Upcoming Cases in the United States Supreme Court's 2010 Term

The first Monday in October represents the start of a new term for the United States Supreme Court. The Supreme Court has already agreed to hear over 50 cases during the term that began October 4, 2010. This alert highlights some of the important cases that will be presented in the next few months, organized by their general subject matter.

Some of these cases are particularly interesting because they were recommended to the Supreme Court while Justice Elena Kagan was acting as the U.S. Solicitor General. Justice Kagan has recused herself on many of these cases, meaning only eight of the nine Justices will take part in deliberations, greatly increasing the likelihood of decisions without a clear majority. Because Justice Kagan replaced Justice John Paul Stevens (considered a more liberal member of the court) her absence could also shift the court's ideological makeup to the right. Justice Kagan's recusals are noted when applicable.

Employment & Labor

National Aeronautics and Space Administration v. Nelson (Docket No. 09-530)

The plaintiffs in this case are twenty-eight employees of the California Institute of Technology working at NASA's Jet Propulsion Laboratory. The Supreme Court is asked to decide whether public employers can require job applicants to disclose counseling for illegal drug use they received within the previous year, and whether they can ask an applicant's references for any information that could be adverse to the applicant's employment at a federal facility (including the applicant's mental and emotional history, sexual history, and financial stability). The scientists and engineers argued that NASA's inquiries violated their Fourth Amendment right to informational privacy. The Ninth Circuit Court of Appeals agreed that the practice was unconstitutional, and it granted an injunction barring the government from implementing its background checks at NASA's Jet Propulsion Laboratory. NASA appealed to the U.S. Supreme Court.

Oral argument was scheduled for October 5, 2010, and did not include Justice Kagan, who recused herself.

Kasten v. Saint-Gobain Performance Plastics Corp. (Docket No. 09-834)

Under the Fair Labor Standards Act (FLSA), employees who report violations of the statute are protected from retaliation by their employer. The Supreme Court must decide whether an oral report is entitled to the same protection as a written report under the FLSA. Kevin Kasten claimed he made several verbal reports to his employer, and was disciplined and fired in retaliation. Saint-Gobain Performance Plastics claimed it fired Kasten because he repeatedly violated company policies. Saint-Gobain also claimed that it never received a verbal report, but that even if it had, the FLSA requires official reports to be made in writing. Kasten admitted that he never made a written report, but he argued that oral reports should also qualify for protection under the FLSA. The Seventh Circuit Court of Appeals agreed with the employer, and held that oral reports are not entitled to protection under the FLSA. Kasten appealed to the U.S. Supreme Court.

Oral argument was scheduled for October 13, 2010, and did not include Justice Kagan, who recused herself.

Staub v. Proctor Hospital (Docket No. 09-400)

This case requires the Supreme Court to consider the liability of employers that unknowingly make illegal employment decisions based on the influence or advice of nondecisionmakers with a discriminatory motive. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from taking discriminatory action based on an employee's status as military servicemember. Vincent Staub's immediate supervisors at Proctor Hospital resented his absences from work for his Army Reserve duties, which required additional employees to fill his shifts. Although they had no authority...