It’s mid-September.  In less than one week, the Supreme Court will meet behind closed doors in conference (the so-called “Long Conference”) to consider petitions for review (primarily petitions for certiorari a/k/a “cert petitions”) that have piled up since they recessed at the end of June.  And, in less than two weeks, the Supreme Court will begin hearing arguments for this year’s term.

Before they left at the end of June, the Supreme Court had agreed to review thirty-eight cases on the merits.  Two of these cases involve the same issue (arising from different states) and have been consolidated for argument, meaning that the Supreme Court has agreed to thirty-seven arguments.   Traditionally, the U.S. Supreme Court hears arguments in two-week sessions — having argument on Monday, Tuesday, and Wednesday starting at 10 AM Eastern Time.  Usually, each argument is sixty-minutes (thirty minutes per side).   The Supreme Court has a maximum of two cases in the morning, and can reconvene after lunch for additional arguments.  With seven argument sessions (typically referred to by the month — starting in October and running through April), the Supreme Court has slightly less than 42 days of argument. (Columbus Day always falls in the October session.  In some years, Veteran’s Day,  Martin Luther King’s Birthday, and President’s Day fall within an argument session.  And, depending on the Hebrew Calendar,  Yom Kippur can also fall within an argument session.  Thus, there can be anywhere between 37 and 41 argument days.)  This year, there are potentially 41 argument days.  In the 60s and 70s, when the Supreme Court was issuing over 100 opinions per year, afternoon arguments were common.   In recent years, with fewer than seventy opinions in some years, there are argument days with only one argument, and we rarely have an afternoon argument.

In the past two years, thanks in part to the vacancy after Scalia’s death, the Supreme Court started the term without enough cases to fill the 2018 argument sessions (October, November, December).  Since it takes about 70 days after a case is accepted for the parties to complete briefing (the written arguments on the case which — in most cases — matter more than oral arguments), cases being accepted from late September through January are for the 2019 argument sessions.  With 37 arguments accepted, there should be more than enough cases to fill the 2018 argument session. (There are 17 argument days, implying 34 arguments through December with three cases carried over to the January 2019 argument session.  As December’s docket will be posted toward the end of this month, there might be one or two afternoon arguments in December reducing the carryover.)

At this point, we do know what cases have been scheduled for argument in October and November.   The year starts with an argument over the Endangered Species Act — specifically the ability to designate private land as critical to the habitat of a species even if that land is not part of the current habitat of the species.  Also on the first day, the Supreme Court will hear an argument about whether the Age Discrimination in Employment Act applies to small political subdivisions.  (It does not apply to small private employers, and the case is about an ambiguity in the statute about whether the minimum employees language only applies to private employers or also applies to public employers.)

The big political case in October is probably Gundy vs. United States.  Technically, the case is about whether a convicted sex offender has to register under federal law.  However, the offender’s claim is based on the “non-delegation” doctrine.  Back before the New Deal, when courts were striking down attempts to regulate businesses, one theory of attack on these laws were that they delegated the authority to make rules to administrative officials.  Under this theory, the power to make laws belongs to the legislature not the executive, and that legislative power could not be delegated to the executive branch.  The ultimate resolution of the non-delegation doctrine was that executive officials could adopt regulations implementing a statute as long as the statute gave sufficient guidance.  For sex offender registration, the federal law gives the Attorney General the power to determine — in some cases — which offenses qualify for registration — a critical power given that we are dealing with state statutes and states can write the elements of their offenses as they see fit.  Since the 1930s, the non-delegation doctrine has been pretty much dead.  This case is an attempt to fulfill the Federalist Society’s goal of overturning the major decisions of the New Deal Supreme Court that allowed significant regulations of private business.  If the challengers succeed, a lot of federal regulations will be attacked in the next few years.

Another significant effort to undo decades of settled law is Knick vs. Scott, Pennsylvania.  For over thirty years, the law has been that a party claiming that the government has taken their land without just compensation has to use state law remedies first.  Since the finding of what constitutes just compensation or whether there has been a taking essentially resolves the federal claim, the effect of this rule has been to keep Takings Clause cases in state court.  Conservatives want to allow the landowners the option of choosing to raise their claims in federal court.  Most local governments have the resources to fight in the local state court with local juries who know the value of land in their neighborhood.  Going to federal court would increase the expense for small governments and give a big advantage to larger landowners who have the resources to fight in federal court.

The first day of the second week has two arguments in three cases applying the Armed Career Criminals Act.  The Act provides for enhanced penalties to felons who possess guns if they have enough qualifying prior offenses.  These two arguments provide the flip side of the non-delegation argument in the sex offender registry case.  The Act lists certain offenses that qualify and determining what state offenses qualify has been a nightmare for the Supreme Court with multiple cases over the years.  The consolidated argument involves burglary conditions in two separate states.  Burglary is a qualifying offense, but, in past cases, the Supreme Court has stated that the law is not concerned with the label given to an offense by the individual state but rather the elements of the state offense meet a certain definition of burglary.  As a result, all burglaries in state X might qualify as burglary under the Act, but no burglaries in state Y might qualify as burglary under the Act.  Most significantly, in states with a broader definition of burglary than the federal definition, the way that the state offense is phrased determines if some state burglaries or no state burglaries meet the federal definition.  Needless to say, this approach has created chaos in the federal courts with circuits going back and forth on how to treat a given state’s statute.

As if October wasn’t busy enough, there is also a case on detention of deportable immigrants.

There is one thing that is different at the Supreme Court website (www.supremecourt.gov).  Recently, the Supreme Court went to electronic filing.  Before they went to electronic filing, you had to go to other websites run by private individuals who cared enough to request copies of documents filed by the Supreme Court and downloaded those documents on their websites if you wanted to view the filings at the Supreme Court.  Since the Supreme Court started requiring electronic filings, you can now view the documents by simply using the docket search link and finding the Supreme Court’s docket on the case (which includes the links to all documents filed in the case).

One thing that should be clear from the October cases is that conservatives fully intend to take advantage of their 5-4 majority on the Supreme Court.  The story of this upcoming term (and the next several years) will be whether Chief Justice Roberts goes along with overturning a large number of prior decisions or if he is willing to insist on honoring precedent (even if the honoring is by very narrowly interpreting some of the earlier decisions).    For those of us who practice law, it is important that courts be, at least, somewhat non-political.  Having settled rules allow us to advise clients on what they can do, and (if a dispute arises) what the likely result of a trial would be thereby allowing our clients to determine whether to settle or fight to the end.  If every rule is subject to reconsideration based on changes in which party has a majority on the Supreme Court, it becomes much harder to give good advice.  Besides the impact on attorneys, the public view of the Supreme Court depends on it maintaining, at the least, an appearance of being non-political.   That appearance is very much at risk given recent cases that have discarded settled precedents in a way that favors the interest groups supporting the Republican Party (the NRA, conservative think tanks, big business).