SC Lawyer, November 2011, #1. The Bakers Dozen: U.S. Supreme Court Review 2010-11.

AuthorBy Miller W. Shealy Jr.

South Carolina BAR Journal


SC Lawyer, November 2011, #1.

The Bakers Dozen: U.S. Supreme Court Review 2010-11

South Carolina LawyerNovember 2011The Bakers Dozen: U.S. Supreme Court Review 2010-11By Miller W. Shealy Jr. A "baker's dozen" generally refers to 13 of something. It is believed the phrase originated in medieval England, where bakers gave an extra loaf when selling a dozen to avoid being penalized for selling short weight. This year, the Court has cooked up 13 very important rulings. No short weight here!

The top two cases

Lawyers and scholars love to debate which cases, of about 80 or so the Supreme Court decides each year, are the most important. An even greater bone of contention among lawyers is which Supreme Court case is the most important in any particular year. For the 2010-11 term, I think we have a tie for the most significant case: Snyder v. Phelps, 131 S.Ct. 1207 (2011),and Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011). Snyder is significant because of its sweeping defense of free speech, and Wal-Mart is important because of its significance for class actions and employment and business law.

In Snyder, members of the Westboro Baptist Church and Fred Phelps protested on a public sidewalk near the church where Albert Snyder's son's funeral was being held. Albert Snyder's son, Matthew Snyder, was a marine who died in Iraq. Phelps and others shouted slogans and carried banners stating, "America is Doomed," "You're Going to Hell," "God Hates You," "Fag Troops," "Semper Fi Fags" and "Thank God for Dead Soldiers." In an 8-1 decision, the Court held that Phelps and the Westboro Baptist Church were protected from tort liability by the First Amendment because the speech concerned a public matter and was disseminated while on a public sidewalk. Whatever one thinks of the opinion, it is certainly a strident and sweeping defense of free speech. Chief Justice Roberts wrote that,

"Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,'... or when it 'is a subject of legitimate news interest; that is a subject of general interest and of value and concern to the public,'... the arguably 'inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.'" 131 S.Ct. at 1216. The Court also noted, "[A]ny distress occasioned by Westboro's picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." Id. at 1218.

The second of the two cases is Wal-Mart Stores, Inc. v. Dukes. In Dukes, the Court reversed the Ninth Circuit, holding that approximately 1.5 million Wal-Mart employees could not be joined in a sex discrimination class action lawsuit. The Court held that Wal-Marts female employees claims should not have been certified under Federal Rule of Civil Procedure 23(a) because of a lack of commonality. In addition, the Court ruled that the claims for back pay were improperly certified under Rule 23(b)(2). Justice Scalia wrote,

"Here Respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all...

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