In its conference of December 2, 2016, the court will consider petitions involving issues such as whether the Uniformed Services Former Spouses’ Protection Act pre-empts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability; whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters authorizes service of process by mail; and whether the Employee Retirement Income Security Act of 1974’s church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.
In overviews of the Supreme Court’s current term, the conventional wisdom is that the court is mostly shying away from controversial cases and topics, as it waits to learn when it will have a ninth justice and who that justice will be. There are currently no cases on the docket involving, for example, abortion, affirmative action or gun rights. But the justices have not been avoiding another hot-button topic: race, and how it intersects with issues like the death penalty, juror bias and mortgage lending. Next Monday, the court will take on two more cases related to race, this time as it plays a role in the process of drawing legislative maps. The justices’ rulings in those cases could provide important guidance on when the use of race in redistricting goes too far and how courts should make that determination.
Czyzewski v. Jevic Holding Corp., set for argument on December 7, involves a challenge to the increasingly fashionable use of “structured dismissal” to resolve Chapter 11 bankruptcy cases. Structured-dismissal practice is unlikely to emerge from the case unscathed. If the Supreme Court does reverse the appeals court’s decision upholding Jevic’s structured dismissal, though, it may well tread carefully and deliberately limit the scope of its ruling. A broad holding or rationale could hamstring bankruptcy-court discretion to allow interim distributions in a wide variety of areas, casting doubt on a range of existing practices.
Today’s argument docket features Jennings v. Rodriguez, a class-action due-process challenge to the prolonged detention of immigrants. Kevin Johnson previewed the case for this blog. Reymond Yammine and Natalia San Juan provide another preview for Cornell University Law School’s Legal Information Institute. Additional coverage of Jennings comes from Nina Totenberg at NPR, who notes that the court will be deciding “important immigration questions” “even as President-elect Donald Trump talks of pushing for more deportations,” and David Savage of the Los Angeles Times, who quotes legal experts as saying that “a Supreme Court ruling upholding the president’s power to detain immigrants indefinitely would give the new administration greater leverage in cracking down against illegal immigration.”
The petition of the day is:
Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.
Today the first-argued case of the term yielded the first full opinion of the term. In Bravo-Fernandez v. United States, the court unanimously concluded that when a jury has returned inconsistent verdicts in a multi-count criminal case – acquittals on some counts but a conviction on another – the fact that the conviction count has been vacated on appeal due to jury instruction error does not bar retrial on that count under the double jeopardy clause. Because “inconsistent verdicts shroud in mystery what the jury necessarily decided,” the court concluded, the issue preclusion doctrine of Ashe v. Swenson cannot be applied. Justice Ginsburg wrote for the court, and Justice Thomas provided a solo concurrence.
Though Life Technologies v. Promega arises out of patent infringement litigation, the issue at the Supreme Court is really a classic statutory interpretation dispute turning on the meaning of the word “substantial.” Because the concept of substantiality is so ubiquitous in law (from the “substantial factor test” in tort causation to the “substantial evidence” test in administrative law), this seemingly narrow patent case should be of interest as much to general appellate practitioners as to patent law specialists.
Yesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.