The official start to the Supreme Court’s new term will come on Monday, when the eight justices will convene for a non-argument session at 10 a.m. But the unofficial start came at 9:30 a.m. this morning, when the justices released an initial round of orders from their September 26 conference, which was the first conference to add new cases to their docket since late June. The justices granted only eight new cases today, five fewer than this time last year. And although the eight cases in which review was granted present some interesting questions (for example, a trademark case involving the musical group The Slants and a dispute over credit card surcharges), none of them involves particularly high-profile or divisive issues.
Today the court granted review in the following cases.
- Endrew F. v. Douglas County School District: What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act.
- McLane Co. v. EEOC: Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.
- Nelson v. Colorado: Whether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.
- Lee v. Tam: Whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment.
- Expressions Hair Design v. Schneiderman: Whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).
- Goodyear Tire & Rubber Co. v. Haeger, consolidated with Musnuff v. Haeger: Whether a federal court is required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process.
- Lynch v. Dimaya: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
- Lewis v. Clarke: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.
We expect the court to issue additional orders from its September 26 conference on Monday, October 3.
Coverage of the prospects for the new Supreme Court term that begins next week comes from Greg Stohr at Bloomberg, who previews the court’s “pared-down docket,” assesses the likelihood of court involvement in controversial areas such as transgender rights and immigration, and concludes that to “a large degree, the Supreme Court’s agenda will hinge on the results of the presidential election.” At The Hill, Lydia Wheeler offers another preview of the upcoming term, highlighting “five of the most interesting cases before the court.” Commentary on the court and the election comes from Bill Blum at Truthdig, who discusses some of the cases on the court’s “sparse roster” and warns that “the next president will have the power to reshape the nation’s ultimate judicial body, and with it, the power to redefine the meaning and application of the Constitution, not just for the next four or eight years, but for a generation or more.” In The Conversation, Eric Segall takes issue with the tendency of “most court watchers” to deplore the current eight-member Supreme Court as “an incomplete, divided legal institution,” arguing that “the longer we have an evenly divided court, the more likely it will be the justices will act more modestly, and take more heed of Hamilton’s warning that they exercise ‘judgment’ not ‘will.’”
The petition of the day is:
Issue: Whether it is fundamentally unfair and violates the due process clause of the 14th Amendment to require a capital habeas petitioner to bring a successive state habeas petition within six months of the discovery of previously unproduced evidence pursuant to Alabama Rule of Criminal Procedure 32.2(c), when Alabama Code § 6-5-440 would have simultaneously barred such a suit.
Sometimes one Question Presented can mask multiple issues. That seems to be the case with next Wednesday’s argument in Manuel v. City of Joliet, which is based on a federal Section 1983 claim filed by a man held in jail for 48 days on charges that the police allegedly knew to be false and that were later dismissed.
Title 42 U.S.C. §1983 has long provided a vehicle for federal courts to hear civil rights torts claims, and its complicated case law often turns on hoary common law tort doctrine from which Section 1983 sometimes borrows. Elijah Manuel describes his claim, for damages stemming from his allegedly false arrest through various court processes until all charges were dismissed 48 days later, as one for “malicious prosecution” (although he now seems to prefer “unlawful prolonged detention”). The primary question in this case is whether the Fourth Amendment or the due process clause of the 14th Amendment governs such a claim, a question similar to the question that six justices wrote separately about (none commanding a majority) some 22 years ago in Albright v. Oliver.
Even Duane Buck’s attorneys describe the facts of his crime as “horrific.” Buck believed that his former girlfriend, Debra Gardner, was in a romantic relationship with another man, Kenneth Butler. On July 30, 1995, he went to Gardner’s Houston home, where he shot and killed both Gardner and Butler. Buck also shot his step-sister, Phyllis Taylor, in the chest at point-blank range; the bullet missed her heart by only an inch, but she survived.
A Texas trial court appointed two lawyers to represent Buck at his trial. One of those lawyers, Jerry Guerinot, has been described as the worst capital defense lawyer in the country: Twenty of his clients have been sentenced to death. When the Supreme Court hears oral arguments in Buck’s case next week, the decision by those attorneys to present racially inflammatory testimony by a defense expert will be at the heart of the debate.
It’s the 1980s all over again – shoulder pads, synthesizers, bomber jackets and insider trading. But in 2016, the defendant in the biggest insider trading case of the year isn’t a high-profile Wall Street denizen like Ivan Boesky or “junk bond king” Michael Milken: The main character in this story is a Chicago grocery wholesaler named Bassam Salman. Even if Salman’s case lacks the glitz of other insider trading cases, though, both sides agree that the legal stakes in his case are high. Salman and his attorneys contend that, if his conviction for trading on third-hand information passed to him by an insider’s relative is allowed to stand, the federal government will essentially have free rein to prosecute whenever an insider passes on information to a friend or relative. The federal government counters that a ruling for Salman could exacerbate existing inequities in the stock market by making corporate insiders even more likely to pass on confidential information to friends and family. And lurking in the background is the broader issue, about which the justices have previously expressed concern, of overcriminalization – whether the federal criminal laws are being used to target conduct that Congress did not intend to make a crime.
As the beginning of the October 2016 Term approaches, court-watchers are engaged in previewing some of the cases on the Supreme Court’s docket. At Bloomberg Law, Kevin McGowan reports that although there is “just one labor-related item among the 31 cases granted review” so far by the Supreme Court for the new term, several pending requests for review raise important employment law issues. In the Constitutional Law Prof Blog, Ruthann Robson previews the “handful” of constitutional law cases on the Supreme Court’s docket for the upcoming term. Scott Graham reports for Law.com (subscription required) that with “four IP cases on the docket and several more knocking at the door of certiorari, the U.S. Supreme Court is poised for a banner year of patent, trademark and copyright decisions.” Chicago Tonight offers a discussion by former Supreme Court law clerks of the cases on the docket, notable petitions for review, and the effect on the court of Justice Antonin Scalia’s absence.
The petition of the day is:
Issue: (1) Whether, under section 35 of the Lanham Act, willful infringement is a prerequisite for an award of infringer’s profits for a violation of section 43(a), which prohibits trademark infringement through false representations regarding the origin, endorsement, or association of goods through the use of another’s distinctive mark; and (2) whether and to what extent the defense of laches may bar an award for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. Section 286—the same issue the court granted for plenary review in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC.
The justices of the Supreme Court normally return to the bench to hear the first oral arguments of the new term on the first Monday in October. But this year “First Monday” coincides with Rosh Hashanah, so oral arguments in the October Term 2016 won’t actually begin until Tuesday. In the second case that day, the justices will consider the plight of Lawrence Shaw, a California man who admits that he drained, without permission, another man’s sizeable checking account. His defense? He may have taken the money, but that doesn’t justify his federal conviction for bank fraud, because he didn’t mean to defraud the bank – which didn’t actually lose any money.