In-house attorneys have packed schedules and ever-growing “to-do” lists. We need to focus on the day-to-day challenges of our organizations, assist with strategic planning and handle all of the emergencies that seem to crop up whenever it’s most inconvenient. With all of that hustle and bustle, it can be easy to think of the Supreme Court (when we have time to think of it at all) as something of interest solely to law students and academics. That would be a mistake. The Supreme Court is more relevant than ever to in-house counsel, and your entire legal team can benefit from making time to follow its docket.
We live in an era of rapid change and the Supreme Court has been changing with us. Of the nine seats on the court, one was filled less than a year ago by Justice Sonia Sotomayor and another held by the retiring Justice John Paul Stevens is expected to be filled in the next few months. Given that two other seats also have relatively new occupants (Chief Justice John Roberts started in 2005 and Justice Samuel Alito in 2006), almost half of the Supreme Court will have turned over in the past five years. That’s a great deal of change in a very short time. If your view of the Supreme Court hasn’t kept up, this is a perfect time to rethink its relevance to your practice.
The Roberts court has increasingly taken on issues that matter to our internal clients. In 2008, the Supreme Court heard a total of 42 cases, of which only 16 addressed a “business” issue. In 2009, that number rose dramatically. Out of a total of 45 cases, more than half (24) could be described as “business” cases. In-house counsel who haven’t taken note of this trend risk missing out on crucial developments that will influence the business landscape for a long time to come. To take just a few examples, the Supreme Court recently weighed in on the following subjects of importance to a wide range of corporate and organizational clients:
Having a Voice. In this year’s Citizens United decision, the court held that it is unlawful to impose limits on corporations’ ability to devote resources to political campaigns. In other words, companies and trade associations have the fundamental right to participate fully in the political process, including the right to support candidates and to purchase airtime to advocate for their causes. Knowing that your client has the same First Amendment rights as an individual is key to providing advice on media and political strategy.
Intellectual Property. This summer, the court issued a decision in the Bilski case that addressed the extent to which business methods are eligible for patent protection. The decision did not provide the landmark clarity that some observers had hoped for. As a result, this issue will continue to be debated in federal courts. Any organization that derives a competitive advantage from its processes will need to monitor this evolving body of precedent to protect those intangible assets going forward.
Sarbanes-Oxley. The court also recently issued a decision in the Free Enterprise Fund case, a ruling that upheld the Sarbanes-Oxley Act as “fully operative,” despite ample opportunity to strike it down or curtail its effect. As a result, in-house counsel will need to continue to watch the court to see where—or if—the justices impose limits on the latest waves of federal regulation.
Also on the court’s docket are issues ranging from bankruptcy protection to compensation for corporate executives—subjects likely to be of great interest to all of our businesses.
If ever there was a time when the Supreme Court ignored “business” issues, that time has ended. Staying informed about the Supreme Court isn’t an academic exercise: It’s a smart use of your resources that will keep your advice on-the-money and your organization a step ahead.