In Part I and Part II of this series, I discussed the highlights of the cases set for the October argument session and the November argument session.  Between those two months, the Supreme Court will hear 22 arguments on 23 cases.  As of this point in time, the Supreme Court has accepted 38 cases for argument.  That means that there are fifteen cases already accepted that do not yet have an argument date.  The cases for the December argument session will be announced in the next several weeks.  It is more likely than not that the Supreme Court will fill all the morning slots for that session (twelve cases).  The best bet will be that the Supreme Court will schedule the remaining three cases for the January argument session.  However, sometimes, the Supreme Court has scheduled afternoon argument sessions for December rather than carrying a case over to January.

Besides the existing cases that the Supreme Court will carry over to January, the Supreme Court will begin the process of filling the rest of the 2019 arguments sessions with its initial conference on September 24.   However, there are only a limited number of cases that the Supreme Court has to take.  Even with those cases, the Supreme Court can resolve those cases with a short unsigned (formally per curiam) opinion and does not have to accept full briefing and argument.  Everything else on the docket requires four justices to vote to accept the case.    Which means that the Supreme Court can decline to accept any case — no matter how important — because six justices do not want to address the issue at the present time or because they think that there is something unusual in the current case that interferes with reaching that issue.  Because, in a typical year, the Supreme Court gets over 8,000 petitions from parties that want the Supreme Court to take their case but grants review in less than 80 cases, it is hard to predict which cases will be accepted.   According to certpool.com, Monday’s conference will cover over 1,200 cases.  Even before relists (a decision by the Supreme Court to table a petition to a second conference before making a final decision — which has tended to become more common for cases under serious consideration in recent years), the October 5 conference will cover approximately 250 cases.   Even a site like Scotusblog which tries to list the most interesting of the petitions filed each week misses some grants and lists cases that are denied.  With all of these caveats, I will try to list some of the cases that appear to be in the pipeline that are of interest.

Among the cases already accepted, there are a handful that could have some significant impact.  For example, there is an anti-trust case looking at how to make the traditional rules fit apps for the I-phone.  Typically, Apple would be considered a mere intermediary between the purchaser and the suppliers and, thus, would not be subject to anti-trust claims.  However, Apple plays a unique role in the marketplace and does that unique role require anti-trust protection for both purchasers and suppliers.   Similarly there is a case (involving Merck) about the interaction between FDA labeling requirements and state “failure to warn” claims for the side effects of medications.   The Supreme Court has also accepted a case in which it may reconsider the “dual sovereign” exception to double jeopardy (basically that, if a defendant’s conduct violates the laws of multiple states or a state and the federal government, the defendant could be charged by both governments).  The Supreme Court will also consider whether the Excessive Fines Clause of the Eighth Amendment applies to the states and how that impacts civil forfeiture cases.  There are also two cases involving the relationship between treaties with two native tribes and state court jurisdiction over criminal matters.

The most political of the cases not yet set for argument is Nieves.  The issue is the elements of a claim asserting that a person was arrested in retaliation for exercising his free speech rights.  Law enforcement has asserted that, as long as there was actual probable cause (i.e. that there was an objectively valid reason for the arrest even if the motivation for the arrest was improper), the claim should fail.  The Supreme Court had a similar case this past term but ultimately opted to focus on the unique facts of that case without putting forth a rule that would apply generally.

Among the big cases that are in the pipeline is Rucho v. Common Cause, the North Carolina redistricting case.  As noted several weeks ago, this case was sent back to the trial court after the Supreme Court punted the Wisconsin case on standing.  The trial court found that there was no standing issue in this case and reissued its order finding that the North Carolina districts were an unconstitutional partisan gerrymander.  While North Carolina has not yet filed a notice of appeal, it is likely that it is coming.  This case falls into one of the categories that the Supreme Court has to take.  So it is more likely than not that this case will be argued in the Spring.  It is theoretically possible that the Supreme Court could find a reason to send the case back to the trial court without argument or summarily affirm, but my hunch is that the Supreme Court will have to resolve the issue that they punted in June — is a partisan gerrymander unconstitutional and what are the elements of such a claim.

There is also a pending petition for review on an issue that the Supreme Court avoided two terms ago — how the bar on discrimination based on gender in federal civil rights laws apply to transgender individuals.  While this question is a growing issue, it is also one that the Supreme Court might not wish to address.

More likely to get review is a case involving religious liberty filed by some conservative religious groups.  Apparently, a high school coach has a practice of kneeling at mid-field after every game.  His school district believes that it is inappropriate for teachers to engage in religious exercises while on the job and in the presence of students.  (Presumably the school district is concerned about the potential coercion placed on students to join in those exercises.)  The usual suspects have filed suit on behalf of the coach asserting that the restrictions and discipline imposed by the school district violates his free exercise rights.

There are also, as is the case every year, cases asking the Supreme Court to reconsider its rules governing deference to administrative agencies.  Depending upon who ends up replacing Justice Kennedy, the Supreme Court is likely to grant one of these cases in the next several years.

There are also several Eighth Amendment cases — some involving juveniles — with pending petitions.  Justice Kennedy was a swing vote on these cases.  Once there is a new justice, both sides are likely to be pushing to see if the change of justice will lead to some modification of the rules that apply to these claims.

Right now, we face a court in transition.  During the first decade of the Roberts Court, liberals had three viable options for reaching a 5-4 majority — Justice Scalia (in some categories of cases), Justice Kennedy, and Chief Justice Roberts.  Based on one full-term, it is difficult to tell where Justice Gorsuch will fall.  At the present time, he seems to be filling the spot occupied by the Justice that he replaced — Justice Scalia.  In other words, most of the time, in left-right splits, he will be voting with Justice Thomas and Justice Alito.  However, he has shown that on some cases, he will be the fifth vote with the “liberal” justices and that, in cases in which Justice Alito and Justice Thomas stake out ground that is out of the mainstream, he will join with Chief Justice Roberts and the liberal justices.  But for most of the past decade, the justice most likely to be the fifth vote was Justice Kennedy, and Justice Gorsuch looks to be significantly to the right of both Justice Kennedy and Chief Justice Roberts.  Based on his history in the D.C. Circuit, Judge Kavanaugh seems to be similar to, if not more conservative than, Justice Gorsuch (as are most of the top contenders if Judge Kavanaugh opts to have President Trump withdraw his nomination).  There will be some cases (three last year) in which Chief Justice Roberts provides the fifth vote.  There will be some cases (two last year) in which it is Justice Gorsuch is the justice joining with the liberal justices.  There may be even be bizarre cases in which it is Justice Alito and/or Justice Thomas who joins with the liberal.  But the bottom line is that there will be more cases in which the four conservative justices hold together and Chief Justice Roberts joins them.

If Democrats want to make major policy strides over the next decade, we need the House, we need the Senate, we need state legislators, we need Governors, and we need the White House.  We simply can’t count on the courts to save the country from the extremes currently controlling the Republican Party.  Maybe, in a decade or so, when Justice Thomas retires, we will be able to reclaim the judicial system for the values found in the Constitution, but that day is not today.  The path forward is through the ballot box and will require overcoming the Republican efforts to suppress the vote and democratic choice.  And that path starts this November.