As noted in Part I and Part II of this series, there are some very big cases in the first two months of the upcoming Supreme Court term — the applicability of Title VII to sexual orientation and issues related to the board managing Puerto Rico’s debt in October and DACA in November.  Likewise, December has a big case — maybe.

That big case — New York State Rifle and Pistol Association vs. City of New York — is currently set on the first day of the December argument session.  At issue is a New York City ordinance which limits the transportation of firearms by gunowners.  The corporate gun lobby has pushed a Second Amendment challenge to this ordinance. Now, for the catch.  When the Supreme Court took this case, New York City and New York State saw the writing on the wall with this Court.  The original ordinance probably went too far even for those who want tighter restrictions on the sale of handguns.  So New York City repealed the original ordinance and passed a new less restrictive ordinance, and New York State passed legislation clarifying the powers of cities in this matter.  Because the ordinance being challenged no longer exists, the City wants the Supreme Court to dismiss the case as there is no longer a live “controversy” — and under the Constitution the Supreme Court can only hear “cases and controversies.”  There are exceptions which allow a court to review repealed statutes and, one of the issues at the October 1 term opening conference is whether to dismiss this case or keep it on the calendar for argument.

The second case on December 2 involves how copyright law applies to government documents.  Generally speaking, past decisions hold that governments are not allowed to copyright judicial opinions or statutes.  So, any person can go to the library (or an internet site) and copy a judicial opinion or a statute and then establish their own internet site (or publish and sell their own books) containing those opinions or statutes.  This limitation on government copyrights assure that the public has access to the decisions of their government.  One of the things that publishers do to enhance value is create “annotated” copies of statutes — a version in which each statute is followed by a series of notes setting forth the cases that have considered that statute and what those cases have held.  For the most part, these annotated versions are created by private companies.  Georgia, however, has an official copy of its annotated statutes.  The issue is — since a state can’t copyright its statutes or court cases — whether a state can copyright an annotated version of its statutes.  Many of the main legal publishing companies have filed briefs generally in support of Georgia (for fear that a holding in favor of the public interest groups in this case might eventually be used to attack their copyrights on their annotations as well).

There are two cases on December 3.  The first is a technical tax law case involving “consolidated” corporate returns (one return filed on behalf of the parent corporation and its subsidiaries) and which corporation “owns” what part of any refunds or owes any additional payments.  The other case involves environmental law, specifically whether the federal law governing cleanup at so-called “Superfund” sites preempts any state law claims seeking additional steps to restore those sites.

The two cases on December 4 both involve technical issues of law.  The first includes the “discovery” rule for statutes of limitations.  Generally speaking, the time limit for filing a case is calculated from the date when the plaintiff discovers the injury.  In this case, the corporation made disclosure of the relevant information to affected individuals.  Of course, not every person who is a beneficiary of a benefits plan (whether pension or health insurance or other) reads every notice sent to them by the plan management.  So the issue is whether plaintiffs should be deemed to be on notice of and have discovered their claim based on that disclosure.

The other case involves the rules governing appeals in federal cases, specifically in habeas cases.  Generally speaking, the losing party in a case has the ability to file a motion for a new trial (or to amend the judgment) under Federal Civil Rule 59(e).  If such a motion is filed, the time for filing an appeal begins to run when the motion is denied.  However, in habeas cases, prisoners are only allowed to file one petition for habeas relief barring unusual circumstances.   Sometimes, prisoners — rather than filing a proper motion for new trial challenging the trial court’s ruling on the claims that were raised in their petition — file a pleading that they label as a Rule 59 motion that actually asserts new claims for relief.  The issue in this case is whether the trial court should be required to give notice to the inmate that the motion is not proper and will not extend the time for filing an appeal (prior to that time expiring),  In this case, the trial court treated the motion as a proper motion (and it might have been) but the appellate court found that the motion was not a proper Rule 59 motion and used that finding to dismiss the appeal as untimely without addressing the merits of the denial of the claims raised in the original habeas petition.  While a lot of issues involving habeas petitions involve conflict between prosecutors (who want finality to convictions) and defendants (who oppose any limit on their ability to raise new challenges to their convictions), this case should not.  There are time limits on the filing of a Rule 59 motion and a defendant only gets one such motion.  If the motion fails to state any valid grounds for relief, it should not take the trial court long to issue a simple order finding that the motion is without merit.  (In this way, Rule 59 motions differ from Rule 60 motions which can be filed years later.  It makes sense for the Supreme Court to rule that a Rule 60 motion which seeks to raise new claims is not a proper Rule 60 motion and should be treated as a successive petition.)

The second week starts with a consolidated argument in two cases on December 9.  Both cases relate to immigration.  Like in some other categories of law, there are certain circumstances in which courts recognize “equitable tolling” that will extend the deadline for a party to take a certain action.   In these two cases, the issue is whether an appellate court can review a decision denying equitable tolling.  The other case on December 9 also involves the time limits for taking action but in the context of when a party can request (and the Patent Office can consider and grant) an administrative review of a decision granting a patent.

December 10 sees the second big argument of December.  In a consolidated argument, the Supreme Court is again considering the Affordable Care Act.  The issue in these cases involves the refusal of Congressional Republicans to appropriate the payment to insurers required under the Affordable Care Act (to compensate for claims exceeding premiums).   The basic issue is whether Congress can use restrictions on actually making payments in appropriations bills to implicitly amend a statute that creates an entitlement.

The other case on December 10 is a federal criminal case.  Like the December 4 habeas argument, this case involves a somewhat absurd ruling by a federal appellate court.  Typically, in a trial, a party needs to make an objection to raise an evidentiary or procedural issue and “preserve” it for appeal.  The reason for this rule is to give the trial court the opportunity to make the correct decision.  There are some exceptions to this rule.  At sentencing, the parties put forth their own calculations of the proper sentencing guidelines and make arguments for the appropriate sentencing.  The issue here is whether a party must — after the trial court rejects those arguments and imposes a sentence above that proposed by defendant (or below that proposed by the prosecution) — formally object to the sentencing decision to put the trial court on notice that the party disagrees with the sentencing decision.  The appellate court found that such a formal objection was necessary.  Even the government is not defending this decision, and the Supreme Court has had to appoint an attorney to make arguments in defense of the decision.  (Something that happens about ever other year.)

December 11 closes the fall arguments with two technical cases.  The first case involves two questions related to the international convention on child abduction cases.  The first question asks the appropriate standard for review in these cases.  (There are a variety of standards used by appellate courts to review the decision of the trial courts.  All of these standards make it difficult to win on appeal — generally because only trial courts hear witnesses and so appellate courts do not second guess the factual determinations of trial courts — but some make it more difficult than others.)  The second asks what facts must be found to establish which country is the “habitual residence” of the child.

The other case is a death penalty case.  Oversimplifying, for approximately 40 years, the law has required that states had to establish a list of “aggravating circumstances” that would distinguish “death eligible” murder cases from other cases.  And approximately 15 years ago, the U.S. Supreme Court held that juries had to make the decision of whether those circumstances had been proved by the prosecution.  However, that decision only applied to new cases and did not apply to cases in which the direct appeal was already over.  (In most capital cases, there are three rounds of review — direct appeal, state collateral review, and federal habeas collateral review.)  Arizona was one of those states which prior to that ruling allowed judges to find aggravating circumstances and then allowed its appellate courts to reweigh the evidence to determine if the sentence of death imposed by the trial court was appropriate.  In this case, which was final before the ruling mandating that juries find aggravating circumstances, the inmate ultimately had his original sentence set aside on federal habeas review for other errors — by the Arizona Supreme Court failing to consider certain mitigating evidence.   The Arizona courts found that, because his original sentence was final before he had a right to jury finding of aggravating circumstances, the inmate did not have a right to a jury hearing on aggravating circumstances as part of his re-sentencing and the Arizona Supreme Court could reweigh the evidence (taking into account the federal ruling that it had to consider all of the defendant’s mitigating evidence) to determine if the original sentence was still valid.  The issue is whether — since the original decision on direct appeal was set aside — the Arizona Supreme Court should have applied current law (including the right to jury findings on aggravated circumstances) rather than the law as it was at the time of the original direct appeal.

With the Affordable Care Act (and maybe the Second Amendment) joining DACA and LGBT issues on the Supreme Court docket, it is almost impossible that the Supreme Court’s decisions from this term will not create significant controversy that will become campaign issues in the fall (and maybe even in the primary if some of the opinions come quickly but it is highly unlikely that any of these big cases will be decided before Super Tuesday).  Democrats need to have a strong vision of what we expect from our justices and judges, particularly in light of the fact that the most extreme part of the Republican Party has used coded language that purports to want neutral justices while actually pushing for justices who will misinterpret the law and rewrite history to support those rulings.  We also need to recognize that many of this term’s controversial cases involve statutory issues that can be fixed by Congress.  (By my count, of the eleven cases most likely to create some degree of controversy, ten of the cases involve federal statutes that could be fixed by Congress in 2021.) So we not only need to get back the White House, but we need to win the Senate and House as well.