Page 7 - NC Triangle Vol 7 No 6
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Jury Is Out on Kavanaugh
Impact on SCOTUS
The U.S. Supreme Court term that began Mon- day, October 1 will long be remembered for the bloodbath that ultimately led to Brett Kavanaugh replacing Justice Anthony Kennedy who retired last summer.
Kilpatrick Townsend attorneys Adam Charnes and Christin Jones, who advise the  rm’s clients on the impact of prior court rulings and the possible impact of pending cases, said it remains to be seen where Justice Kavanaugh may plant his  ag on the judicial spectrum.
Charnes and Jones presented a U.S. Supreme Court Up- date to the Research Triangle Area Chapter of the Associa- tion of Corporate Counsel at a CLE in October sponsored by Kilpatrick Townsend.
“Kavanaugh is widely expected to tilt the court more conservative,” said Charnes. “Conservatives on the court are expected to retain their 5-4 edge. It will be interest- ing to see what impact the con rmation hearings have on Justice Kavanaugh.
“ ere could be three widely di erent impacts. One ef- fect could be for him to bend over backward to show, as he said in his speech a er the con rmation, that he’s a justice for all the American people and to win over his critics to show he is not political. You could also see the opposite
However, Charnes noted that Justice Ruth Bader Ginsburg is 85 years old and Justice Stephen Breyer is 80. “Actuarial tables suggest that at some point in the next few years, a president is go- ing to replace these justices and that could dramatically change the court.”
– that he’s polarized by the bit- ter con rmation process and be- comes more conservative than he otherwise would have been.”
“In the last term, the court was very conservative. In fact, the last term was a high-water mark for conservative dominance of the Supreme Court. Nineteen cases were decided by a 5-4 decision, that was 26 percent of its rulings. In 14 of those cases, then-Justice Anthony Kennedy, the traditional swing vote, voted with the four more conservative justices,” said Charnes.
Charnes predicted that the up- coming term would be low key, “ e court has a habit of follow- ing an exciting, controversial term where they are closely divided and things get a little heated at the end with a term that is calmer.”
“ is really shouldn’t have been a surprise to many who follow  rst amendment opinions because it continues the Supreme Court’s previous trend of invalidating economic regulations through the  rst amendment,” said Jones.
Another case, South Dakota v. Wayfair, involved sales tax on internet sales. “E-commerce has grown into a sig- ni cant and vibrant part of our national economy,” wrote Chief Justice John Roberts in dissent.  e Court ruled that companies must charge state sales tax even if they do not have a physical presence in a customer’s state.
Most large retailers are already paying these taxes, said Jones. “ is really a ects mom and pop shops that sell products throughout the country and now must bear the administrative burden of keeping track of sales taxes in all the states they send their items.”
One of the cases to be heard in the upcoming term in- volves whether copyright registration is made when the copyright holder delivers the application to the Copyright O ce or only once the Copyright o ce acts on the ap- plication. “It makes a di erence because you can’t sue in court until there is copyright registration,” said Charnes.
Another important patent case will look at, “whether under the American Invests Act, an investor’s sale of an invention to a third party that is obligated to keep the in- formation con dential quali es as a prior art for the pur- poses of determining the patentability of the invention,” said Charnes.
Last year’s ruling in Janus v. AF-
SCME Council 31 was one of a number of windsock cases in which the Court’s ruling was pro-business according to Jones.  e case involved the power of unions to collect fees, known as “agency fees,” from non-union workers in the public sector. While the practice is legal in the private sector, the Court ruled that agency fees in the public sec- tor violate the First Amendment.

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