October 2017

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering.  I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available.  (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018.  The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22.  So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses.  The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges.  In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act.  Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.”  Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term.  In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts.  The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role.  A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC.  The first involves probable cause and qualified immunity.  Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful.  In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house.  Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet.  Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission.  They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity.  The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws.  Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol.  He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited.  A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car.  He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims.  He then appealed, but the appellate court held the guilty plea waived his right to appeal.  The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?”  This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii.  I don’t have anything to add to the extensive commentary on these cases….  Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives.  It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.”  I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act.  The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas.  The Court has accept cert. on the question of whether corporations can be sued under the ATCA.  Scotusblog has some good background.

February cases

This month, the Court will consider a wrongful death claim involving a cross-border shooting by a Border Patrol agent, arbitration agreements in the context of alleged wrongful death of nursing home residents, and sex offender laws in immigration and free speech contexts.

Tuesday, Feb 21

A tragic case made more politically interesting in the context of current US-Mexico tensions is up first today, in Hernández v. Mesa. A 15 year-old boy was shot and killed by a US Border Patrol agent.  The agent fired from US territory, but the boy was in Mexico.  That much is undisputed; the parents say he was playing a game that involved touching the fence and running back, while the agent says this was part of an illegal border crossing that involved a group throwing rocks at agents. But the Court will decide only whether this dispute can get as far as trial:  does the 4th Amendment apply to use of force under these circumstances, and can the parents bring a suit like this?  A through description of all the legal issues is available here.

McLane Co v. EEOC is a more procedural issue without much suspense.  Federal courts enforce or quash (cancel) subpoenas issued by federal agencies like the EEOC.  All but one Circuit court decides based on whether the EEOC abused its discretion (which is deferential toward the agency), but the 9th does so based on de novo review (its own original determination, with no deference to the agency). Interesting arguments on both sides are described here.

Wednesday, Feb 22

The Court hears only one case today, involving arbitration agreements, which have been the subject of much controversy recently.  Historically, the Court has held that the Federal Arbitration Act serves as a very serious obstacle to any state laws that would restrict the enforceability of arbitration agreements.  Kindred Nursing Centers v. Clark involves deceased residents of a nursing home whose “principals” (individuals who held their power of attorney) sued the home for for wrongful death, personal injury, and violations of certain Kentucky laws protecting nursing home residents.  The home sought to dismiss the cases based on the mandatory arbitration agreement those principles had signed on behalf of the residents, but the Kentucky Supreme Court held that they lacked authority to enter the arbitration agreement because the right to a jury trial and to appeal to higher courts are fundamental constitutional rights that cannot be waived absent express authority to do so. A thorough discussion of the case is available here.

Monday, February 27

The Court takes on sex offender laws in two cases today, in immigration and free speech contexts.

The question in Esquivel-Quintana v. Sessions is: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

In Packingham v. North Carolina, the issue is: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”