'Decent Chance' Seen of Supreme Court Taking Up Charter Discrimination Appeal
Comcast could join Charter Communications in trying to take a legal fight over racial discrimination claims by a video programmer to the Supreme Court. Experts told us odds of the issue getting taken up -- while long -- are better than many competing petitions for writ of certiorari. Charter's rates "at least an 8 or 9" out of 10 for getting a hard look by the court, said Barry McDonald, Pepperdine University professor of law.
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The 9th Circuit decision allowing litigation brought against Charter and Comcast to go forward (see 1811190023) went against clear Supreme Court precedent that "but-for" causation is necessary in discrimination claims, instead saying a plaintiff could prevail if it only showed race was one motivating factor, Charter petitioned Friday. The 9th Circuit exacerbated a circuit court split on the causation standard in federal discrimination law, it said. Charter said the decision ignores that the First Amendment protects editorial decisions not to carry Entertainment Studios Networks (ESN) content.
Miller Barondess' Skip Miller, outside counsel for respondents ESN and the National Association of African American Owned Media, emailed Monday that he expects Comcast will similarly file for cert. Comcast didn't comment. The cert petitions "are Hail Marys," Miller said, with the 9th Circuit decision being correct and following Supreme Court precedent, saying there's no split among the circuit courts.
Cert grants are long odds, with the court receiving close to 8,000 a year and hearing less than 1 percent, experts said. McDonald said cases the court hears have been declining over the years while petition numbers grow. He said that may be due to circuit courts getting better about being on the same page, or reflect appellate courts disagreeing less with lower courts.
Also against cert grants is the court's insistence its role is not to correct errors but to try to ensure federal law uniformity, so there has to be a legitimate split and not just a difference in facts between cases, emailed Richard Friedman, University of Michigan professor of law. He said at least on its face, one thing helping the Charter cert petition is that it was brought by former Solicitor General Paul Clement, now at Kirkland and Ellis. "This has a decent chance," Friedman said.
McDonald said the Charter petition has "a higher chance than usual" of getting a hard look by the justices. That's partly because 9th Circuit opinions trend liberal and the court regularly overturns them, plus it portraying a circuit split and raising an interesting question of constitutional law.
With the retirement of Justice Anthony Kennedy, a key swing vote, liberals on the court are going to be less apt to vote to grant cert on politically charged cases, while conservatives' inclination to grant more may be tempered by not wanting to appear too political on those issues, McDonald said. "I don't think they're going to be eager to make blockbuster moves early on." McDonald said Chief Justice John Roberts might be more prone to proceed incrementally on those charged issues.