As noted in Part I, the Supreme Court has yet to issue the calendar for its January argument session.  However, for the first time in several years, the Supreme Court has ten cases left over after the December argument session; so there are enough cases already granted to fill the five days of argument in January 2020.  There is a chance that the Supreme Court might bump some of these cases to one of the later argument sessions, but — for each of these cases — it is more likely than not that they will be heard in January.

Among the cases set for argument, you have the following issues:  1) can the beneficiary of a pension plan seek relief for misconduct by the plan managers without first proving that they have suffered actual loss; 2) whether changes to the Foreign Sovereign Immunities Act (governing when foreign governments can or can’t be sued in U.S. courts) are retroactive; and 3) whether federal employees claiming that the federal government discriminated against them due to age must — similar to private employees — prove that age was a “but for” cause of the adverse employment decision.

There are three potentially big cases for January.  First, there is Kelly vs. United States.  This is the “bridgegate” case from New Jersey.  The ultimate issue is whether a public official who uses false statements to create the pretense that their order to employees is legal is guilty of defrauding the government (by wasting public resources).

Second, there is Espinoza v. Montana Department of Revenue.  This case is the latest in the anti-Blaine amendment cases asserting that the Free Exercise Clause trumps state efforts after the Civil War to enshrine Super Establishment Clauses (so called “Baby Blaine Amendments”) by barring state aid to religious institutions.   The particular issue in this case involves a state court invalidating a state program giving aid to private school students because the program authorized aid to students attending religious schools.

Finally, there is one holdover case from the 2018-19 term — Sharp vs. Murphy.  The tiny issue in this case is whether the inmate’s sentence and conviction stand.  The big issue is the reason why the inmate managed to get the Tenth Circuit to set aside his conviction — his claim that half of Oklahoma is still a reservation, meaning that (as a member of one of the tribes granted those reservations) his case should have been brought in federal court rather than state court.    This general topic has been growing theme in recent Supreme Court cases — trying to reconcile a legal system which has often ignored the treaties that the U.S. made with various native tribe with the actual promises that were made in those treaties.

Besides these cases, there are a lot of explosive cases that have arrived over the Summer.  We should start learning in about a week which of these cases will be heard.  On the continuing war on unions and working class Americans, we have Miller vs. Inslee — the latest conservative attempt to undermine collective bargaining rights using the First Amendment rights of dissenting employees to dismantle collective bargaining units.   On the attempt to give religious groups rights that do not belong to other groups, we have Archdiocese of Washington vs. Washington Metropolitan Area Transit Authority, in which the Archdiocese of Washington asserts that the decision of the local Transit Authority to not accept any advertising (positive or negative) about religion violates the First Amendment rights or the rights under the Religious Freedom Restoration Act of religious groups.

Finally, and perhaps most importantly, there are several cases involving abortion rights and restrictive rights that have petitions pending.  Included in these cases are one in which the Supreme Court has already granted a stay to the abortion clinics after an unfavorable ruling by the Fifth Circuit.  While it is possible that the Supreme Court might be able to issue a per curiam opinion reversing the Fifth Circuit on the standard of review (usually on appeals, appellate courts accept the factual findings of the trial court and, arguably, the Fifth Circuit ignored the findings of the trial court that supported its decision to invalidate Lousiana’s extremely restrictive abortion laws that resembled the Texas laws that the Supreme Court struck down) and merely reaffirming the most recent decision, the number of restrictive statutes being passed in red states makes it highly unlikely that the Supreme Court will bypass abortion for much longer.  EDIT — 10/5/19 The United States Supreme Court decided to grant full review on the Louisiana abortion law.  The Supreme Court granted review on both the clinic’s petition and Lousiana’s cross-petition.  The case will probably be heard in February meaning a May or June opinion.

All of these case will be heard and opinions issued against the backdrop of presidential elections.  The chance to end a 40 year conservative monopoly on the Supreme Court was lost in the 2016 elections.  Democrats need to win the White House to keep the current 5-4 balance and keep the hope alive that, in individual cases, one conservative can be convinced to hold the line against a desperate sprint away from the Constitution in the name of a far right agenda.  The decisions in these cases will play a key role in determining how significant an issue the Supreme Court will be in November 2020.  We know that it is going to be crucial for the far right who are still gloating on the coup that they pulled Moscow Mitch’s help in 2016.  The question is will progressives get the message that we can’t afford to give Trumpkins the opportunity to replace even more justices.