In Part I of this year’s Supreme Court preview, we took a look at the ten cases set for argument during the first two weeks of October.  Currently, for it’s six-day November argument session (which actually begins on October 30), the Supreme Court has eight cases.

Unlike October in which seven cases have the potential to generate headlines or impact elections or major policy issues, November looks a lot less intense.  The first week is one of those technical weeks that matter mostly to the parties and the attorneys who practice in an area — two cases dealing with the procedure for federal habeas practice (the review of state court decisions by the federal courts), one case deals with bankruptcy issues, and one case deals with the tolling of state law claims while a related federal claim is pending.  The second week starts with another two technical cases — another bankruptcy issue and a case on the disclosure requirements for companies that have publicly traded stocks and bonds (focusing mostly on when an incomplete disclosure is misleading).

The last two cases — set for November 7 and November 8 — respectively are the big political cases of the November argument session.  The first case (Patchak) involves what appears to be a growing trend — Congress passing laws to deal with pending cases.   In this case, after federal courts had found that plaintiff’s had raised colorable claims (i.e. ones that, if true, would entitle him to relief), Congress passed a law directing that the courts to dismiss the case.  While Congress does have some authority to change the laws governing certain types of claims or the procedural rules that apply to claims, the rules are a little bit less clear when Congress tries to direct the judgment in a specific case.  Adding to the complicating factors, the case involves the U.S. government taking land into trust for a tribe.  While the merits of whether the land properly belongs to the tribe is technically not the issue at this stage of the case, that may play some role in the analysis.

The other case (Hulsted) involves voter registration in Ohio.  Federal law governs when a state can remove voters from the voter rolls.   In Ohio, if a voter does not vote in a particular two-year cycle, Ohio sends a notice to the voter.  If the voter does not vote in any election over the next four years (two two-year cycles), Ohio then deletes the voter.    The issue is whether this policy violates federal election law on when a state can use the failure to vote as a reason for removal.  Technically, the case involves the proper interpretation of the federal statute at issue.  And a decision against Ohio could lead to different policies that would comply with federal law and have the same result (or perhaps lead to even more people having their registration cancelled).  But given Republican election authorities using every trick in the book to create burdens on voting, this case could make a difference in the 2018 and 2020 elections.