This morning I got to attend the public session of the Supreme Court. After some motions for admission to the bar, the court held two oral arguments. First was an extended (an hour and a half rather than an hour) argument in Alabama et al. v. North Carolina (Orig. 132). Following that was oral argument in Briscoe et al. v. Virginia (07-11191). As I've mentioned before, I was there to see Briscoe, but both cases were interesting.
In this post, I'll deal with Alabama. Briscoe analysis will be forthcoming. Alabama: The case is an original action since it involves four states suing another state. That means that the case begins and ends in the Supreme Court: there are no appeals. The record (evidence, testimony, etc.) is developed during proceedings in front of a special master, and then the Supreme Court reviews the record and issues a decision. This specific case involved the Southeast Compact, a collaboration by multiple states to deal with low-level nuclear waste. Under the terms of the agreement, the Compact's Commission would select a state to build a disposal facility, which would then be open only to members of the Compact.
To simplify a complicated case, essentially the contract between the states allowed any of them to withdraw from the agreement at any time. North Carolina had been selected to build a facility, and the other states (through the Commission) had provided North Carolina with about $80 million. In 1995 North Carolina halted the process because they believed it was no longer feasible, and in 1997 they formally withdrew from the compact. The case centers on whether North Carolina violated the terms or spirit of the contract by withdrawing after accepting so much money.
I noted a few reactions from the justices. Others, like Alito and Thomas, said nothing, so it's hard to predict their feelings.
Justice Scalia: Scalia has an interesting view on contract law. He apparently sees contracts largely through the lens of implementation. That means that, whatever the written terms of a contract are, it is partially defined by how the parties act under it. In this case, since North Carolina was receiving money from the other states and then ceased to receive that money, Scalia might consider that a good reason for them to back out. Even though the written contract did not require the other states to give money, the fact that they did so might add an implicit term to the contract.
Justice Sotomayor: The newest justice seemed largely concerned with the cost of the facility. She spent a few minutes of the argument trying to ascertain from the attorney for Alabama how much costs for the facility were over the initial estimates, with the implicit argument being that the raised costs justified North Carolina backing out of the deal.
Justice Roberts: The Chief, like Justice Sotomayor, seemed concerned with the issue of cost. For him, though, it was a response to Alabama's argument that the investment of $80 million obligated North Carolina to finish the deal. He pointed out that even if that money created some obligation, a lesser amount (the Chief chose $1 million) might not create such an obligation. He was concerned with where to draw the line.
Prediction
I haven't analyzed the breakdown yet, and I'm not sure I will. This case defies some of the more common ways of breaking down the Court (liberal/conservative, prosecution/defense). However, I'll give a hesitant prediction of a victory for North Carolina. I think they're right on the law, and that's got to count for something, right? I'll even go so far as to predict that Scalia and Sotomayor will be in the majority on a decision in favor of North Carolina.
Just for the fun of it, I'll toss in an additional prediction: Justice Sotomayor will write an opinion for this case, whether it's the Court's, a concurrence or a dissent. She is the only current justice with experience as an actual trial judge which makes her uniquely suited to deal with this case, and so I believe she'll want to make her voice heard.
In this post, I'll deal with Alabama. Briscoe analysis will be forthcoming. Alabama: The case is an original action since it involves four states suing another state. That means that the case begins and ends in the Supreme Court: there are no appeals. The record (evidence, testimony, etc.) is developed during proceedings in front of a special master, and then the Supreme Court reviews the record and issues a decision. This specific case involved the Southeast Compact, a collaboration by multiple states to deal with low-level nuclear waste. Under the terms of the agreement, the Compact's Commission would select a state to build a disposal facility, which would then be open only to members of the Compact.
To simplify a complicated case, essentially the contract between the states allowed any of them to withdraw from the agreement at any time. North Carolina had been selected to build a facility, and the other states (through the Commission) had provided North Carolina with about $80 million. In 1995 North Carolina halted the process because they believed it was no longer feasible, and in 1997 they formally withdrew from the compact. The case centers on whether North Carolina violated the terms or spirit of the contract by withdrawing after accepting so much money.
I noted a few reactions from the justices. Others, like Alito and Thomas, said nothing, so it's hard to predict their feelings.
Justice Scalia: Scalia has an interesting view on contract law. He apparently sees contracts largely through the lens of implementation. That means that, whatever the written terms of a contract are, it is partially defined by how the parties act under it. In this case, since North Carolina was receiving money from the other states and then ceased to receive that money, Scalia might consider that a good reason for them to back out. Even though the written contract did not require the other states to give money, the fact that they did so might add an implicit term to the contract.
Justice Sotomayor: The newest justice seemed largely concerned with the cost of the facility. She spent a few minutes of the argument trying to ascertain from the attorney for Alabama how much costs for the facility were over the initial estimates, with the implicit argument being that the raised costs justified North Carolina backing out of the deal.
Justice Roberts: The Chief, like Justice Sotomayor, seemed concerned with the issue of cost. For him, though, it was a response to Alabama's argument that the investment of $80 million obligated North Carolina to finish the deal. He pointed out that even if that money created some obligation, a lesser amount (the Chief chose $1 million) might not create such an obligation. He was concerned with where to draw the line.
Prediction
I haven't analyzed the breakdown yet, and I'm not sure I will. This case defies some of the more common ways of breaking down the Court (liberal/conservative, prosecution/defense). However, I'll give a hesitant prediction of a victory for North Carolina. I think they're right on the law, and that's got to count for something, right? I'll even go so far as to predict that Scalia and Sotomayor will be in the majority on a decision in favor of North Carolina.
Just for the fun of it, I'll toss in an additional prediction: Justice Sotomayor will write an opinion for this case, whether it's the Court's, a concurrence or a dissent. She is the only current justice with experience as an actual trial judge which makes her uniquely suited to deal with this case, and so I believe she'll want to make her voice heard.
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