Officially, the annual term of the Supreme Court begins on the first Monday in October.  This year, due to Rosh Hashanah falling on that date, arguments for the year will begin on October 4.  Earlier this summer, the Supreme Court released the argument calendar for October (eight cases over three days) and November (ten arguments over six days).  As noted in Part One, the Supreme Court seems to be postponing the cases most likely to be decided 4-4 for as long as possible in the hopes of getting a ninth Justice soon.  That does not mean, however, that there are no cases of potential significance in these two months.

October seems to be criminal law month at the court.  Seven of the cases are either criminal law cases or involve criminal law issues.  Some of these cases involve technical issues of the meaning of federal statutes (e.g. whether it is enough for a federal bank fraud charge that the money stolen is held at a bank or if the target of the fraud has to be the bank itself).   Others involve big constitutional issues such as the ability to file a civil rights suit alleging that a “malicious prosecution” renders the underlying arrest unreasonable.

There are two cases that might get some attention due to the racial component.  First,  Buck v. Davis, arises from some of the unique features of capital punishment in Texas.  Texas law expressly requires the jury to consider the future dangerousness of the defendant.  In this case, the defense expert, while overall stating that defendant would not be a future danger, did testify that the defendant’s race was a factor that tended to indicate that the defendant was a potential future danger.  In cases where the State had called this expert, courts have granted relief to the defendant on the grounds that including race in the analysis was improper.  Here, because the defense called this witness, the defendant can gain relief only if presenting this evidence was so clearly a bad decision and so clearly prejudicial to the defendant’s case that counsel was constitutionally ineffective.   There are two complicating facts in this case:  1) this case is a federal habeas case; and 2) the Fifth Circuit declined to grant review on the merits.  As a federal habeas case, the trial court could only grant relief if it found that the state court unreasonably applied a Supreme Court decision or unreasonably applied the facts.  Under federal habeas law, a party only get appellate review on the merits if reasonable people could disagree about whether the defendant should get relief.  It is likely that the Supreme Court will dance around the merits and merely hold that the Fifth Circuit should grant full review on the merits.

Second, Pena-Rodrigues v. Colorado, involves a traditional rule of evidence governing motions for new trial.  Normally, the losing party at trial files a motion for new trial alleging that certain errors at trial requires the granting of a new trial.  In post-trial hearings on such motions, a party is not allowed to prove jury misconduct during the trial with testimony from jurors about the deliberation process.  In legal jargon, jurors are not allowed to impeach the verdict.   This case involves a claim that the jury was not impartial due to racial bias.  The defendant would like to use testimony from the jurors about allegedly racist comments that were made during deliberations.  The ultimate issue is whether the constitutional right to a fair jury trumps the typical rule barring juror testimony about deliberations.  While this case might ultimately be a close call — involving two competing significant legal values (the secrecy of jury deliberations vs. racial equality and fairness) — any split is not likely to fall along the traditional liberal and conservative lines.

The only non-criminal case is a patent infringement case involving Samsung and Apple, big for the tech industry but not likely to get major attention.

The November docket begins on Halloween and ends on the day after the election.  While there are some potentially significant cases involving education plans for disabled students, the consequence for violating the confidentiality of initial filings in qui tam cases (law suits filed by private individuals on behalf of the government), suits against foreign governments,  most of the cases are unlikely to get much attention up front in a way that would make the Supreme Court the center of the current election.  The one exception may be a case involving who can serve as an “acting” federal officer during a vacancy in the office.  During recent years, the process of nominating and confirming individuals to fill the over three hundred positions requiring Senate confirmation has essentially broken down.    The result is that many significant executive branch positions are either completely vacant or being temporarily filled by someone acting in that position.  When that position has the responsibility for making decisions, whether there is someone legally qualified to temporarily fill that position pending confirmation of the new official can impact the ability of the agency or department to act on certain matters.  In the case being heard by the Supreme Court, the lower court decided that the agency (the National Labor Relations Board) lacked the ability to pursue a case because the person acting as general counsel was not legally authorized to serve as acting general counsel.

Given the recurring issues raised by the birther movement, the last case on the November docket raises a rather ironic issue.  There are two ways to be a U.S. citizen at birth — to be born in the U.S. or to be born to a U.S. citizen parent or parents.  A child born in the U.S. is automatically a citizen.  However, whether a child born to a U.S. citizen parent or parents is a U.S. citizen depends upon how long the citizen parent(s) have resided in the U.S.  U.S. law, however, has a different provision for children born to unwed parents (with a U.S. citizen mother) than for married parents.  The issue raised by the case to be heard on November 9 is whether this distinction violates equal protection.  (Citizenship law is rather complex with different rules depending upon if both parents are citizens, one is a citizen and the other a “national,” or one is a citizen and the other an alien.  The law governing an unmarried mother being a citizen effectively treats the father as a “national” — more favorable than the law for the father being an alien, but less favorable than the father being a citizen.  If the father’s paternity is established, the child gets the advantage of the provisions governing wed parents, but only if they are more favorable.)