Word Processing application. The arguments in this case surround patent standards, and this is not the first time Microsoft has been sued for patent infringement. Another time was back in 2003 by a University of California researcher who was awarded $521 million by a federal jury.

Legal analyst, Jami Floyd says the big question in this case is whether the Supreme Court will relax the burden of proof for patent invalidity. Even though it sounds pretty dry, Floyd says it’s an incredibly important case for anyone who has a good idea and wants to protect it, especially over time.

Currently, the Patent and Trademark Office (PTO) decides the validity of patents by evaluating applications and conducting reexaminations. The federal courts of appeal get involved only when there is a genuine question of patent law. For nearly three decades, the federal circuit has deferred to the PTO by refusing to invalidate patents unless there is “clear and convincing” evidence of patent infringement.

As it stands, an accused patent infringer must prove a patent is invalid by clear-and-convincing evidence.  That requires an abiding conviction by the fact finder that invalidity is highly probable. This is a much higher burden than proof by a preponderance of the evidence. 

Enter, Microsoft, which now argues that the heightened standard should be replaced with a more relaxed "preponderance" standard.  Microsoft is arguing for a standard that would merely requires a belief that invalidity is more likely true than not. This question of proof has turned Microsoft into one of the most important patent cases in years. If the Supreme Court accepts the preponderance standard, it will be easier for alleged infringers to prove invalidity of a patent holder’s patent and will dramatically alter patent litigation.

Chief Justice John Roberts Jr. has recused himself from the case because he owns stock in Microsoft, which leaves the possibility of a tie among the remaining eight judges. If there is a tie, the patent law will remain unchanged.  

Camreta v. Greene, 09-1478

This case raises Fourth Amendment questions — whether a law enforcement officer must first obtain a warrant before they proceed with the questioning of a minor, or if they can go ahead without one if there's proof that the public interest outweighs the impact of the questioning, especially in cases of alleged sexual abuse.

In this case, Bob Camreta, a social worker employed by the state of Oregon, heard from a third party that two minor girls were being sexually abused by their father. Accompanied by local Sheriff, Camreta went to the school and interviewed one of the girls about the allegation without her parents’ permission. He later secured a protective custody order authorizing the removal of the girls from their home, along with further interviews and medical exams. The girls’ mother, Sarah Greene, filed lawsuits on behalf of her and her children against Camreta and the Sheriff claiming Fourth Amendment violations. The cases were eventually consolidated and have made their way to the Supreme Court.

Jami Floyd says this case is critical as the high court continues to review the warrant requirement that the Fourth Amendment guarantees, something many Americans take for granted.

As you can imagine, the police argue that the warrant requirement should give way to a balancing act where they suspect there may be abuse in the home. But the mother of two girls, interrogated for hours by well-meaning officials, argues that seizing her nine year old daughter, interrogating her about sexual matters in a private office at her school for two hours without a warrant, probable cause, or parental consent, was a violation of the fourth amendment.

It seems obvious that both the fourth amendment right to privacy and children's rights should dictate strong application of the warrant requirement where a child is interrogated by law enforcement. However, given the direction of the court on questions of fourth amendment privacy, in recent years, I expect this decision to come down in favor of the authorities, not the mother and child.

This is the first major case concerning child protective services to reach the high court in over two decades.

American Electric Power Co., Inc., et al v. Connecticut, et al, 10-174

This is the Supreme Court’s biggest-ever case on the issue of global warming. It’s a federal common law claim filed by six states, including New York and Connecticut, along with several conservation groups, against five national operators of electricity generating plants that use coal power. This case has raised questions about the role of the courts in addressing climate change. The big question in this case is whether federal law allows states and private parties to sue utilities for contributing to global warming.

Jami Floyd says the overall goal is a good one — to reduce carbon emissions. But the question about the court's role in this issue is an even bigger task at hand.

By asking federal courts to fashion novel remedies to a policy challenge as controversial as climate change, the plaintiffs push the judiciary beyond what the Supreme Court has called “the proper – and properly limited – role of the courts in a democratic society.”

The parties are essentially asking for judicial carbon caps, and are seeking precisely the policy outcome that Congress and the EPA have been unwilling to adopt. Understandably frustrated, state attorneys general have answered calls from activists, professors, citizen and scientists because “[d]esperate times call for desperate measures.”

The more courts become involved in policy making, however, the more we allow the Legislature to avoid difficult questions, and the more our citizens get accustomed to turning to the courts for solutions rather than to their elected officials.

Justice Sonia Sotomayor has recused herself and will not participate in this case.

Wal-Mart Stores v. Dukes, et al, 10-277

This case is the biggest class action lawsuit ever filed and the issue in this case is just that — whether this class of plaintiffs is too big. The case was originally filed by six female workers against Wal-Mart for pay and promotion discrimination based on their gender, but the case grew exponentially. Now the class is over one million and includes workers across the country and the question before the Supreme Court is about the size of this class and whether the original case be able to proceed, at all.

Jami Floyd has been following this case since its inception, but now she's not sure it will come to fruition for these plaintiffs and their enormous class.

At oral argument, the case appeared to be on the verge of unraveling; the conservative justices questioned the rationale for holding the retail giant accountable for store-level decisions. In particular, Justice Anthony Kennedy, the swing voter, in close cases, suggested the women's claims seemed contradictory. On the one hand, the plaintiffs say that Wal-Mart was infused with sex bias, and on the other hand that the company provided no standards to store managers who made the personnel decisions.

As much as I would like to see the women compensated for any discrimination they have suffered, as someone who covered Wal-Mart for the better part of a decade, I understand the size and scope of the multi-billion dollar company. I am not confident these many thousands of women can convince the Court they are similarly situated enough to proceed as one.

Brown v. Entertainment Merchants Association, 08-1448

This case is known as the “violent video games case” and is centered on an attempt to ban violent video games for children. This is a first amendment case and the entertainment company says any limit on their sales would be a violation of their freedom of speech and is no different than violent movies or comic books.

The Supreme Court has often been reluctant to make any exceptions to the First Amendment right, but some justices have appeared to agree with California that the consumption of violent video games by young people could be damaging.

Floyd says first amendment cases are usually pretty clear, but when kids are thrown into the mix, things get more complicated.

This is tough stuff. If we start to chip away at the first amendment, we must be concerned about which of our free speech freedoms will be limited next. At the same time, we prohibit children from smoking, we regulate driver’s licenses, we prohibit alcohol, we prohibit lots of things from children. Perhaps it is more of a public safety matter to regulate the sale of excessively violent video games to children. The Roberts court, with Kennedy in the deciding seat, is likely to think it’s logical that kids should not be able to purchase these games on their own.