Assistant U.S. Attorney General Gregory Katsas said Friday that the Supreme Court under Chief Justice John Roberts Jr. could be more welcoming to civil litigation than it has been recently. One leading indication of that, Katsas said, is the Court’s decision to allow habeas corpus petitions from foreign nationals captured abroad and held in Guantánamo Bay.
“I find it hard to believe that a court that would inflict that precedent on us could fairly be described as opposing civil litigation,” said Katsas, who oversees the Justice Department’s civil division. He also said that the habeas corpus cases have “tied this government and this war effectively up in knots.”
His comments came at the Federalist Society’s convention, during a panel called “Civil Litigation in the Roberts Court.” Panelists generally suggested that the Supreme Court under the late Chief Justice William Rehnquist sought to close off avenues of litigation but that it was too early to tell whether the Roberts Court would do the same.
Carter Phillips, managing partner of the D.C. office of Sidley Austin and a veteran Supreme Court litigator, said the Court might be more inclined to hear cases involving business litigation because Roberts had experience in that area as a lawyer. He said there remains uncertainty related to punitive damages and pre-emption.
“There are certainly ideological cross-currents,” Phillips said. “I wish I could say it’s all good news for the business community.”