The ‘Supreme Court Year in Review’: A Great New Tradition!

Last Friday, I had the pleasure of moderating the “U.S. Supreme Court Year in Review,” a panel discussion held at the Sacramento office of Orrick, Herrington & Sutcliffe LLP. The panel featured an impressive group of experts including Dean Kevin R. Johnson, Professors Carlton Larson and Aaron Tang, and Anand Easha, an Associate in Orrick’s San Francisco Office. The event, the first of a planned annual series, drew an audience of about 40 local attorneys, many of them King Hall alumni, as well as Professors Lisa Pruitt and Cruz Reynoso, King Hall students working for Orrick as summer associates in Sacramento and the Bay Area, and reporters from the Davis Enterprise and California Lawyer.

It was great to be able to hear the insight and analysis of my friends and colleagues on such a wide range of Supreme Court issues, and wonderful to see such a large turnout of King Hall alums.  Among those in attendance were Marc Levinson ’73, Senior Counsel at Orrick and an organizer of the event, Steve Boutin ’72, Toso Himel ’75, Grace Arupo Rodriguez ’75, Zahid Ali ’93, Kendall Bonebrake ’09, Kelly Borelli ’92, Marion Cantor ’82, Sue Chang ’16, Jenny Decker ’92, Emily Doringer ’00, Anna Fenton ’07, Rebecca Ferguson ’15, Elizabeth Friedman ’92, Ronny Hamed-Troyansky ’15, Roman Johnston ’01, Eric Olah ’13, Alan Perkins ’73, and Galena West ’01.

Professor Larson shared some interesting statistics about the Court’s term: most of the Court’s decisions in the past year were unanimous; Justice Kennedy was in the majority 97% of the time; and Justice Kennedy agreed with Justice Kagan more than he agreed with Justice Thomas. But he called the Court since Justice Gorsuch’s arrival “probably the most conservative Supreme Court in at least 80 years.”

Professor Tang, who clerked for Justice Sotomayor, called the past term “the calm before the storm,” noting that while there were no game changers decided this year, a number of blockbuster cases are likely to come before the court in the coming year, including cases involving President Trump’s executive orders on immigration, partisan gerrymandering, whether requiring business owners to serve same-sex couples violates religious freedom, whether the government needs a warrant to access personal cell phone data, and other hot button issues.

Professor Tang also shared “credible rumors” suggesting the coming year could see the retirement of Justice Kennedy, in which case seemingly settled law such as Roe v. Wade and same-sex marriage would be “live issues.” Tang added, “It would be a storm such as we have never seen in modern Supreme Court history.”

Dean Johnson discussed the growing number of immigration cases coming before the Court, including about seven of the approximately 70 cases accepted for review this year. Interestingly, Dean Johnson characterized the strongly conservative court as being relatively favorable toward immigrants. Immigrants have won about three-fourths of the time over the past five years, he said.  And recent decisions show the court moving away from the Plenary Powers Doctrine—the notion that the executive and legislative branches have the power to set immigration policy without judicial review.

Easha Anand from Orrick’s San Francisco office, also a former Justice Sotomayor clerk, discussed the “shadow docket,” the 7,000-8,000 petitions for certiorari the Court receives each year, of which only about 80 are heard. The rejected cases are still significant, she said. For example, in some instances, justices author dissenting opinions regarding the dismissal of a case, and these may serve as a “roadmap for litigants” seeking to bring similar issues before the Court. 

Thanks to everyone at Orrick for hosting this remarkable event! I look forward to what I hope will become a great new tradition for the School of Law, and I hope to see an even bigger turnout of the local legal community in the years to come.