At its November 9, 2012 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of the Voting Rights Act of 1965, DNA collection from arrestees, the retroactive application of sentencing guidelines, the availability of sanctions for bad faith prosecutions, and arbitration agreements in class arbitration.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Delling v. Idaho

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the petitioner in this case, which is listed without regard to the likelihood that it will be granted.
Docket: 11-1515
Issue(s): Whether the Fourteenth or Eighth Amendment mandates the availability of an insanity defense in criminal cases, an issue this Court reserved in Clark v. Arizona, footnote 20.

Certiorari stage documents:

Nitro-Lift Technologies, L.L.C. v. Howard

Docket: 11-1377
Issue(s): Whether the Supreme Court of Oklahoma’s holding that a state court may review an underlying employment agreement based upon a state statute restricting covenants not to compete, notwithstanding the presence of a valid arbitration clause, is foreclosed by the Federal Arbitration Act and forty-five years of authority from this Court (particularly Buckeye Check Cashing v. Cardegna).

Certiorari stage documents:

Shaygan v. United States

Note: Goldstein & Russell, P.C., whose attorneys contribute to or work for this blog in various capacities, filed an amicus brief in support of the petitioner in this case.
Docket: 12-44
Issue(s): Whether the government is exempted as a matter of law for Hyde Amendment sanctions, 18 U.S.C. § 3006A, under the statute’s prohibition on “bad faith” prosecutions despite subjective malice in its filing decision and extensive and pervasive prosecutorial misconduct during the course of the litigation, merely because there was probable cause to support the filing of the indictment.

Certiorari stage documents:

Peugh v. United States (Granted )

Docket: 12-62
Issue(s): Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

Certiorari stage documents:

Nix v. Holder

Docket: 12-81
Issue(s): (1) Whether the 2006 version of Section 5 of the Voting Rights Act of 1965 exceeds Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments given that: (a) Congress retained a three-decade-old formula for selecting the jurisdictions that will be covered by the preclearance procedure; and (b) Congress significantly expanded the substantive standard for denying preclearance by abrogating two of the Court’s decisions that had narrowly construed it; (2) whether the Justice Department mooted petitioners’ appeal when it unilaterally purported to “reconsider” and “withdraw” the particular preclearance objection that was injuring petitioners, but failed to demonstrate that Section 5 could not reasonably be expected to injure petitioners in the future.

Certiorari stage documents:

Shelby County v. Holder (Granted )

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case.
Docket: 12-96
Issue(s): Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Certiorari stage documents:

American Express Co. v. Italian Colors Restaurant (Granted )

Docket: 12-133
Issue(s): Whether the Federal Arbitration Act permits courts, invoking the “federal substantive law of arbitrability,” to invalidate arbitration agreements on the ground that they do not permit class arbitration of a federal-law claim. (Sotomayor, J., recused)

Certiorari stage documents:

Bond v. United States (Granted )

Docket: 12-158
Issue(s): (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

Certiorari stage documents:

Thomas v. Madison

Docket: 12-308
Issue(s): Whether, when a state court cites and applies the correct standard from Batson v. Kentucky for assessing whether a petitioner has established a prima facie case of discrimination in jury selection, the court’s use of other terminology in a sentence addressing a distinct point render its Batson analysis “contrary to” this Court’s precedent for the purposes of determining whether the federal courts must defer to the state adjudication under 28 U.S.C. §2254(d)(1).

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Ben Cheng, Petitions to watch | Conference of November 9, 2012, SCOTUSblog (Nov. 7, 2012, 5:31 PM), http://www.scotusblog.com/2012/11/petitions-to-watch-conference-of-november-9-2012/