Late June Grants Could Spice Up Next SCOTUS Term

Photographer: Andrew Harrer/Bloomberg

  • Court typically grants around 10 cases at end of term
  • Potential grants include follow-up to Masterpiece Cakeshop, redistricting, and terrorism support

The U.S. Supreme Court will likely add a batch of cases, possibly including a blockbuster or two, as it wraps up its term next week.

In recent terms the court has granted about 10 additional cases on the last day of the term and in a follow-up orders list a day or two later known informally as the clean-up list.

It usually includes some high profile grants, Supreme Court veteran Andrew Pincus, of Mayer Brown LLP, Washington, told Bloomberg Law.

This year, the court could grant a follow-up to the Masterpiece Cakeshopcase, involving a baker who declined to cake a wedding cake for a same-sex couple, or more redistricting challenges ahead of the critical 2020 elections.

The high court is about a dozen cases short of having a full early-term docket for the fall.

The court can handle around 36 cases on the October, November, and December oral argument calendars with the customary two arguments for each day of the session. So far, it has granted only 24 cases, for a total of 23 hours of argument.

Granting review before the end of the term will allow the parties the full time for briefing.

So far, the cases the court has agreed to hear don’t involve the same kind of blockbuster issues that the court took on this term, Stephen I. Vladeck, a professor at the University of Texas at Austin School of Law who argued his first case at the high court this term, told Bloomberg Law.

This term the justices heard cases on the legality of President Donald Trump’s travel ban, the intersection of religious liberty and anti-discrimination, and the vexing issue of partisan gerrymandering.

The cases granted so far for next term are interesting, but they certainly aren’t as high profile, Pincus said.

Trump Term

It’s too early to tell how next term will really shape up, Vladeck said. That will depend on what’s added to the docket, he said.

This term the court faced some weighty issues, but next term the drama could come from a batch of cases arising from Trump administration policies.

“It’s quite possible by this time next year that a number of the personal lawsuits against him might make their way to the Justices, and the policy shifts for which his Administration is responsible (besides the travel ban) will have had more time to percolate through the federal courts,” Vladeck said.

Those include the administration’s cancellation of the Obama-era Deferred Action for Childhood Arrivals program, and the Department of Justice’s targeting of “sanctuary cities,” among others.

“It’s speculation of course, but it wouldn’t surprise me if, by this time next year, we’re talking about the Court’s October 2018 calendar as the ‘Trump Term,’” Vladeck said.

SCOTUS Stats

Still, there are some things to say about the court’s 2018 term.

Any case granted after late January was pushed to next term’s calendar to allow enough time for briefing. The first grant for the 2018 term was Weyerhaeuser Co. v. U.S. Fish and Wildlife Services, about EPA’s authority to designate private lands as “critical habitat” for endangered or threatened species.

It’s one of 14 civil cases that the court has agreed to hear, along with 10 criminal cases. Typically about a third of the court’s docket is criminal cases, so expect the justices to add more civil ones as the term nears.

So far all of the granted cases have come to the court via its discretionary certiorari process. None invoke its original or mandatory appellate docket; it had five such cases this term.

Federalism and Precedent

Some of the already-granted cases are noteworthy, even if they don’t have blockbuster potential.

For example, Gundy v. United States could “breathe new life into the ‘non-delegation’ doctrine,” Vladeck said.

Gundy asks if Congress’s delegation of authority to the U.S. Attorney General to determine who is required to comply with the Sex Offender Registration and Notification Act violates separation of powers.

Pincus pointed to a takings clause case, Knick v. Township of Scott, as particularly interesting.

The case specifically asks the court to overturn a previous case that required takings plaintiffs to first seek redress in state courts. The court’s decision could push more takings cases into federal court, where they will get a closer look, Pincus said

It’s not very often that the court is explicitly asked to overturn precedent, Pincus said.

It could therefore give court watchers a hint at how the court—and particularly Justice Neil M. Gorsuch—will view other precedents, like those dealing with abortion.

Riveting Relists

Pincus and Vladeck agreed that more grants are likely before the end of the term.

There are a lot of really good cases waiting in the wings, Pincus said.

Cases that are ready to be granted—meaning that they’ve been distributed to the justices for consideration—include a follow-up to this term’s Masterpiece Cakeshop, which pitted the First Amendment against anti-discrimination protections for LGBT individuals.

There are several redistricting challenges out of North Carolina that could tip the balance in favor of Democrats in the 2020 elections and subsequent rounds of redistricting.

And there’s a pair of cases against Sudan for its alleged support of terrorists responsible for the 2000 bombing of the USS Cole.

All have been “relisted”—discussed by the justices at more than one of their private conferences—which is a sign that they are more likely to be granted.