Four Justices Recuse From Petition By Publishing Companies And New Grant on Disparate Impact

Sophisticated clients develop comprehensive strategies to get a cert petition granted. BMG Rights Management (US) LLC v. Cyril E. Vetter was one of those cases. The question presented concerned limitations on the reversion of copyrights. Paul Clement was retained to represent many of the leading media companies. The Parties to the Proceeding were:

Petitioners are BMG Rights Management (US) LLC; Capitol CMG, Inc. (Parent Company Stock Ticker: UMG); Essential Music Publishing LLC (Parent Company Stock Ticker: SONY); and Warner-Tamerlane Publishing Corp (Parent Company NASDAQ Stock Ticker: WMG).

The Plaintiffs secured top-side amicus brief from heavy-hitters including Paramount (represented by Lisa Blatt), the Motion Picture Association of America, the Recording Industry Association of America, and more. Everything was lined up for a cert grant. Alas, there would be no quorum.

Today’s order includes this entry:

Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” Justice Sotomayor, Justice Gorsuch, Justice Barrett, and Justice Jackson took no part in the consideration or decision of this petition.

The lower court judgment survives, and it is hard to imagine another case with the same parties would trigger a different outcome.

What happened here? I have to imagine that these four Justices, who all have lucrative book deals, recused because of either the parties identified, or the issue presented. Curiously, Justice Alito who is a new publisher, did not step aside.

Going forward, these and other publishing companies need to be aware that they likely do not have a quorum for a cert grant. However, they stand a good chance of having a favorable lower-court judgment affirmed by a quorum-less court.

I’ve often wondered whether it makes actual good business sense to give lucrative book deals to the Justices. Do they really ever earn back the advance or is it just an interest-free loan? Well, now that media companies may no longer be able to bring cases to the Supreme Court, that value proposition has become far more difficult.

We’ve seen how significant Justice Alito’s recsual was in Suncor. I think these media recusals may prove even more important to the business community. And while Justice Alito, could divest those stocks, authors with book deals cannot cure the conflict.

Also in today’s order is a cert grant in the racial preferences case from Montgomery County, Maryland. But the Court re-wrote the QP. Here is the Court’s version:

The petition for a writ of certiorari is granted limited to the following question: Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.

Here is the question framed in the petition:

Whether a plaintiff alleging that a school district implemented facially-neutral admissions criteria for a racially discriminatory purpose must show that the criteria produced a disparate impact on the targeted racial group before a court may consider evidence of discriminatory intent.

The Court dropped the reference to discriminatory intent and added a focus on “aggregate disparate impact.” This case could now reflect an opportunity for the Trump Administration to advance its new policy concerning disparate impact.

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