It’s that time of year again. After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.
A quick refresher. From October through late April/Early May., the Supreme Court will have seven two-week argument sessions. With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess. In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious). On argument days, the Supreme Court will usually hear two cases in the morning. (That “usual” is very flexible. With the declining number of cases granted in recent years, we have been seeing more single argument days. Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case. Rarer is having enough cases that they also schedule an afternoon argument.) They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari). They also meet in a conference on the Friday before the argument session to consider petitions for review. Orders on the petitions for review are released on the Monday after the conference. In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.
The October argument session (and the term) officially begins on the first Monday in October (October 3, this year). They will meet in the “long conference” to kick off the term on September 28. (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.)
At this point, the Supreme Court has announced its argument schedule for October and November. There are other cases that have been accepted for review which will probably be heard in December and January, but the exact schedule has not been released. As always, the summary focuses on cases that involve “political” issues — either directly about elections or about issues that are likely to arise in political campaigns. By definition, every case that the Supreme Court takes has an important legal issue. But who qualifies as an executive for the purpose of overtime compensation (at issue in one of this Fall’s cases) is not likely to come up in any of the candidate debates between now and the election.
Due to Yom Kippur and Columbus Day, the October schedule only has four argument days. The first case on the docket is potentially very big. The case, Sackett v. EPA, involves the Clean Water Act and the regulation of wetlands. It has been approximately sixteen years since the Supreme Court last looked at this issue. At the time, the Supreme Court was unable to reach a consensus on the test for determining whether a particular wetland was subject to federal jurisdiction (based on a connection to navigable waters). Now that a conservative majority has become an ultra-conservative majority, the hope is that the votes are there to get a clear decision cutting back the power of the EPA and drastically limiting the scope of the Clean Water Act.
The next big case will be argued on October 4. It is actually two companion cases involving redistricting in Alabama under the Voting Rights Act. The issue concerns Section 2 of the Voting Rights Act which bars states from diluting the votes of minority groups. Approximately forty years ago, the Supreme Court established a test for determining when the failure to create a minority-majority seat (or additional minority-majority seats) shows an intent to deprive minorities of fair representation. While the test is imperfect, it essentially looks at whether it is possible to draw lines under traditional districting criteria (sufficiently compact, following political subdivision boundaries) that would increase the number of minority seats. In Alabama, changes in the distribution of voters around the state have made it possible to create two minority-majority seats (as opposed to the current one). So conservatives want to change the test. Given that this Supreme Court has already proven its hostility to the Voting Rights Act, it is expected that the Supreme Court will decide to throw the current test out. It should be noted that traditionally, the rule of following precedent has been strongest in cases involving statutes. The typical assumption is that if a court gets a statute wrong, Congress can fix it by changing the statute. In the case of the Voting Rights Act, Congress has, historically, changed the Voting Rights Act several times in response to court decisions, but those changes have always been to strengthen the Voting Rights Act after a decision narrowing its scope. In the case of Section 2, there is no change that would show that Congress has rejected the current test.
On October 11, the Supreme Court takes up National Pork Producers vs. Ross. Ross involves a doctrine that lawyers call the “Dormant Commerce Clause.” Essentially, the Dormant Commerce Clause bars states from discriminating against out-of-state businesses. (As the name implies, the Dormant Commerce Clause is a corollary to the Commerce Clause. The Commerce Clause gives Congress the authority to regulate interstate commerce. The Dormant Commerce Clause infers from that grant of power that states are not allowed to interfere with interstate commerce.) The California statute in Ross does not directly discriminate against out-of-state businesses. Instead, it requires out-of-state pork producers to comply with California regulations on the raising of pigs. Put simply, the question is whether states can indirectly impose regulations on out-of-state producers as a condition of offering their product for sale within the state imposing the regulation. While some businesses might be able to have multiple product lines to comply with different rules in different, other business could find themselves between a rock and a hard place if multiple states had conflicting regulations. But dealing with that practical concern will require the creation of new doctrine by the courts.
The November session begins on Halloween. The session will have ten arguments over six days.
The session begins with two separate cases raising similar issues — affirmative action in college admission. One case involves a public college (the University of North Carolina), posing a clear constitutional issue under the Equal Protection Clause. The other involves a private college (Harvard University) and suggests that Title VI of the Civil Rights Act should be interpreted to impose the same restrictions on private schools that the Equal Protection Clause imposes on public universities. The cases are being heard separately because Justice Jackson is recused from the case involving Harvard University. Given the hostility of the majority to civil rights, it seems likely that the Supreme Court will overrule the cases finding that appropriately structured affirmative action programs are allowed.
On November 7, we will get our next appointment powers cases — SEC vs. Cochran and Axon Enterprise vs. Federal Trade Commission. The issue in these cases is something that readers of this site should, unfortunately, be familiar with by now. There are several statutes governing agencies which attempt to insulate the agencies from interference by the White House. But the default rule according to the Supreme Court is that the final agency decision in any agency action has to be made by a political appointee subject to removal by the President. While that is the underlying issue in these cases, the actual issue is a one step removed. There are statutes which limit federal court review of SEC and FTC decisions, and the question is whether those statutes bar courts from invalidating agency actions due to alleged appointments clause issues.
On November 8, the Supreme Court will hear a case that might fall below the radar but is actually very significant — Mallory vs. Norfolk Southern Railway Company. By way of background, the law requires that a court has “personal jurisdiction” over a defendant in a civil case. Simplified, personal jurisdiction means that a party is subject to the authority of a government. A state has personal jurisdiction over all of the residents of a state. But whether a government has personal jurisdiction over a non-resident can be a more difficult question. A party can agree to personal jurisdiction by contract (which is how many credit card companies have the ability to require cases be heard in their preferred court via the “contract” that they have with the holders of those credit cards. Legally speaking, corporations reside in their states of incorporation and/or the state in which their headquarters are located. To get around the issue of whether the corporation has enough connections to a specific state to be subject to personal jurisdiction (which may be different for different types of claims), many states require corporations to consent to personal jurisdiction in order to operate within the state. This case involves whether such consents are valid. While out-of-state corporations can always remove cases from state court to federal court, the validity of the consents will impact whether average citizens can sue out-of-state corporations in their local courts (either state or federal) or will have to go courts located near corporate offices.
Finally, November 9 is Indian Child Welfare Act day — multiple consolidated cases challenging the constitutionality of the Indian Child Welfare Act. To put things simply, the Indian Child Welfare Act is designed to prevent courts from undermining Native American tribes by giving Native children to non-Native adoptive parents. In U.S. history, there have been times when the policy of various levels of government was to “civilize” Native Americans by having them be raised by non-Native parents where they will be brought up in “American” rather than tribal culture. The Indian Child Welfare Act, in relevant part, imposes certain duties on state family courts — centered around provisions intended to give preference to tribal members as potential adoptive parents and imposing certain procedural protections for tribal involvement. The essential challenge in this case is that those provisions violate the Tenth Amendment by requiring state actors (the judges and court clerk) to perform certain actions. (One aspect of Tenth Amendment case law is that a federal law may not impose a duty on state officials in their capacity as state officials.) Needless to say, a ruling against the Department of the Interior would — aside from being historically idiotic — would remove one of those “never again” protections against trying to decimate Native tribes.
That is all the cases that have, at least as of today, set for argument on a specific date. (We should be getting the December argument list any day now as we got the November argument list back in early August.) Part 2 will cover the cases that do not yet have an argument day as well as some cases that are up for possible consideration.
