The five-letter word of the day for Nike, Inc. is "rerun." That's because, in just nine words ("The writ of certiorari is dismissed as improvidently granted"), the United States Supreme Court effectively told Nike that it would see it again at least three years from now, after the California Supreme Court takes another look at the seminal commercial speech case of Nike v. Kasky.
The outcome, if it can be called that, is not at all what even the most seasoned Supreme Court watchers would have predicted. In the absence of the Court's (or even a majority's) view, we are left with the thoughts of a few justices who authored or joined concurring or dissenting opinions. Justice Stevens, with whom Justice Ginsburg joined and Justice Souter joined in part, authored one concurring opinion that explained the Court's decision to dismiss the writ of certiorari as being supported by three independently sufficient reasons: "(1) the judgment entered by the California Supreme Court was not final . . .; (2) neither party has standing to invoke the jurisdiction of a federal court; and (3) the reasons for avoiding the premature adjudication of novel constitutional questions apply with special force to this case."
The first dissenting opinion comes from Justice Kennedy, whose opinion merely states, without any additional support for his position that he does not agree with the order. The second dissenting opinion comes from Justice Breyer, with whom Justice O'Connor joined. Therein, Justice Breyer opines that "delay would be similarly wrong here [and that he] would decide the questions presented, as [the Court] initially intended." After a lengthy discussion of why the Court should decide the case, Justice Breyer then turns to the merits of the case, concluding that the speech at issue here is distinguishable from purely "commercial speech" and that "it is likely, if not highly probable, that, if this Court were to reach the merits, it would hold that heightened scrutiny applies; that under the circumstances here, California's delegation of enforcement authority to private attorneys general disproportionately burdens speech; and that the First Amendment consequently forbids it."
We hate to think about the billable hours spent on the 34 briefs on the merits (including 31 amicus briefs, one of which was filed by the Center for Individual Freedom) and the oral arguments. All to suffer the fate of being told that, at least for now, the Supreme Court is refusing to decide the questions presented.
To read the Center's amicus brief filed with the Supreme Court, click here.June 26, 2003
|Legal Issues News Protection for individual freedom provided by the rule of law news Educating the public through legal commentary news Latest legal issues affecting individual freedoms news Official legal websites news Supreme Court Docket Summary By Thomas Goldstein news Humorous court case news|