Week Ahead at SCOTUS: Last Call for Cases

The Supreme Court issued several grants Jan. 12, which are likely to be the last cases argued this term. Any additional grants will probably be put off until next term, which starts in October. But before we get to those…

¯\_(ツ)_/¯: The Supreme Court announced that it won’t issue opinions in argued cases this week, extending its months-long drought.

  • The court issued the only opinion in an argued case so far this term back in November.
  • The dearth of opinions has already set a record for the slowest pace the court has released opinions, according to Adam Feldman of Empirical SCOTUS.
  • The “last time the Court released its second orally argued decision in January of a year was during the 1868 term (the second opinion was issued on January 11, 1869),” Feldman says.

Amicus Anomaly: The court takes a break on Monday, Jan. 15 to celebrate Martin Luther King Day, but returns Jan. 16 to hear oral arguments.

  • In Dalmazzi v. United States, the court will examine the limits of military officers serving in civilian government positions.
    • “The issue in question centers around an 1870 statutethat prohibits military officers from holding a civilian office in the government that would require election to the post or a presidential appointment,” this Bloomberg Law preview says (subscription required).
    • The case could affect “the military commission system in Guantanamo,” according to a military law scholar.
    • UVA professorAditya Bamzai will argue alongside the parties after the court granted his request to argue as an amicus.
      • That’s the first time (subscription required) the court has granted a law professor’s request to argue as a “friend of the court” since at least the 1940s.
    • In McCoy v. Louisiana, the court will consider what happens when a defense attorney admits guilt over his client’s objection, resulting in a death sentence for the triple-homicide defendant.
      • The facts seem extreme, but a previous case could make it tough for McCoy to prevail. In 2004, the high court unanimously said defense counsel doesn’t need the client’s explicit permission to concede guilt. Will the defendant’s affirmative veto be enough to change the outcome?
      • Get caught up on McCoy with this Cases and Controversies podcast.
    • Encino Motorcars v. Navarro gets its second trip to the high court.
      • The present controversy “centers on whether service advisers at a California Mercedes-Benz dealer are entitled to overtime wages,” this Bloomberg Law preview
      • The justices were asked to resolve that question in 2016, but the then-shorthanded court sent the case back to the lower court without doing so.
      • Now the case is back, and the parties want an answer.
    • In Hall v. Hall, the court will consider whether certain rules applicable to multidistrict litigation also apply to cases consolidated in a single district.
      • In 2015, the Supreme Court “held that final judgment in single MDL case triggers appeal clock for that case,” the Bloomberg Law preview says (subscription required).
      • That case left open whether that’s true for cases consolidated in a single district.

Final Cases: The court had a lot on its plate for its Jan. 12 private conference. That’s likely because this is the last chance for cases to be granted and still be heard this term without expediting briefing.

  • The court granted the following cases Jan. 12:
    • The Texas redistricting cases.
      • A special 3-judge district court panel struck down the state’s Congressional and state House maps, finding that they were drafted to intentionally discriminate against minorities.
      • An early procedural stay that split the court 5-4 suggests that the justices will be divided on the merits.
      • The cases are:
      • Lucia v. SEC, an appointments clause challenge to the Securities and Exchange Commission’s administration law judges.
      • South Dakota v. Wayfair, Inc., seeking to overturn the longtime prohibition on states collecting sales tax for online purchases from out-of-state businesses.
      • Animal Science Products v. Hebei Welcome Pharmaceutical Co., regarding the proper standard of review for a foreign sovereign’s interpretation of its own law.
      • Lagos v. United States, concerning the Mandatory Victims Restitution Act funds for costs of private investigation.
      • Pereira v. Sessions, involving the triggering of the Board of Immigration Appeals’s “stop-time rule.”
      • Wisconsin Central Ltd. v. United States, asking if stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act.
      • WesternGeco LLC v. ION Geophysical Corp., on the availability of patent damages for lost profits arising from foreign prohibited combinations.
      • Lamar, Archer & Cofrin, LLP v. Appling, a bankruptcy case involving fraudulent statements “respecting the debtor’s … financial condition.”
      • Washington v. United States, involving the state’s salmon-blocking culverts, which are inhibiting off-reservation fishing for a nearby Native American tribe.
      • Chavez-Meza v. United States, examining what court must do to grant a proportional sentence reduction.
    • We could get orders Jan. 16 in the remaining cases that the justices considered at their Jan. 12 conference, including:
      • Trump v. Hawaii, concerning the latest version of President Trump’s controversial travel ban. The Ninth Circuit struck down that version, saying the President once again exceeded his authority under the Immigration and Nationality Act.
        • It would be the second trip to the high court for the ban this term.
      • Hargan v. Garza, involving an immigrant teen’s attempt to get an abortion over the federal government’s objection.
        • The government says releasing the minor from immigration custody to get an abortion would make it complicit in the procedure.
        • Though the teen at the heart of the previous dispute already obtained an abortion, the case continues as a class action challenging the Trump administration’s nationwide policy.
        • The government wants that potentially bad precedent nixed (subscription required) so that it can fight the class action with a clean slate.
      • Hidalgo v. Arizona, challenging the constitutionality of the death penalty generally and Arizona’s implementation of it specifically.
      • Garco Construction, Inc. v. Speer, requesting that Seminole Rock and Auer deference be overruled. These doctrines require a great deal of deference from courts to agency interpretations of their own statutes.
      • Shepard v. Florida Judicial Qualifications Commission challenging Florida’s rule prohibiting judicial candidates from knowingly misrepresenting facts and requiring them to act with integrity. The candidate here used a newspaper endorsement from an earlier election endorsing her campaign when the paper actually endorsed her opponent this time around.
      • Kisela v. Hughes, which held that a University of Arizona officer who shot the plaintiff four times was entitled to qualified immunity.
      • South Carolina Department of Corrections v. Booker, asking if a prisoner has the right to be free from retaliation for filing a grievance.
      • Silver v. United States, New York Democrat Sheldon Silver’s request to clarify honest services fraud and extortion law.
      • Buxton v Kurtinitis, holding that the First Amendment doesn’t protect an applicant turned away from a community college program because he expressed his religious beliefs in the interview.
      • TransPerfect Global, Inc. v Matal , asking if the PTO’s “covered business method review” is unconstitutional.
      • L. v. Smith, asking if schools must consider a student’s cultural and religious background when developing an “individualized educational plan” under the Individuals with Disabilities Education Act.