It’s mid-September which means that the Supreme Court will soon be returning to Washington for this year’s term. The Supreme Court, for the most part, controls what cases it will schedule for full briefing and oral argument. For this fall, the Supreme Court has a total of twenty-eight cases (actually a little more, but several cases have been consolidated) available for argument over seventeen argument days. They have posted the schedule of cases for October and November with the remaining cases likely to be scheduled for December (although some may be heard in January). It is unclear if the low number of cases is the product of the time that it took to fill the vacancy on the Supreme Court or is the continuation of the long-term trend under the last three Chief Justices to gradually reduce the number of cases heard. However, the numbers tend to support the “reducing the docket” theory. While the January “holdover” cases are slightly low (only three), the number of cases on which the Supreme Court granted review in February and March are close to average. The real “below average” months are the months after Justice Gorsuch took the bench.
This part will look at the cases currently scheduled for argument in the “October” session beginning on October 2. As in past years, I will be focusing mostly on the “political” case, those dealing with elections or with heated public policy issues. These cases aren’t the entirety of the Supreme Court docket. A lot of the Supreme Court docket deals with resolving conflicts over the interpretation of interpretation of federal statutes or handling criminal justice issues. These cases do not get a lot of media attention, but they do matter to the persons impacted by them.
Of the ten cases on the October docket, three deal with immigration issues. Two of the cases (Dimaya) and (Jennings) are rearguments from last year. The belief is that these cases were probably 4-4 splits, but that might not be the case for Jennings.
The issue in Dimaya is the constitutionality of part of the definition of who can be deported. The definition is similar to a provision in the federal criminal code that the Supreme Court has previously found to be unconstitutionally vague. Hidden in the apparent split is whether the standards for precision in immigration law are less strict than the standards applied to criminal cases.
The second holdover — Jennings — involves bond while deportation hearings are pending. While the thought is that the reason for the rescheduling is a 4-4 split, there is a second possibility. The initial briefing and the first argument focused largely on the proper way to interpret the statute (with some consideration of constitutional issues as they impact the interpretation of the statute). After argument, the Supreme Court requested additional briefing on the constitutionality of the statute.
The new immigration case(s) is the consolidated cases on the Trump travel ban. Back in June, the Supreme Court allowed a very limited version of the travel ban to go into effect. (There has been some additional litigation that has narrowed the ban even further.) One issue that may impact the argument is whether the travel ban is now moot. By its own terms, the travel ban was for set period of time to give the Trump Administration time to review the process by which visas are granted. Since the bans are about to expire by their own terms, the Supreme Court could decide that there is no longer a need to determine their validity.
Sharing the opening day with Dimaya is a consolidated trio of cases dealing with union issues. The issue is whether the National Labor Relations Act (the law governing unions and collective bargaining) bars a collective bargaining agreement from requiring the arbitration of all work-related issues.
There are three other major cases in October. First, Gill is the next big redistricting case. The lower court found that the Wisconsin legislature engaged in an illegal partisan gerrymander. In the past, redistricting cases have mostly focused on racial gerrymander. The last time that the Supreme Court considered partisan gerrymander, the deciding vote (Justice Kennedy) concluded that, in theory, the Constitution barred partisan gerrymanders but that there was no workable standards for such a case. The successful plaintiffs (and several activists around the country that have filed supporting briefs) believe that the same computer technology which has made it easier to gerrymander district also can lead to workable standards.
The second case — involving the Department of Defense and the National Association of Manufacturers — involves the “Waters of the United States” rule. Technically, the issue in front of the Supreme Court is which court has the authority to review the validity of the rule. Given that conservatives have attacked the rule on the merits (claiming that it vastly and improperly expands federal authority under the Clean Waters Act), however, this decision may get some attention.
The third case (Jesner) deals with corporate liability under the Alien Tort Statute. The Alien Tort Act allows plaintiffs to sue individual defendants in the United States for acts committed outside the United States that violate “the laws of nations” and is often used in connection with human rights violations. It is unclear if the statute only reaches bad acts by individuals or also reaches bad acts by corporations. (In short, despite the sloganeering in the political arena, corporations are not people and are only treated as a “legal” person for some purposes.) Adding to the controversy is the defendant in this case — the Arab Bank. The underlying allegation is that the Arab Bank (a Jordanian-based bank with branches all over the world) has allowed itself to be used to funnel money for terrorist purposes. The plaintiffs seek to hold the bank civilly liable for damages caused by the terrorists who use the Bank to hold money and route payments. At this stage, the issue is not the merits of the allegation. It is whether the Alien Tort Statute can be used to bring claims against corporations in U.S. courts (as none of the illegal acts occurred in the U.S.). This case is not the first time that the Supreme Court has considered this issue. The last time — involving an oil companies operations in Nigeria — the Supreme Court found a way to resolve that case without reaching the scope of the Alien Tort Act. Needless to say, multinational corporations have been seeking to have the Supreme Court address this basic issue, preferably in a way that keeps them out of federal court.
As the above summary shows, this year is starting off with a bang. Seven cases that will probably get some media attention or will impact major issues. Long term, the most significant is probably Gill. I will be posting more on Gill either shortly before or shortly after it is argued. The outcome of Gill will play a major role in what happens in the next round of redistricting in 2021. (It is probably too late in this cycle to matter much for current districts. The decision will probably be issued too late for challenges to be resolved before the 2018 elections, leaving only the possibility of some new lines before the 2020 elections.)
And just like that the travel ban cases effectively disappear. Travel ban 2.0 (at least the non-refugee portion) expired yesterday, and the administration announced travel ban 3.0. The Supreme Court has asked for supplemental briefing on whether the changes eliminate the need to rule on 2.0 and have pulled it from the calendar. Best bet is an order either dismissing the case or vacating the lower court decisions with a directive to dismiss. And the legal challenges to 3.0 start now back in the lower courts.