On Law: High court can make or break you

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  Sept. 20, 2002 at 2:04 PM
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WASHINGTON, Sept. 20 (UPI) -- Pin-striped appellate attorneys are sweating bullets onto their $600 Gucci shoes as the Supreme Court of the United States gets ready to say which of the summer petitions it will accept for argument this upcoming term.

The justices will accept just a handful of the 2,000 or so petitions filed with the high court over the summer. They will announce that handful the week after next, before court opens on the first Monday of October.

The rest they will reject in a series of one-line orders handed out as a group on the first day of court.

For those few attorneys whose cases are accepted by the Supreme Court, there will be joy. For those hundreds whose cases are rejected, there will be darkness.

After all, if your case is rejected by the Supreme Court, you have nowhere else to go. You have to tell your client that the case is finally over, and that you have positively and absolutely lost it.

In contrast, the future is bright for the lucky few.

When presidents have juicy jobs to fill, they usually look for successful Supreme Court litigators. Before being picked by President George W. Bush last year as U.S. solicitor general, Washington attorney Theodore Olson had argued 15 cases before the Supreme Court, winning almost all of them.

Ruth Bader Ginsburg was an appellate judge when President Bill Clinton tapped her in 1993 to be only the second woman Supreme Court justice in history. But her real claim to fame came as an attorney for the American Civil Liberties Union in the 1970s, when in a series of brilliant appearances before the Supreme Court, she argued the concept of sex discrimination into law.

In contrast, most of the arguments the Supreme Court will hear this October are not the kind that set your blood pumping. Few will register in the public mind, which is already fully occupied by possible war with Iraq.

With each case, the Supreme Court accepts a question, and lawyers are supposed to stick to that question in argument. Deciphering the question for the general public is usually loads of fun.

For instance, the question in the second argument scheduled for Oct. 15: "Does the federal court's power under the All Writs Act ... to protect its judgments provide the independent ground of subject matter jurisdiction required to exercise removal jurisdiction under (a related federal statute) over state court product liability action whose prosecution would violate settlement stipulation in related product liability action before federal court?"

Sounds sexy, doesn't it?

Actually, the case is quite serious, and will affect how people sue manufacturers of defective products, such as medical devices that hurt rather than help.

Other cases more obviously affect our everyday lives.

On Oct. 9, the justices will hear one of the most important arguments of the term.

In Eldred vs. Ashcroft, the court has agreed to decide whether Congress exceeded its power by extending copyrights an additional 20 years to bring U.S. law into conformity with the European Union's.

The 1976 Copyright Act gave an author or composer exclusive rights to a work for that person's lifetime, plus 50 years. The 1998 Sonny Bono Copyright Term Extension Act adds another 20 years to that protection.

However, the Constitution gives Congress the power to extend copyrights for only a "limited" time. The Supreme Court must decide what that means.

If the law's challengers succeed, many of the oldest creative images in the United States will suddenly become part of the public domain. Films such as "Citizen Kane," "Casablanca," "The Wizard of Oz" and "Gone With the Wind" would no longer be subject to copyright protection.

Many of the works of Robert Frost, Agatha Christie, Tennessee Williams, Ernest Hemingway, George Gershwin, Cole Porter, Irving Berlin and others would belong to the public, not the writers' estates.

How this would affect the world of ideas and entertainment in this country is anybody's guess.


Michael Kirkland is United Press International's senior legal affairs correspondent. He has covered the Supreme Court and other parts of the legal community since 1993.

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