The Supreme Court is set for a somewhat early start for its January arguments session. While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term. There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March. There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.
Starting with the rearument case for January, that case is a Takings Clause case. In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court. Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court. Conservatives do not like this rule and have been questioning it since it was created. This case was originally argued in front of an eight-justice court in October. Then it got set for re-argument in January. While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie.
Also up for argument in January is Merck. As the party name should suggest, this case is about pharmaceuticals. Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA. If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn. The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted. The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted. As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning.
Also in January is a case on foreclosures and the Fair Debt Collection Act. When people buy a home, they have to sign multiple documents. Two of the documents are a promissory note for the loan and a deed of trust giving the lender a security interest in your house. Most people collectively refer to these two documents as the mortgage. It is clear that the promissory note (in which you agree to repay the home loan) is a debt and that an action to collect on the promissory note is subject to the protections of the Fair Debt Collection Act. The deed of trust, in many states, however allows the lender to take possession of your home (foreclose) and sell it (with the proceeds applied against the debt) if you default on the payment of the loan. The federal courts are split on whether the consumer protections in the Fair Debt Collection Act apply to foreclosures. Several other cases of interest before the court include Herrera (the latest of a growing series of cases in which Native Americans and tribal governments are calling for the U.S. to actually abide by its treaties with the various tribes) and Hyatt (whether a plaintiff can seek damages arising from a state’s erroneous attempt to collect taxes in a case filed in another state’s court system).
The big case in February is a bizarre case involving the Census Bureau. The ultimate issue in the underlying case is whether Census Bureau can ask a question about citizenship in the 2020 census. Before the trial in the underlying case, the trial court permitted some discovery regarding matters that were technically not part of the administrative record prepared by the Census Bureau and Commerce Department (which would include where the idea for this question originated). The underlying case has gone to trial, but, to the best of my knowledge, the trial judge has not yet ruled on the merits. In theory, what is pending in the Supreme Court, is merely the appropriateness of the trial court’s discovery orders. It is unlikely that the argument and opinion will avoid drifting into the merits.
The second big case in February is the consolidated cases involving a Maryland war memorial built after World War I. The war memorial is a rather big cross. It was originally built by private parties but the land and the memorial were later transferred to the government. There is some evidence that the choice of the cross as the design of the memorial was for a religious reason. The lower courts found a violation of the Establishment Clause and the parties are, in part, seeking to have the Supreme Court re-examine its rules for Establishment Clause cases (which tend to result in very intense fact-specific determinations about the history of a challenged display or practices).
Also on the docket in February is a case about whether the operators of cable public access channels are state actors (and therefore subject to constitutional restrictions). This case should prove interesting because it puts a majority that has rather vigorously supporting Free Speech rights in the position of choosing between competing Free Speech claims.
Just this past week, the Supreme Court indicated that it would consider two appeals from gerrymandering cases (the Maryland case in which Republicans are the challengers focusing on one district and the North Carolina case in which voters in each of the districts are challenging the entire state map) in which the lower courts found for the challengers during its March argument session. Given that the conservatives on the court have previously been somewhat hostile to these claims, the omens are not good. March will probably also feature a racial gerrymander case.
The remainder of the March argument session will be announced later this month (with the April argument session to follow next month). Based on what has already been accepted, the March argument session should include a case on Chevron deference (the doctrine that, in interpreting an ambiguous statute, the courts should defer to the interpretation given by the agency tasked with enforcing the statute) and a case on Auer deference (the doctrine that, in interpreting an ambiguous regulation, the courts should defer to the agency that drafted and enforces the regulation). Many conservative scholars and judges have criticized both forms of deference, and it is likely that, at the very least, the court will narrow the circumstances in which such deference is appropriate.
The April argument session will probably include the cases granted this past week which includes another case involving the First Amendment and copyright registration. Just two years ago, the U.S. Supreme Court struck down the provision allowing the government to decline to register a copyright that disparaged any person or group. The new case concerns the provision that allows the government to reject indecent or scandalous copyrights and trademarks. As in the case from two years ago, there is room for argument on whether the proposed trademark crossed the line, but the Patent Office found that it did. While obscenity has received somewhat less First Amendment protection than other speech, this Court has generally been rather big on extending First Amendment protection. The fact that the Supreme Court took this case suggests that, at the very least, the court will impose a very narrow definition of what trademarks can be rejected under this statute.
