It’s that time of year again. October 7 is the First Monday in October meaning that the Justices of the United States Supreme Court will be back in D.C. for another term of arguments. This term is a little bit unusual for recent terms in that — when the Supreme Court had left for the summer — they had already granted review in enough cases to fill the first four (October, November, December, and January) argument sessions. Recently, the Supreme Court has had trouble granting enough cases to fill the first three argument sessions and have had (at most) one or two cases left over for January when they meet at the end of September to begin adding cases.
(For a little explanation of what I mean about argument sessions and filling them. From October through April, the Supreme Court has seven argument sessions. Each session consists of arguments on Monday, Tuesday, and Wednesday — excluding any federal or religious holidays. A “normal” argument day consists of two arguments on two cases. Ech argument is one hour split evenly between the two-sides although time is often allocated to the Solicitor General to express the government’s position. Typically, there is a two-week gap between each argument session except for longer breaks after the December and maybe January session. A Supreme Court case has two rounds of written arguments. The first round is an application to the Supreme Court to take a case — officially called a petition for writ of certiorari. These pleadings have relatively short page limits and are designed mostly to explain why the case is important enough for the court to take. While there are time limits on these pleadings, the Supreme Court is relatively liberal about granting extensions. If the Supreme Court decides to grant review, there is a second round of written arguments on the merits of the case followed by the oral argument. The time limits to complete the second round of written arguments is approximately 105 days or 10 days before oral argument whichever is earliest — and extensions are almost unheard of. Thus, oral argument has to be at least three months after the case is accepted for full briefing and argument — and four is better. So, any case heard in the first three months has to be accepted before the Supreme Court recesses at the end of June, And once the Supreme Court returns, any January cases have to be accepted by the end of the October session, etc. until all of the cases for this year’s term have to be accepted by the end of the January session. Any case accepted after January is for the next year’s term barring an unusual case in which the Supreme Court orders accelerated briefing like what happened last term on the Census case.)
At this point in time, the Supreme Court has issued its argument calendars for the October, November, and December argument sessions. While it has not yet released the calendar for the January session, it is likely that most of the remaining accepted cases will be heard in January (although some add-ons from cases accepted in October is possible). Each of the first three parts of this series will focus on one argument session with the fourth part focusing on the cases left over for likely January argument and possible cases that might be granted for the rest of the term. Any attempt to guess what is likely to be granted is highly speculative. The Supreme Court accepts about 1% of the cases for actual full review. Even weeding out the significant amount of long shot petitions, the strongest cases have — at most — a 1 in 10 shot at being granted review.
So onto the October argument. As noted above, a typical argument session consists of six argument days excluding holidays. And the October argument session has two holidays. This year, Yom Kippur falls on Wednesday October 9 and Columbus Day falls on Monday October 14. So there will only be four argument days in October. (November will only have five argument days due to Veteran’s Day falling on a Monday and January will only have five argument days due to Martin Luther King’s Birthday. The other four months will have a full six argument days.) With four argument days, the schedule for October is highly unusual. Two of the four days feature a third argument (meaning that two will be in the morning and one will be in the afternoon). Additionally, one day will feature only one argument — a consolidated argument with extended argument time.
The Supreme Court will start its term with three cases on October 7 — two criminal case and one intellectual property case. The two criminal cases are a little bit narrow focused for the Supreme Court. The first — Kahler vs. Kansas — involves the insanity defense. Each state has slightly different laws on the insanity defense and the law in Kansas is narrower than most. The issue is whether the Constitution puts any limits on a state narrowing the scope of the insanity defense. The second — Ramos vs. Louisiana — involves the current law on unanimous juries. The last time that the Supreme Court looked at this issue (over 40 years ago) there was a weird split decision. By a 5-4 majority in that case, the Supreme Court thought that the right to a jury trial in a criminal case included the right to a unanimous jury; and, by an 8-1 majority, the Supreme Court thought that right to a jury trial in federal court was the same right as the right to a jury trial in state court. However, because that one justice was part of the 5-4 majority on the right to a unanimous jury, there were five justices who concluded that there was no right to a unanimous jury in a state criminal trial. There are only a handful of states that allow a non-unanimous jury in criminal cases; so the ruling will only directly impact those states. While not particularly interesting to those not working in the intellectual property field, the Supreme Court has recently been granting a lot of intellectual property cases. The current case concerns the process of reviewing the decisions of the Patent Office.
October 8 is the first big day of the term. There will be two arguments arising from three cases. The three cases are the Title VII cases about sexual orientation. The issue is whether the ban on discriminating on the basis of sex bars discrimination against gays, lesbians, and transsexuals. I will have more on these three cases after oral argument.
October 15 features five cases consolidated for one extended argument (eighty minutes total). Theses cases involve challenges to the composition and ability to act of the Financial Oversight Board appointed to manage Puerto Rico’s debt issues. These cases involve whether the members are validly appointed and, if they are not validly appointed, whether there acts should be upheld under the “de facto officer” doctrine. (In simple terms, the de facto officer doctrine upholds the acts of an office even if the person holding that office is not properly serving in that position. This doctrine allows an office to continue functioning even when there is a dispute about who should hold the office.) The challenge to the appointment of the Board concerns whether the authority granted to the Board requires that the members be confirmed by the Senate.
The argument session ends with another three argument day on October 16. The first case on October 16 is Kansas vs. Garcia. This case is a weird intersection between state law and immigration law. Federal law requires, as part of the hiring process, that new employees provide certain documents to provide proof of lawful presence (the I-9 form). Federal law also bars the use of the I-9 documents for any other purpose. The new employee in this case was using a fake identity and falsified documents. The issue is whether the limits on the use of the I-9 documents bars the state from prosecuting someone for identity theft when they use the I-9 documents to help establish the fake identity. The second case is a case on the statute of limitations under the Fair Debt Collections Act.
The final case for October is actually a somewhat notorious case — Mathena vs. Malvo. Malvo was the juvenile accomplice in the D.C. sniper case. After his original trial, the Supreme Court issued two opinions regarding the maximum sentences for juveniles convicted of murder. The first — Miller — barred mandatory “life without parole” sentences for such offenders but allowed such sentences if the court had discretion to impose a lesser sentence. The second — Montgomery — held that Miller applied to previously imposed sentences but also included some passages that arguably refined or established the test to be used to determine when a life without parole sentence was appropriate. The issue in Mathena is whether those additional parts in Montgomery apply to sentences imposed prior to Montgomery. In more precise terms, the question is whether those parts actually modify Miller. (If they do not, then the issue is merely whether Virginia unreasonably applied Miller in upholding Malvo’s sentence. If they do, then the issue is whether Montgomery also applies to sentences imposed before Montgomery. The normal rule is that new Supreme Court decisions do not apply to cases in which the state court decision is final before the Supreme Court issues its opinion.) What adds to the interest in this case is that Justice Kennedy played a key role in the line of cases that concluded with Montgomery, reading the Eighth Amendment as placing significant limitations on punishing juvenile offenders in a manner similar to adults. Miller was a 5-4 decision in which Justice Kagan was the deciding vote. Montgomery was a 6-3 decision written by Justice Kennedy in which Chief Justice Roberts “flipped” his vote from Miller to follow precedent. With Kennedy no longer on the court, this case is the first opportunity to see how Justice Kavanaugh will vote in these types of cases and whether future opinions are likely to expand on this line of cases or restrict them.
Obviously, the biggest cases of October is whether Title VII covers discrimination based on sexual orientation. With a decision likely in the Spring of 2020, that decision will undoubtedly play some role (at least for some voters) in the 2020 elections. Long-term, the issues related to Puerto Rico will continue to be part of the national political debate as long as Puerto Rico is only a territory and neither an independent country nor a full-fledged state.
