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WASHINGTON – As U.S. Supreme Court watchers – from business organizations to legal groups to appellate litigators – look ahead to the Court’s docket this term, there are still many unknowns.

But commentators at two recent panel discussions said this term, which officially kicks off on Oct. 5, may be remarkable both for what it doesn’t have – blockbuster cases – and for what it does have – a new justice, a sign of another possible retirement and a new solicitor general.

Starting off without a bang

After last year’s decisions examining issues that included Second Amendment rights, federal preemption of tort claims and the right of criminals to access possibly exculpatory DNA evidence, this term’s docket may seem pretty boring.

So far, there are some surprising absences, according to Court watchers.

“There were seven preemption cases on the docket last term. Yet this term, there are no preemption cases yet,” said Robin S. Conrad, executive vice president of the National Chamber Litigation Center, the legal and public policy advocacy arm of the U.S. Chamber of Commerce.

Conrad, speaking at a panel hosted by the NCLC, also noted the absence of employment cases on the docket at this point, despite recent major rulings by the Court on retaliation and other employment issues.

But there are a number of cases that, while not as headline-grabbing as they could be, tackle key legal issues important to attorneys and businesses.

“In culinary speak, I would classify the [cases] on this term’s docket as steamed vegetables and baked chicken,” said Andrew Pincus, a partner in the Washington office of Mayer Brown, at the NCLC panel. “[They're] healthy, but not as enticing as the dessert you may be looking for.”

The docket is dominated by criminal cases, including two cases that deal with Miranda rights.

“Two Miranda cases on the docket … is a big deal, because the Court hasn’t taken a Miranda case in about five years,” said Pamela Harris, executive director of the Supreme Court Institute at the Georgetown Law Center, at a discussion panel hosted by the American Constitution Society.

Harris noted that in these cases, Justice Anthony Kennedy may once again find himself in the role of swing voter for a divided Court.

In addition to the numerous criminal cases on the docket, there are also already three bankruptcy cases – including one that considers whether bankruptcy attorneys are covered by regulations governing debt relief agencies.

The Sotomayor effect

The newest justice on the Court will continue to be a big focus as the term gets underway.

“The biggest and most obvious change on the Court is the addition of a justice – Justice Sonia Sotomayor,” Harris said. “I think all eyes will be on her.”

The perspective of Sotomayor, a former prosecutor, in criminal cases will be of particular interest since it could depart from the approach taken by her successor, retired Justice David Souter, said Lisa Kung, executive director of the Southern Center for Human Rights, at the ACS panel.

The interest in Sotomayor’s views is already apparent.

After the Court’s first oral argument with the new justice in the case Citizens United v. Federal Elections Commission on Sept. 9, a flurry of news articles and commentaries dissected the few questions she asked in an attempt to glean her views on the issue of treating corporations like individuals in the First Amendment context.

And there is still much more to learn.

“We’ll see what her views are on business cases and constitutional issues,” Pincus said. “I think we will all learn a lot by the end that we don’t know now.”

Conrad also pointed out that this is the first full term during the tenure of Solicitor General Elena Kagan.

“We are interested in seeing whether there will be any dynamic changes with a solicitor general from a new administration,” Conrad said.

He noted that the relationship between the Court and Congress is worth watching, given the recent trend of lawmakers acting to overturn High Court rulings that they say misinterpret federal law.

“We’ve seen several instances when Congress has introduced legislation to nullify specific Supreme Court decisions,” Conrad said, pointing to legislation like the Lilly Ledbetter Fair Pay Act.

Other pending bills would create a “scheme liability” cause of action in securities fraud cases, which the Supreme Court declined to do in Stoneridge Investment Partners v. Scientific-Atlanta Inc.; overturn the ruling in Ashcroft v. Iqbal which toughened federal pleading standards; and allow state law tort suits over faulty medical devices by overturning Riegel v. Medtronic.

Is Stevens staying?

The recent news that Justice John Paul Stevens, currently the oldest member of the Court and the second oldest justice ever at 89, has not filled his law clerk spots for the term beginning in 2010 had panelists wondering if he may step down before this term is complete.

If he does, the impact on the Court would be much greater than simply the loss of one of the Court’s most liberal voices. It would have a huge impact on oral arguments.

“Justice Stevens is one of the last practitioners – or perhaps the last practitioner – of the old style of questioning” during oral arguments, Harris said.

While oral arguments have largely become more like theater, Harris said, Stevens is one of the few justices who uses the time to press attorneys on the legal issues involved in cases, rather than to vent or to make his own perspective clear.

For more on the upcoming term, see Lawyers USA‘s Supreme Court preview.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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