Q&A: A "practical term" for the High Court

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October 2015 - Q&A with Robert Peck

Interview by Alyssa E. Lambert

 

photo of Robert Peck

Robert Peck, president of the Center for Constitutional Litigation in Washington, D.C., has been arguing cases before the U.S. Supreme Court for years. Trial spoke with him about some notable decisions from the October 2014 Term and what they mean for plaintiff attorneys.

More about the Center for Constitutional Litigation: Originally AAJ’s Legal Affairs Department, CCL is now a private law firm. It is retained by AAJ to represent AAJ and state TLAs in cases that present significant constitutional issues, including cap challenges. CCL is known for its work on constitutional challenges to laws that impede access to the courts, preemption issues, and defending significant verdicts.


Q: What was the most surprising decision this Term?

A: To me, the biggest surprise was the Fair Housing Act (FHA) case (Texas Department of Housing & Community Affairs v. the Inclusive Communities Project, Inc.). For years, everyone believed that the FHA protected against disparate impact discrimination. Every circuit to rule on it held it covered disparate impact claims. Nonetheless, when the Court took this case, many of us feared that it would say that disparate impact is not covered by the FHA, and the only reason the Court would agree to hear the case, with all that legal precedent in one direction, would be to reverse the common understanding. But by a 5–4 margin, the Court upheld disparate impact. To me, that was a pleasant surprise.

Q: What was the biggest disappointment?

A: Probably City and County of San Francisco v. Sheehan, dealing with qualified immunity. Police officers at a mental health facility broke into a room where a patient, who was threatening one of the caretakers, had locked herself inside. And because she threatened the police officers, they shot her. She was only injured, but the question was whether they had qualified immunity to resist liability. The Court found that they did have qualified immunity at the time of the incident, because their actions were not clearly established as a constitutional violation. The most disappointing part of the decision was that the Court basically took the case to determine if this established a constitutional violation. The Court chose not to answer that question, so the question is still open, and we have no guidance on whether this type of police action violates constitutional rights, meaning that it is still not clearly established. The issue is particularly important today when police shootings are regularly in the news, so this is very concerning.

Q: The Court tackled two employment discrimination cases and issued pro-plaintiff decisions in both EEOC v. Abercrombie & Fitch and Young v. UPS. Was it refreshing to see positive employment discrimination decisions?

A: It was very pleasant to see the Court hand down these two decisions. I thought the Court showed an awareness that’s not always evident in the formalistic way they approach these cases, and that was particularly good.

Q: Is Young a game changer for pregnancy accommodation claims?

A: I believe that’s right. UPS thought it could defend on the grounds that under its union contracts and other policies, it accommodated certain specific conditions—and pregnancy was not among them—so therefore, they did not have to provide less strenuous duties to pregnant women, even if they did to injured workers. Here, the Pregnancy Discrimination Act is clearly written and basically says that if you accommodate other employees for the same kind of issue, you have to accommodate those who are pregnant. That’s essentially what the decision says. I think it’s very important, and it gives the Pregnancy Discrimination Act teeth.

Q: Let’s talk about the Federal Tort Claims Act equitable tolling cases—U.S. v. Wong and U.S. v. June (issued in a single decision). Are you surprised it was a 5–4 split?

A: Not really. The Court had been trending in this direction on statutes of limitations. Courts generally have recognized more equitable grounds for tolling, and the trend clearly led to the Supreme Court’s result. The Justices’ prior decisions show they are pretty dedicated to that view, with some notable exceptions, so I was not surprised that it was close.

Q: Why was it important to file an amicus in Wong and June? (CCL filed an amicus on AAJ’s behalf).

A: The federal government, and some of the amici that filed in support of it, talked about the ramifications of any decision that would open up the “flood gates.” It was very important for AAJ to speak to the kinds of cases equitable tolling would affirmatively affect and open to redress, as well as the many cases that would not be affected by tolling. As a result, the Court had a very realistic view of the kinds of cases that would be affected.

Q: Let’s jump to securities cases. Omnicare, Inc. v. Laborers District Council Constructions Industry Pension Fund held that a statement of opinion is not “an untrue statement of fact” because the opinion ultimately proves incorrect. Plaintiff attorneys say that overall, it’s a win for investors. What is your take?

A: I think the decision is largely a place keeper. What we are going to now see are battles over what constitutes fair opinion and what constitutes undisclosed facts. I’m sure that all these statements now will be couched in terms of opinions to resist liability. Investors who are suing are going to have to fight to say that, no, this was a factual matter and that an investor should have expected a true statement about it.

Q: Does it still give defendants wiggle room in these cases?

A: Yes, and the question is how much wiggle room lower courts will allow.

Q: The Court seems fixed on securities cases. Do you think this trend will continue?

A: I can’t explain why it seems to have this appetite for securities cases, but it is clearly evident that they do. Everyone who is looking for the Court to take a securities case knows that they have an audience.

Q: The Court issued a unanimous decision in Warger v. Shauers (juror’s affidavit about statements another juror made during deliberations to show the juror lied during voir dire is not admissible in a motion for a new trial). Why do you think the Court agreed to hear it in the first place?

A: It’s impossible to speculate on why it agreed to take a case when the Justices come up unanimously, and the decision seemed obvious from the outset as well. One possible reason is that they wanted to make it very clear that there is no debatable issue here. So the Court found this to be a good vehicle to do so. Another reason might be that originally it thought it raised some other issues that were not addressed by clear precedent and, in the course of briefing and oral argument, discovered those other issues were not present. These are some of the reasons that the Court takes a case and then determines that it is actually a slam dunk.

Q: The Court also heard several contentious cases in the court of public opinion—King v. Burwell and the three same sex marriage cases. In each of those instances, do you think those decisions end the debate?

A: I don’t think there is any chance of seeing the marriage equality cases reversed. But having said that, there are issues that they open that are bound to be contentious and will be brought before the Court over the next few years.

In King v. Burwell, the authority of the federal government to come up with a mandatory health insurance scheme­—of the kind that the Affordable Care Act is—is also largely settled, but there are still going to be lots of little issues that come up. We’ll see cases in the courts that are being decided every which way, and some of those may indeed return to the Supreme Court. I think the interesting lesson from King is that Chief Justice John Roberts, in writing the majority, took an interpretative approach, focused on the law’s purpose, which is very different from the textual approach he often favors. Whether this becomes an approach he sticks with, or that the Court sticks with, is going to be very interesting.

Q: Let’s briefly discuss the three certiorari petitions the Court granted focusing on various class actions: DirecTV, Inc. v. Imburgia; Spokeo, Inc. v. Robins; and Tyson Foods, Inc. v. Bouaphakeo. Is the Court targeting class actions again?

A: It certainly looks that way. This is a Court that has not been very favorable to litigation, which is a very unusual position for a court to take. Because of their hostility toward litigation, you always wonder if they fully understand its impact. The only member of the Court with significant trial-level experience is Justice Sonia Sotomayor. She really seems to understand trials in a way that other Justices do not. I think that lack of experience plays out in their decisions.

Q: Compared to previous terms, it seems that, overall, the Term was a net positive for plaintiffs. Would you agree?

A: I would agree with that. Perhaps our standards have been lowered also, because when there’s no great damage, we feel it’s been a great Term. I think it was that kind of Term, and if anything characterized the way the Court acted, it was that practicality mattered. Often, the Court has gotten deep into various legal doctrines and decided these abstract issues that affect people in sort of incomprehensible ways. This Term, I think there was greater attention to the practical consequences of those legal doctrines, and that’s probably the touchstone of this Term.​