14 BARRON’S September 28, 2020
countability Center, a liberal think tank.
Even if another conservative only ce-
ments rulings with a larger majority, the
court may be more inclined to take up
cases advocated by the Chamber and other
business-friendly groups, says Adam
Feldman, author of the Empirical Scotus
blog. “If the middle gets pushed to the
right, the court may structure opinions
that don’t cater as much to left-leaning
causes,” he says.
Moreover, another conservative may be
more inclined to overrule precedents than
Roberts, who tends to favor limited rul-
ings. “Opinions will look different with a
justice who’s more business-friendly,”
Saharsky says.
W
hether that tips the scales toward
businesses remains to be seen.
And cases in this term could break
along uneven ideological lines. The
Ford case, for instance, hinges on whether a
company can be sued by consumers in a
state court if the firm doesn’t do business in
the state. Much of the business community
backs Ford, arguing no, andGinsburg may
have been sympathetic to that view: She
wrote a unanimous opinion in 2014 that
limited the ability of plaintiffs to cherry-pick
a jurisdiction (a practice known as forum
shopping). “You could say that was a busi-
ness-friendly decision, or a decision where
she insisted on fairness for all,” says Harry
Sandwick, a partner at Patterson Belknap
and a former federal prosecutor.
Perhaps the highest-stakes case is
Google versus Oracle. In a nutshell, Google
appropriated lines of software code from
Oracle’s Java operating system to develop
Android. Oracle says Google infringed on
its copyrights, while Google says the por-
tions of the code that it copied weren’t
copyrightable (arguing it was part of a
method or system) and that its use was
lawful under “fair use” principles. Google
won in lower courts on both issues, while
the appellate court disagreed. Tech compa-
nies and advocacy groups have weighed in
on both sides, arguing that a ruling could
protect software innovation (if Google
wins) or intellectual-property rights (if
Oracle prevails).
The court plans to hear oral arguments
on Oct. 7. Ginsburg was a strong defender of
copyrights, and her replacement may be less
sympathetic to Oracle (if the case is re-heard
with a full bench). The court may also avoid
the copyright questions, ruling on the nar-
rower issue of whether there’s a right to a
jury trial in fair-use cases, says Tyler Ochoa,
a law professor at Santa Clara University.
“It’s a very difficult case to call,” he says.
The court’s shiftingpower dynamics
make it even more of a toss-up.B
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