Last week, we took a look at the upcoming Supreme Court Term with a focus on the cases scheduled for the October and November argument sessions.  This week, we take a look at the cases set for December and those with no argument date yet (most likely January) with some comments on pending applications.

The big case on the December docket is Hobbs v. Jackson Women’s Health Organization — the Mississippi abortion case.  Putting the media hype to the side, the technical issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”   Roe and Casey both allow some pre-viability restrictions on abortion.  What they do not allow is a pre-viability ban on all abortions.  The real issue for this case will be how the majority tries to chip away at Roe and Casey to allow more restrictions on abortion.  My expectation is for some plurality opinion written by the Chief Justice or Justice Kavanaugh that makes it likely that the lower courts will nominally uphold Roe and strike down this statute while making it easier for states to regulate abortion in ways that will make it harder for women to get abortions in red states.

There are a couple of cases involving Medicare reimbursements.  One of these two cases involves issues of Chevron deference — the principle that, if a statute is ambiguous, courts should defer to the interpretation made by agency charged with applying the statute.  Conservatives have been chipping away at Chevron deference for many years.  The typical approach has been to use the tools of statutory construction to find that the statute is not ambiguous.  In this approach, Chevron deference is a tie-breaker at the end of the interpretive process, and you rarely get a tie at the end of the interpretive process.

Carson is the latest case involving a claim that a religious institution is entitled to public funding under the Free Exercise Clause.  Here, Maine provides grants that students may use to attend schools run by religious groups, but bars the use of such funds if the school provides religious instruction.  If the Supreme Court finds for the students, the Supreme Court will have reached the point where there is no gap between the Free Exercise Clause and the Establishment Clause.  In other words, unless doing so would violate the Establishment Clause, if a state opts to provide funding to private non-religious groups, it would have to make the same funding available to religious groups.

Typically, when the Supreme Court starts its term, it has granted enough cases to push over into the January argument sessions.  In a perfect world, the Supreme Court would have enough cases granted to fill the January argument session.  The Rules of the Supreme Court give the two parties seventy-five days (forty-five days for the party that lost in the lower court followed by thirty days for the party that won in the lower court) to file their initial written arguments (briefs).  The party that lost in the lower court then gets to file a reply brief.  The rules give that party up to thirty days to file that brief after the prevailing party files its brief, but that time limit is shortened if it runs into the date scheduled for argument.  The reply brief must be filed at least ten days before the argument.  Effectively, the parties only have the full time for briefing if review is granted four months prior to the argument.  For cases granted in the previous term, the parties get the full brief schedule.   But there are only 100 days from the opening conference on Monday to the January argument session.  Because some of the October grants will be argued in January, they will have a shortened briefing schedule.  (The same holds true for November grants that are argued in February, December grants that are argued in March, and January grants that are argued in April.)

Currently, there are three cases in which the Supreme Court has granted certiorari which are likely to be scheduled for January.  (There are two other cases that were postponed last term, but nothing has changed that would cause them to be restored to the active cases.)    One of the three cases involves Medicaid reimbursement.  (The Medicaid law allows the state to seek to recover past expenditures if a participant gains sufficient assets in the future in some circumstances.  Essentially, Medicaid payments are treated as a “loan” to the eligible person.)  The other two cases involve bond in immigration cases.  While these two cases are based on current law, the issue of when immigrants should be detained pending review of their immigration cases is a hot button topic.

Obviously with ten argument slots available and only three cases granted for January, there are a lot of slots to be filled when the Supreme Court starts deciding the petitions for certiorari.  Even forty years ago when the Supreme Court was hearing 100 cases per year (compared to the current number near 70), that still was only a small percentage of applications.  In other word, every year, the Supreme Court turns down cases that arguably merit review.  Looking at the hot topics rather than a specific case, there are always cases claiming that law enforcement officers used excessive force.  In recent years, the Supreme Court has not granted full briefing on these cases, opting instead to dispose of the cases by summary opinions (if review is granted at all).  But some of the justices have raised questions about the current standard,

There are multiple new abortion laws that are working their way up.  My hunch says that the Supreme Court will hold these cases until they decide the Mississippi case and then send them back to the lower courts to take a second look applying the new standards from the Mississippi case.  Similarly, there are several Second Amendment cases which are likely to be sent back to the lower court to apply whatever rule is established in the New York case discussed last week.

There are also several environmental law cases floating through the system.  While these cases often turn on technical statutory issues, the Supreme Court tends to periodically take one of these cases.

On the slightly long shot, there are cases involving “opt out” statutes for mandatory union dues.  Given the current tendency of the Supreme Court to use the First Amendment to hamper unions, a grant is certainly a possibility.  There is also a case involving whether D.C. residents have a right to vote in Congressional elections.  I am doubtful that the Supreme Court will take this case, but it might be an appeal of right.

Of course, the big issue for the term is how quickly the current conservative majority will pull the law to the right.  If the Supreme Court tries to go too far too quickly, the Supreme Court could become an issue in the 2022 Senate election.  The other item to watch is Justice Breyer’s plans.  He has not said anything indicating that he is planning to retire, but he knows that elections are unpredictable.  If he wants to be certain of a replacement that reflects his values, he has to retire before the 2022 elections.  But most Supreme Court Justices like their jobs; so many of them will try to delay retirement as long as possible.