October 2018 term opening (& more)

First Monday brings environmental law and age discrimination cases, with other cases this month involving sex offender registration, execution of people with mental disabilities, arbitration agreements, detention of noncitizens, and liability for Navy sailors’ exposure to asbestos.

I also want to highlight a few cases that will be heard sometime this term but have not yet been set for argument.  I’ll have posts on each in the weeks before the argument.

  • Gamble v. United States asks “Whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”  This is the doctrine that allows the federal government to charge someone even if they have been tried (and even if acquitted) for the same conduct in a state trial (assuming the same conduct is illegal under both federal and state law).  This could have extremely far-reaching implications.
  • Timbs v. Indiana: “Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.”  So odd that this has not been resolved by now!
  • Nieves v. Bartlett: “Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.”  Ie, do you have a case if you did something illegal but it’s clear that the real reason the police arrested you was because they didn’t like the content of your speech?

And outside the Supreme Court (for now!), the climate change lawsuit brought by young people against the EPA has survived the initial efforts to dismiss the case and is worth watching.

Now, on to the first two weeks of the term:

Monday, October 1

The first case, Weyerhaeuser v. US Fish & Wildlife Service, involves the Endangered Species Act and deference to administrative agency interpretations.  US Fish and Wildlife designated land owned by Weyerhaeuser as critical habitat for the dusky gopher frog.  The frog has not actually been on that land for decades, but the land could be made suitable for them, and FWS interpreted the ESA as allowing such land to be considered critical habitat, even if not currently habitable.  In siding against Weyerhaeuser, the Fifth Circuit held that the agency’s interpretation was entitled to deference.  That’s an important concept in administrative law and likely will be a focus of the argument, so it’s worth reading the Circuit Opinion as well as this general overview.

Next is Mount Lemmon Fire District v. Guido, interpreting the Age Discrimination in Employment Act. ADEA defines covered employers to mean “a person engaged in an industry affecting commerce who has twenty or more employees . . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U.S.C. § 630(b).  The 9th Circuit read the two sentences as separate, so even small political entities (like the fire district here) are covered.  Other Circuits have held the opposite, and the Court has accepted cert. to resolve the “circuit split.” It should be an interesting argument; before attending, take a look at an amicus brief from the employee side and another from the government’s side.

Tuesday, October 2

Two criminal law cases today.  The first, Gundy v. United States, involves the Sexual Offender Registration and Notification Act and the nondelegation doctrine.  Nondelegation holds that Congress may not grant too much lawmaking authority to the Executive branch.  Congress routinely grants administrative agencies and officers considerable powers to make regulations, but it must at least spell out an “intelligible principle” that the Executive must follow (and that courts can require them to follow) in carrying out that discretion.  The nondelegation doctrine struggles to allow for the complex administrative state we have without completely abandoning the system of checks and balances.  In this case, SORNA authorizes the Attorney General to decide the circumstances under which the law would have retroactive effect.  Take a look at the amicus brief from a group of legal scholars.

Next up is a death penalty case, in the context of a mental disability that leaves the prisoner with no memory of committing the offense. See the interesting discussion from the American Psychological Association.  The official legal question presented in Madison v. Alabama is:

Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Wednesday, October 3

The first case today, Knick v. Township of Scott, Pennsylvania, is not one that I would generally recommend for a casual observer.  It involves the takings clause, which always gets some interest, but this particular case has some procedural complications and is only addressing the “exhaustion of remedies” issue.  But if you’re interested in it, or going for the second case, then read up on it here.

Arbitration agreements have become increasingly common, and in the past several years the Supreme Court has been holding that the Federal Arbitration Act (FAA) preempts a wide array of state law doctrines that had limited their enforceability. Generally, if someone files a lawsuit but there’s a valid arbitration agreement, then the FAA requires the court to dismiss the case and send the dispute to arbitration.  Today the Court takes on “arbitrability” — who decides if there is a valid arbitration agreement?  Some arbitration agreements require that an arbitrator decide all questions, including whether the arbitration agreement covers the particular dispute.  New Prime Inc. v. Oliveira involves transportation workers, and the FAA specifically exempts transportation workers, so the lower courts held that they did not need to consider those recent FAA preemption cases.  But the Court has granted cert. on:

(1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

This one will be heavily watched by business and consumer and employee advocates. Take a look at the Public Citizen overview and its amicus brief.  Also note that the Court has accepted cert. in two other arbitration cases this term:  Lamps Plus and Henry Schein will be argued Oct 29; more on them to come in a later post.

[the Court does not hear arguments on Columbus Day]

Tuesday, October 9

All three cases today involve statutory interpretation of terms in the Armed Career Criminal Act.  Stokeling v. United States will be argued first and separately, and involves the requirement of enhanced penalties for people with prior “violence felonies.”  Stokeling argues that his prior robbery conviction did not involve a use of force sufficient to constitute violence, but precedent has required a “categorical approach” to deciding if the prior conviction was for a crime that is a violent felony.  US v. Sims and US v. Stitt are consolidated for one hour total and both involve the same question: “Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act.”

Wednesday, October 10

Nielsen v. Preap is about detention of noncitizens who have been convicted of a crime. Ballotpedia offers a useful summary; follow the link for more and key documents:

Under the mandatory detention provision of the Immigration and Naturalization Act, the government is required to detain noncitizen U.S. residents who were convicted of certain crimes “when…released” from criminal custody. The government had relied on this provision to begin detaining lawful permanent residents years after their release from criminal custody. Three filed suit, alleging that because they were not detained immediately when they were released from criminal custody, the government could not rely on the mandatory detention provision to hold them without bond. The Ninth Circuit agreed, ruling that the mandatory detention provision only applies to noncitizens who are detained by immigration authorities promptly following their release from criminal custody.

The second case today, Air and Liquid Systems Corp. v. Devries, raises some technical jurisdictional and common law issues, but comes in the context of wrongful death claims by widows of Navy sailors who died from cancer after exposure to asbestos in the course of their service.  They brought suit against the manufacturers of products that contained asbestos.  There has been a lot of asbestos litigation over the years, resulting in development of various liability doctrines. But because of the context, the Court has accepted cert. on something new: “Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.”

Monday, October 30

Most of the cases this week are focused on technical issues that would not be terribly interesting or easily accessible to most casual observers.  The exception if the first case on Monday, Ayestas v. Davis.

In federal death penalty cases, the law requires that when counsel is appointed for indigent defendants, there also be funding for “investigative, expert, or other services [that] are reasonably necessary for the representation.”  18 USC § 3599(f).  This case is a habeas case — an appeal to the federal courts of a verdict in state court — and the Fifth Circuit has interpreted “reasonably necessary” to mean that the defendant must show that there is a “substantial need” for the investigation by presenting “substantiated argument, not speculation, about what the prior counsel did or omitted doing.”  The concern is that this standard requires defense counsel to prove what an investigation would uncover before there can be an investigation.  A very useful article about the case is on Scotusblog.  The Court has accepted cert. on “whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.”

The second case today, Wilson v. Sellers, is also a federal death penalty case, but the question is more arcane.  The Antiterrorism and Effective Death Penalty Act (AEDPA) creates high barriers to federal courts overturning state court sentences of death.  A key concept is deference to adjudications “on the merits.”  Sometimes, various appeals in the state courts will result in some opinions that provide a full reasoning and others that offer only a summary affirmance of the decision.  Courts historically have “looked through” one-sentence decisions to the last full opinion as being the one for consideration as a decision on the merits, but a 2011 Supreme Court case seemed to hold that even summary decisions are “on the merits” in some circumstances.  This is an important issue, but very tied up in civil procedure matters that can be hard to follow.  If you plan to attend, read this article and, if you have time, a couple of amicus briefs — intriguingly, a group of retired state supreme court justices are on the opposite side from a group of state governments.

[Looking ahead, there is a voting rights case on November 8,* a Dodd-Frank whistleblower case on Nov 28, NCAA cases on Dec 4, and the much-anticipated Masterpiece Cakeshop case on Dec 5.  I will provide full descriptions of these cases in various posts as the oral argument dates for each get closer.]

* The voting rights case has been removed from the docket due to a medical issue with one of the lawyers who was going to argue the case.  We expect it to be argued early in 2018.

April Cases

There is a major religion case and an interesting criminal procedure case tomorrow, and a death penalty case on Monday.  Otherwise, this and next week are mostly taken up with cases that involve hard-to-follow matters of procedure and specialized areas of law, so with the exception of the cases below, this is generally not the best month for the casual observer.

Wednesday, April 19

The competing religion clauses are once again up for examination and attempt at reconciliation in the first case this morning, Trinity Lutheran v. Comer.  The First Amendment prohibits laws “respecting an establishment of religion, or prohibiting the free exercise thereof.”  In order to avoid violating the first clause, Missouri prohibits public money from being disbursed “directly or indirectly in aid of any church, sect, or denomination of religion.” In this case, that meant a church-owned playground could not be reimbursed for refurbishing its playground with a rubber surface made from recycled tires under a program that is available to non-religious nonprofit organizations.  The church sued, claiming this effort to comply with the first religion clause violates the second religion clause, by singling out churches for less favorable treatment compared with all other nonprofits. There is a web of not-always-consistent legal doctrines and tests for the constitutionality of regulations that impact religion, developed in the Supreme Court over the past several decades. Intriguingly, the state is emphasizing the text of the Constitution, noting that refusing to give money for a playground renovation in no way prohibits exercise of religion.  The argument is even more intriguing given that the briefing predated the nomination of the textualist, but generally pro-religion, now-Justice Gorsuch. A full overview of the case and arguments is available here.

The second case today involves appellate review of “errors” in a criminal trial.  Some types of error require a showing of prejudice — to get a new trial, it’s not enough that the trial judge did the wrong thing, the defendant has to show that the error likely impacted the outcome of the trial.  Other types of errors are “structural,” undermining the integrity of the proceedings as a whole, and are deemed always and necessarily prejudicial.  In Weaver v. Massachusetts, the judge closed the courtroom during jury selection, denying entry to the defendant’s mother and others.  By all accounts, this was simply because so many potential jurors were called, in an effort to find enough impartial jurors, that the room was full (although some potential jurors could simply have been told to wait outside).  Nevertheless, it is fundamental that the Constitution requires public trials (except under very unusual circumstances) and this was structural error, requiring no special showing of prejudice to warrant reversal and a new trial.  But the defendant’s lawyer failed to object to the closing of the courtroom, and ineffective assistance of counsel is a type of error that requires a showing of prejudice.  So which rule applies, and does the defendant need to show prejudice in order to get a new trial?

Monday, April 24

First up is a death penalty case involving the right to independent psychological experts.  In McWilliams v. Dunn, the judge ordered psychological examination of the defendant, which was first conducted by a Department of Corrections doctor who recommended evaluation by an independent expert.  The report by an independent expert was not delivered until the day before sentencing, and the judge denied a request for time for the defense counsel to review the report with an expert.  The Court has granted cert on the question of whether this violates the right (declared in other cases) to “meaningful expert assistance.”

The second case today is a complex issue involving the right to effective assistance of counsel.  The Court has held that the constitutional right to counsel requires effective assistance at trial and on direct appeals, but not during discretionary or collateral post-conviction proceedings (like requests to reduce the sentence for reasons other than legal error at trial). However, some states require ineffective assistance claims to be raised in collateral proceedings, and difficult issues arise when claims are “nested” among actions by counsel in various proceedings.  It’s a complex area of criminal appellate law, and the argument will not be easy to follow for the casual observer.  If you plan to attend, start here and follow the links.

[April 25 & 26:  Tuesday cases and the first cases on Wednesday involve technical FDA and civil procedure cases, which I wouldn’t recommend for a casual observer.  The second hour on Wednesday involves denaturalization so may be of some interest, although it too is a relatively technical issue.]

 

October cases

First Monday is October 3 and opens the 2016-17 session of the Court, but this year Monday is a “non-argument day.”  In the first two weeks, the Court will hear cases concerning racism and the death penalty, an allegation of extreme police and prosecutorial misconduct, and racist jurors who do not reveal their racism until after the jury has been selected and started private deliberations.

Tuesday, October 4

Two relatively technical cases are scheduled for this first argument day.  Neither will be particularly accessible to a casual observer, but may be of interest to some.

Bravo-Fernandez v. US involves the “double jeopardy clause” and the doctrine of “collateral estoppel.”  The first trial resulted in jury acquittal on some counts and conviction on other counts, but the conviction was later overturned due to erroneous instructions to the jurors.  The government wants to reprosecute the overturned convictions, but the defendant says those counts, properly understood and with correct jury instructions, are logically inconsistent with the finding of acquittal on the other counts in the first trial. SCOTUSblog offers a useful overview.

Shaw v. US asks whether a bank fraud statute criminalizing a “scheme to defraud a financial institution” requires proof of “a specific intent not only to deceive, but also to cheat, a bank.”  The scheme is at least an interesting read.

Wednesday, October 5

In the morning, the Court starts with an insider trading case, Salman v. United States.  It’s an unusual subject to come before the Court, and could be interesting just on the facts of the case.  Columbia Law School’s blog offers an interesting discussion.

The second morning argument involves racism and the death penalty, although the official question being considered involves procedure.  In Buck v. Davis, the defendant seeks a hearing on whether “his trial counsel was constitutionally ineffective for knowingly presenting an ‘expert’ who testified that petitioner was more likely to be dangerous in the future because he is Black.”  Wow….  See a full discussion of the case here.

Unusually, the Court has scheduled an afternoon session today.  The case, Manuel v. City of Joliet, asks whether malicious prosecution can be brought under the 4th Amendment and involves a really shocking set of allegations of misconduct.  Morning arguments close at noon and the courtroom will be cleared at that time, with afternoon sessions beginning at 1:00.  Since afternoon sessions are so unusual, it’s hard to know what the crowds will be like, but it may well be easier to get in for this argument.

[The Court is closed Oct. 10 for Columbus Day]

Tuesday, October 11

The first case, Samsung Electronics v. Apple, involves damages in a patent infringement case and will be rather technical and involve a specialized area of law.  But the second case, Pena-Rodriguez v. Colorado, is an unusual examination of what happened during jury deliberations.  Ordinarily, juror comments are kept secret absent extreme misconduct.  In this case, it is alleged that one of the jurors made racist comments that would give reason to be believe the individual should have been excluded from juror service (but, obviously, this racism did not come to light during juror selection).  The Court has accepted cert. on the question of whether the usual veil of secrecy around what happens during deliberations “constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.” A useful overview is offered here.

There is another unusual afternoon argument today, but involving technical appeal procedure.  And there are no arguments scheduled for Wednesday this week.

Feb 29 – March 2 cases

One of the most anticipated arguments of the term–involving abortion rights–is scheduled for Wednesday.   The Court also takes up gun control for persons convicted of domestic violence and the death penalty on Monday.

Monday, February 29

The first case will be viewed as a gun control issue in the context of domestic violence, but involves questions of Congressional intent where a federal law is triggered by a state law conviction.  Federal law prohibits firearm possession by someone who has been previously convicted of a crime of domestic violence.  Such a criminal act generally evokes intentional conduct, but 34 states have reckless assault laws.  The question is whether Congress intended for the federal prohibition to extend to convictions for laws that required only reckless conduct. Full write-up of all the issues in Voisine v. US is here.

The second argument is in a death penalty case.  The official question presented in Williams v. Pennsylvania describes the case well:  Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday, March 1

The cases today are important but fairly limited in scope.  Nichols v. US asks whether federal law requires a sex offender to update his registration in the state where he was convicted when he resides outside the US.  Husky International Electronics v. Ritz involves the “actual fraud” bar to discharging debts in bankruptcy.

Wednesday, March 2 – abortion

It has been eight years since the Supreme Court has directly taken on questions relating to laws that restrict access to abortion.  States may regulate abortion providers, just as they may regulate other medical practices, but laws that place an “undue burden” on a woman’s ability to access abortion are unconstitutional.  Regulations that improve safely and health typically survive the “undue burden” test, but in this case, providers argue that the restrictions Texas put into place do not actually enhance health and safety, despite the state’s claimed purposes.  The Court has accepted cert on the question of whether the Fifth Circuit erred by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.”  Linda Greenhouse has co-authored a useful overview of this case and the history of the Court’s approaches to abortion rights and restrictions.

This case will draw a huge crowd.  It will be worth going to the Court just to see (or be part of) the crowds, demonstrations, and press conferences.  Demonstrations will start around 8:00am, may calm down a bit during the 10:00 argument and as people come and go, and then there will be more renewed demonstrations and press conferences when the arguing counsel exit the Court, probably around 11:30. If you want to get into the courtroom, you’ll need to get there very early; I wouldn’t be surprised if enough people camp out overnight to fill the court.  More than 80 amicus briefs have been filed, and the Solicitor General has been granted permission to participate in oral argument (in addition to counsel for the clinic and for Texas, the parties to this case).  I don’t see an order extending time for the argument, but no other case is scheduled for this day and I would expect the argument to run a little past the usual hour.

Speculation and Updates: Final decision days

Factual update and speculation…  To speculate first, Scalia offered an unhappy announcement of his dissent in the Affordable Care Act decision, which I think may provide a spoiler on the outcome of the Congressional redistricting case.  The ACA issue was statutory interpretation, and the majority read insurance exchanges “established by the state” to include ones established by the federal government in stead of the state.  To bash this, Scalia referenced the Constitution’s elections clause, and suggested that everyone would agree that Congress using its election-regulating power would not represent “the state legislature” acting (this is from memory, but that’s the gist).  So — if this means that the majority of the Court has agreed that a plain and un-nuanced reading of the elections clause is what commands, then I think the Independent Redistricting Commission is about to lose…  (See the bullets below if you need a refresher on what that case is about.)  It’s possible that he was forecasting another dissent in that case, but that’s not how I heard it.

Further speculation is that I expect we’ll know about that case tomorrow, with marriage on Monday.  I say this simply because it seemed like redistricting is almost ready, and because both Kennedy and Roberts had major opinions today so are a little less likely to have opinions tomorrow (and they seem the most likely authors of a marriage decision).  But that’s a bit of a stretch on my part, and I plan to be in the courtroom tomorrow in any event.

If you plan to attend, know that the public area was full today but the bar section was not.  There was also a fairly sizable set of demonstrators out front.  IMG_3439The Obamacare supporters were chanting (they cleverly had stickers to modify their large signs, depending on the outcome), and I saw people who looked like they had been ready for a decision in the marriage cases.  So even standing outside the courtroom can be a worthwhile experience on big decision days.

Now for objective information:  after today’s decisions, there are now 5 cases that were heard this term but are still undecided, with two announcement days left on the Court’s calendar–tomorrow and Monday.  So an updated recap of what remains (ordered by date of oral argument):

  • Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2).  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
  • Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25).  Important issues about what the EPA must consider when it regulates power plants.  Fuller analysis is here.
  • Criminal law, Johnson v. US (argued April 20):  (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
  • Same-sex marriage, Obergefell v. Hodges (argued April 28).  One of the most high-profile cases of the term.
  • Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

 

Final Decision Days – full recap

The Court has issued decisions in a number of cases since my last post, but several of the most highly anticipated cases still remain.  In addition to the typical Monday decision day, the last of which is next week (the 29th), the Court has added two decision day on Thursday and Friday this week.  There are now 7 cases that were heard this term but still undecided.  It’s possible that the Court will wrap up this week and not use Monday, but probably more likely that it will spread decisions over the 3 days that are currently on its calendar.

So an updated recap of what remains (ordered by date of oral argument):

  • Disparate impact under the Fair Housing Act, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (argued Jan 29).  The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.”  Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.”  But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic?  Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
    This case involves the allocation of tax credits and the impact on housing voucher programs.  Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers.  The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers.  Hence this suit, alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods.
  • Congressional redistricting by independent bodies, Arizona State Legislature v. Arizona Independent Redistricting Commission (argued March 2).  Frustrated with political gamesmanship and claims of racial discrimination in the process of drawing Congressional districts, voters in Arizona amended the state constitution to empower an independent body to draw the districts. Interestingly, Congressional districts are never mentioned in the U.S. Constitution, but it does state that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” (Art. I § 4.) Arizona’s legislature seized upon this to challenge the AIRC. Certainly, most people would not call the AIRC “the legislature,” but arguably the phrase refers to any body that makes statutory laws, and a state constitution can vest the legislative power in one body, in a bicameral system, or broken up among multiple bodies with specially defined legislative functions. In addition to the question of whether the Constitution permits the people of Arizona to prescribe this system, the Court must decide whether the legislature has standing to bring this case.
  • Affordable Care Act (“Obamacare”)King v. Burwell (argued March 4).  Its constitutionality is established, but there’s a question about whether the specific language in the law allows for tax subsidies for people who get their insurance through the federal exchange instead of through their state.  Useful details in this article.
  • Role of cost-benefit analyses in EPA regulations, [3 cases] v. EPA (argued March 25).  Important issues about what the EPA must consider when it regulates power plants.  Fuller analysis is here.
  • Criminal law, Johnson v. US (argued April 20):  (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.
  • Same-sex marriage, Obergefell v. Hodges (argued April 28).  One of the most high-profile cases of the term.
  • Death penalty drugs, Glossip v. Gross (argued April 29). A challenge to the “three-drug cocktail” commonly used in executions.

I’ve attended the last two decision days, walking into the Court at about 8:30.  Last Thursday, there was barely any public line at that time, but yesterday, the line was getting close to capacity.  With only three days left and so many significant cases, I would expect attendance to become more popular, so would suggest getting there as early as possible.  (The lawyer section has not been full, if you happen to be a member of the Supreme Court Bar.  But that may well change soon.)

Final Arguments of the Term

The last two weeks in April will close oral arguments for the term.  Along with the highly anticipated marriage equality cases, the Court will hear important criminal law cases, including the first death penalty case since 2007.

Several days in the closing weeks have only one case scheduled.

Monday, April 20

The Armed Career Criminal Act provides for stricter punishment for certain offenses, and the Court in Johnson v US will decide whether possession of a short-barreled shotgun constitutes a “violent felony” within the meaning of that Act.

Tuesday, April 21

In McFadden v US, the Court wades into the confusing area of regulating “designer drugs” developed by “underground chemists” — new substances that are not listed illegal drugs but produce the same effects, which Congress intended to regulate with the Controlled Substance Analogue Enforcement Act.  This case raises the issue of whether the government must prove that the defendant knew the drug he had was an analogue to a listed drug.

Wednesday, April 22

Another one-case day, this time involving the takings clause, which is relatively rarely addressed by the Court, although this specific dispute was before the Court last year on a preliminary standing issue.  It involves a Department of Agriculture program to stabilize raisin prices, which requires producers to surrender some of their supplies each year and be compensated when and if the government sells those raisins. The Court must decide whether this raises a Fifth Amendment issue (“taking” raisins rather than real property), and if so, whether the just compensation requirement can be satisfied with this sort of system.

Monday, April 27

Kingsley v. Hendrickson is an excessive force claim against jail officials.  The jury was instructed that for the prisoner to win, he would have to prove, among other things, that “Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff’s safety.”  The Court has accepted cert on the limited question of whether it should instead be enough to show that the officials “deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”

Tuesday, April 28 – marriage equality cases

In contrast to the one-case days, the Court has accepted cert. in four cases that raise questions related to marriage equality.  The cases are all consolidated for argument together, with a total of 2 1/2 hours allotted (but I wouldn’t be surprised if it runs a little long).

Unlike the procedural, technical, and somewhat peripheral issues that kept us from true resolution of the overall issue last time, the Court this year has accepted cert. on questions that cut to the core:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of- state?

A total of ninety minutes is allotted for oral argument on question 1.  A total of one hour is allotted for oral argument on question 2.

Much has been written about these cases (Scotusblog has a set of links to recent stories here) so I won’t duplicate efforts.  Suffice to say it will be a fascinating and historic day–get to the Court if you can, whether to try to make it in (which likely will require at least one overnight stay for the public line) or just to take in the demonstrations and press conferences out front.

Wednesday, April 29

Although the marriage cases are getting the bulk of public attention, an extremely important death penalty case is up for argument today, Glossip v. Gross.  The first question presented speaks for itself:

(1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious;

In addition to considering the constitutionality of this sort of lethal injection cocktail, the Court has also accepted cert. on two further questions, involving the technical requirements for blocking executions that may violate constitutional requirements:

(2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

No further arguments this term, but decisions will be announced on Mondays

The Court will continue to sit and announce decisions on Mondays through the end of June, or until it has announced decisions in all cases argued this term.  It may announce sittings on other days, as decisions get finalized.  These sessions, too, are open to the public.  We don’t know which cases will be issue on which days, but in recent years, the Court has announced its most high-profile cases in the last few seatings (which seems likely to recur, given the arguments being heard in the final week).  Even then, the lines were relatively short and it is very interesting to hear the Justices announce and summarize the decisions (and sometimes even more interesting when there’s a spirited dissent!).

Barring unusual circumstances requiring an expedited hearing, the Court will then go on recess and not hear any more arguments until the first Monday in October.