Editor’s Note: Welcome to the first edition of The Week Ahead, where Bloomberg Law Supreme Court reporter Kimberly Robinson breaks down what you need to know about upcoming developments at the nation’s top court. Join us here each week for a look at what’s happening on One First Street.
It’s almost Halloween, which is a special time at the U.S. Supreme Court. Who can forget 2014’s Ruth Baby Ginsburg? Or the time Justice Alito confessed that he enjoys the “trick” part of Halloween more than the “treat.”
And this year should be no different. Importantly, the high court kicks off its second oral argument session of the 2017 Term on Oct. 30… just in time for the festivities.
Light Load: Halloween isn’t technically a holiday. But the Supreme Court seems to be treating it that way. The court regularly hears between 10 to 12 cases each sitting. This sitting, though, it’s only seven. That’s due in part to a securities class action that settled just in the nick of time.
• “The high court was scheduled to hear arguments Nov. 6 in a case stemming from a New York City contract fraud and Leidos Inc.’s $500 million settlement with the city in 2012,” Bloomberg’s Greg Stohr “The case asked the court to clarify investors’ ability to sue companies for omitting information from shareholder reports.”
• Such settlements occasionally scuttle Supreme Court cases—especially in business cases, where the parties are only in the Supreme Court “because substantial money and/or important business practices are at stake,” Robert Loeb, of Orrick, Herrington & Sutcliffe LLP, Washington, told Bloomberg Law.
• Because the court turns away about 99 percent of the cases that it’s asked to consider, “the party that won below will be a lot more willing to think they are at risk” after a cert. grant, Thomas C. Goldstein, of Goldstein and Russell P.C., Bethesda, Md., told Bloomberg Law. So the party that won below is “way more likely to settle,” after the Supreme Court steps in, Goldstein said.
SCOTUS Win Streak: There’s still plenty to see during oral arguments, though. In particular, Jenner & Block’s Adam Unikowsky will attempt to continue his undefeated streak at the high court.
• The 36-year old partner seeks to continue his 5-0 streak Nov. 1 when he argues in Artis v. District of Columbia, Bloomberg Law reporter Madison Alder reports (subscription required).
• The case “explores how a statute of limitations extension should be calculated under federal law.”
Technically Speaking: The Supreme Court hears between two and three bankruptcy cases each term. This term is no different.
• Of the seven cases being argued next sitting, two are bankruptcy cases.
• The high court will examine the appropriate deference appellate courts must give to bankruptcy courts in S. Bank National Association v. Village of Lakeridge.
• The court will decide the scope of bankruptcy safe-harbors in Merit Management Group v. FTI Consulting.
• Supreme Court’s approach to bankruptcy cases is very technical, despite the fact that none of the justices are specialists in the area.
• Although bankruptcy filings are down nationwide, don’t expect a drop in bankruptcy cases at the high court anytime soon, Bloomberg Law’s Diane Davis says.
Slow and Unsteady: If the justices dressed up for Halloween, I’d like to imagine they would be tortoises—the court’s unofficial mascot—given how slow the court works. The Supreme Court’s new transcription service is no exception.
• The court doesn’t live-stream its oral arguments. Instead, it provides a transcript of the argument later that same day.
• The switch wasn’t seamless. Transcripts of the day’s first argument typically go up on the Supreme Court’s website around 1 p.m., Eastern Time. Heritage had been taking several hours longer. And they were peppered with embarrassing typos.
• Heritage even got the name of one of the justices wrong in in Jesner v. Arab Bank PLC.
• Courtwatchers (and Supreme Court beat reporters) will be waiting to see if the new reporting service has upped its game in time for the next oral argument session.
Unfinished Business: Oral arguments aren’t the only business happening at the Supreme Court next week. The court could take up a case regarding what you can wear on another red letter day … election day.
• The justices will confer whether to hear 16-1435, Minnesota Voters Alliance v. Mansky. A lower court upheld Minnesota’s prohibition on wearing political attire at polling places.
A Tea Party-affiliated group challenges the law on First Amendment grounds, saying the law chills speech because it prevents its “members from wearing Tea Party logos at polling places,” according to Bloomberg Law reporter Melissa Heelan Stanzione (subscription required).
• SCOTUS may also decide to take up a trio of abortion-related cases, including No. 16-1140, National Institute of Family & Life Advocates v. Becerra.
Religiously affiliated pregnancy centers are challenging California’s law requiring them to post a notice that they don’t provide abortion or birth control services, according to Bloomberg Law’s Matthew Loughran (subscription required).
The law was passed “to address the rise of ‘crisis pregnancy centers,’ which the Legislature characterized as unlicensed and licensed clinics that intentionally ‘discourage or prevent women from seeking abortions.’”
The centers say the law runs afoul of the First Amendment’s protection of free speech and free religion.
Mysterious Disappearance: Adam Feldman details the “dearth” of female attorneys arguing at the Supreme Court at Empirical SCOTUS.
• “Female attorneys have a long history arguing before the Supreme Court dating back to Belva Lockwood’s argument in 1880,” Feldman says.
• “While women are entering law schools at a rate approximately equal to that of men, this distribution has not made its way to Supreme Court oral advocacy.”
• “If we look at all attorneys that have argued before the Court between the 2012 and 2016 Supreme Court terms (a total of 864 attorney arguments), females make up between 17% and 18% of the attorneys.”
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