SCt Today

Greetings, sportsfans! The Chief’s been working on the railroad in today’s lone opinion. But don’t stop reading now, tempting though that may seem: I promise there’s some interesting stuff at the end.

Norfolk Southern Railway v. Sorrell,   05-746

The Chief—whether graciously or of necessity­—kept a real dog for himself from the October sitting. He wrote the Court’s opinion (joined by all but RBG) vacating the decision of the Missouri Court of Appeals. The question was whether, in Federal Employers’ Liability Act cases (railroad injury cases often tried in state courts), Missouri properly applied a more lenient standard of causation for employer liability than for an employee’s contributory negligence. The Court saw no reason for tilting the playing field toward the employee in this way. The common law applied the same causation standard for both employer negligence and contributory negligence, and FELA’s statutory text did nothing to alter the common law rule. And it makes no sense to apply different causation standards under FELA’s comparative fault system, which treats contributory negligence as a direct offset against employer negligence. The Chief declined to decide precisely what the causation standard is, on the ground it would be unfair to let Norfolk “switch gears” and seek a ruling on that issue after it took conflicting positions below. That non-holding is a great example of both the Chief’s clever railroad humor and his attempt to preserve unanimity by reaching only issues that are squarely presented.

DHS concurred, joined by Scalito (AS + SAA). While Justice Souter agreed that the Court should not establish the causation standard, he couldn’t resist offering a few words of wisdom on it anyway. It should be the common law “proximate cause” standard, and lower court rulings that rely on a recent Supreme Court case to water down that standard are just plain wrong.

RBG concurred only in the judgment. She agrees with the Court that the causation standards should be the same, but she reads Supreme Court precedent (contra DHS) as departing from the strict common law standard, thus making it easier for plaintiffs to prove negligence. RBG contends that this reading is in accord with FELA’s remedial purpose, as Justice Douglas colorfully put it, to lay on that robber baron railroad industry “some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” Anyone else have a craving for sausage about now?

ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions—RBG and SGB. The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act). It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns—Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory. As a result, either one could be writing Cunningham to uphold California’s guidelines. On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former D.C. Circuit judge who also has expertise in that area. My purely speculative guess: Breyer writes upholding California’s system as salvaged by the California Supreme Court, thus reprising his role in Booker. And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term). However, if the Chief’s dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR’s dissent) and SGB writing Global Crossing. A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors’ pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial sentencing schemes. If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California’s guidelines.

CORRECTION: Supreme Court Today’s public editor caught an error in yesterday’s edition. Your humble sportscaster reversed the role of the parties in his description of Medimmune v. Genentech: Genentech is the patent holder, and Medimmune is the disgruntled (but now victorious) licensee.

Until next time, that’s today’s baseball. 

Aaron M. Streett is an associate in the Houston office of Baker Botts L.L.P., and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts L.L.P.; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. If condition persists for more than four hours, please consult a doctor.

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