This is the first week of the Court’s October Term 2015. On Thursday, the Court added thirteen new cases to its merits docket; Lyle Denniston covered the orders for this blog. We expect additional orders from the September 28 Conference on Monday morning at 9:30 a.m. The full list of scheduled arguments for the October sitting is here. On Friday, the Justices will meet for their October 9 Conference.
The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not? The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation. But unless I misunderstand it, the general question is as old as the common law.
If past practice tells us anything, the Court’s orders yesterday have disclosed to us something like sixty to sixty-five percent of this Term’s docket. Presumably many observers are pleased to see so many cases in the areas that interest them most. But what is most notable to me is the prominent paucity of issues in the areas of bankruptcy and intellectual property, staples of the Court’s recent docket: among the forty cases set for argument in October Term 2015, there is not yet a single case in either of those areas.
If there is a case on the October calendar in which you might expect the Justices to “phone it in,” it must be DIRECTV v. Imburgia. If I start by telling you that DIRECTV includes an arbitration clause in agreements with its customers and that the California Court of Appeal in this case declined to order arbitration, it would be understandable if you immediately stopped reading and clicked back to look for another post: how far do you have to read to expect that my post is going to tell you that the Court is likely to reverse the California court and hold the agreement enforceable?
Yesterday the Court issued grants from its September 28 Conference, adding thirteen new cases to its docket for the upcoming Term. Lyle Denniston covered the orders for this blog, while at PrawfsBlawg Howard Wasserman discusses the grant in Bank Markazi v. Peterson, in which the Court will consider the constitutionality of a federal statute that orders a federal court to require the surrender of the bank’s assets to pay victims of terrorism. And Robin Bravender and Jeremy Jacobs of Greenwire report on the grant in “an Alaska moose hunter’s challenge to a federal ban on using hovercraft on National Park Service waterways.” Continue reading »
Campbell-Ewald Co. v. Gomez is one of those cases in which the Court confronts an issue of great significance, but well might avoid the issue in the course of decision. The issue is so simple it is surprising there is no answer: if a defendant offers to pay the plaintiff everything the plaintiff could get if the plaintiff wins, does the plaintiff have to take “yes” for an answer? Phrased that way, you might think “yes” is the obvious response. But if that is correct, then class action defendants have an easy way to avoid class certification by simply picking off the named plaintiffs as they appear. Moreover, as if that were not enough to fill the argument slot, the same case also will consider the extent to which the government’s broad sovereign immunity extends to government contractors, the so-called “derivative sovereign immunity” doctrine.
Next Monday the Justices return to the bench to hear oral arguments in the opening session of their new Term. First up is a case brought by a California woman who lost both of her legs in a train accident in Austria and is now suing the railroad, which is owned by the Austrian government. The question before the Court is whether her lawsuit can proceed at all, or whether the railroad instead is entitled to immunity under a 1976 law that bars most lawsuits against foreign countries. In today’s interconnected world, the Court’s answer could have significant ripple effects for both the U.S.’s relations with other countries and U.S. citizens who travel overseas.
Taking on a new case that tests Congress’s power over the courts, but also gets into a sensitive question of U.S.-Iran dealings, the Supreme Court agreed on Thursday to review a legislative mandate on legal rights at issue in a case filed by victims of terrorism.
The case filed by Iran’s central bank, Bank Markazi v. Peterson, was one of thirteen new cases that the Justices accepted for review in the new Term that formally opens next Monday. It is likely that the Court will hear oral arguments in the new cases in January and February.
Other newly accepted cases will deal with the duty of a state judge to stay out of a death penalty case after having pursued it previously as a prosecutor, a criminal case that tests the constitutional status of Puerto Rico (a U.S. commonwealth), and a return to an issue the Court has considered before: the power of U.S. courts to decide claims of business misconduct that occurred overseas.
With the Court slated to resume oral arguments next Monday, previews of the upcoming Term continue. Writing for Education Week, Mark Walsh looks ahead at the Term from an education perspective, while Cornell University Law School’s Legal Information Institute has posted its previews for the cases slated for argument in the October sitting.
Yesterday the U.S. Court of Appeals for the Ninth Circuit ruled that the National Collegiate Athletic Association’s complete ban on pay for students who play football and basketball at Division I schools violates federal antitrust law, setting the stage for a possible ruling on the issue by the Supreme Court. Lyle Denniston reported on the case for this blog, with other coverage coming from Howard Mintz of the San Jose Mercury News. Continue reading »
On October 7, the Bar Association of San Francisco will host a preview on the upcoming Supreme Court Term. Speakers will include Rory Little, Jane Schacter, Fred Smith, and Benjamin Horwich. More information about the event, which will be hosted at the BASF’s Conference Center in San Francisco, is available on its website.