Week Ahead at SCOTUS: Wrapping Up 2017

The U.S. Supreme Court heard its final oral arguments of 2017 last week and is heading into a four-week break. But first… one more conference and an order about DREAMers.

  • It’s All About the Grants: The justices had their final calendar year 2017 conference on Dec. 8. That same day they added seven (!) new cases to the docket. Among the highlights are:
    • Benisek v. Lamone, a partisan gerrymandering case out of Maryland.
      • If this sounds familiar, that’s because the court is considering another partisan gerrymandering case out of Wisconsin, Gill v. Whitford.
      • The high court heard oral argument in Gill in October, but the opinion may not come out until June.
      • Plaintiffs in the Maryland case are Republicans who say they were unfairly disadvantaged during the redistricting process.
    • United States v. Sanchez-Gomez, in which an appellate court found a district court’s policy of routinely shackling all pretrial detainees in the courtroom unconstitutional.
      • The question for the justices isn’t about the constitutionality of the practice, however. Instead, it’s a procedural challenge to the appellate court’s consideration of the question.
    • Hughes v. United States, which attempts to sort out what opinion controls when the Supreme Court splits 4-1-4.
  • Busy Day Also Dec. 8, the Supreme Court handed the Trump administration a win in cases challenging the administration’s cancellation of the popular Deferred Action for Childhood Arrivals program.
    • The program has deferred removal for nearly 800,000 immigrants who entered the country illegally when they were children.
    • A lower court ordered the Trump administration to produce additional records in that case. The administration’s original production contained just “14 documents totaling 256 pages—192 of them copies of court opinions from the preliminary injunction litigation over a different program,” according to the challengers.
    • The Trump administration asked the court to halt that production.
    • In a 5-4 order, the Supreme Court agreed.
    • The case will now continue in the lower courts, but seems certain to end up back at the high court.
  • More to Consider: The justices will issue their last scheduled order list on Dec. 11.
    • We aren’t likely to hear about the potentially game-changing death penalty challenge Hidalgo v. Arizona.
      • On Dec. 6, the court requested the record from the lower court.
      • That suggests that at least one justice is taking a very close look at this case, and potentially writing some kind of decision. Whether it’s a summary reversal, dissent from the denial of certiorari, or something else, we likely won’t know until after the court receives, and reviews, the record.
    • We may hear about the closely watched Evans v. Georgia Regional Hospital.
      • The case centers on the meaning of “sex discrimination” in Title VII of the Civil Rights Act of 1964.
      • A lower court said sex discrimination doesn’t include sexual orientation discrimination.
      • There’s a circuit split on that question, though, making this case—or one like it—a good candidate for review.
    • No SCOTUS Opinions: The Supreme Court won’t be issuing any more opinions in 2017.
      • The Supreme Court has issued only one opinion in an argued case so far this term. And that was in early November.
      • According to the AP’s Mark Sherman, that’s a “record, pre-Christmas low in recent years.”
      • Last year by this time, the court had issued five opinions in argued cases.
      • The next opportunity for opinions is Jan. 8.
  • Hello 2018: Finally, the court will take a four-week break before it resumes oral arguments on 8.
    • That sitting kicks offs of with two rare original jurisdiction cases, which pit several cases against one another over precious water resources.
    • Later that week, the court will finally hear a challenge to Ohio’s voter purge procedures, Husted v. A. Philip Randolph Institute. The case was originally scheduled for November, but was taken off the calendar due to a last-minute attorney swap.

See you in 2018!