The Supreme Court begins its annual term this upcoming Monday, October 3. Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions). In Part 1, we covered the cases that have been scheduled for argument in October and November. In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday). Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).
Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting. One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).
Moore vs. Harper may be the biggest election law case of the term. The Constitution grants initial power over federal elections to state legislatures. The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments). This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions. In recent years, conservatives have come up with the “independent state legislature” theory. Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules. In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws. This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it.
United States vs. Texas involves a challenge to the Biden Administration’s enforcement priorities for Immigration and Customs Enforcement. Texas (and its coconspirators among other red states) contends that this exercise of discretion is somehow contrary to the law or required formal rulemaking under the Administrative Procedure Act. Needless to say, the position taken by Texas would drastically alter how law enforcement operates in this country, but there are lower court judges that are willing to bend the law for political reasons. Whether the majority of the Supreme Court is willing to do the same on this topic remains to be seen.
At the present time, there are nine cases that are available for the six days of argument in December. Realistically, additional cases could be added from today’s conference. But any case granted after this week will probably have to be assigned to the January argument session. (There are a couple of other cases in which review has been granted, but they are currently on hold and are unlikely to ever be argued.)
It is hard to project what, cases, the Supreme Court will take for review. The Supreme Court only grants review in 1-2% of the cases in which a party has sought review. While some of the requests for review are clearly meritless, there are very few “must” grant review cases. Thus, the below is merely some of the more “interesting” (in the sense of raising significant political issues) of the currently pending applications for review.
Kowall vs. Benson is a challenge to candidate eligibility requirements (specifically term limits). The issue that makes a grant of review more likely is the test that federal courts should be applying to such requirements. Some circuits find that under various constitutional provisions such restrictions are part of the structure of state government and should only be reviewed for a rational basis. Other circuits, based on some ballot access cases, find that these requirements implicate the First Amendment and mandate some stricter form of review. The limits in this case will probably be upheld under any test (which is a reason to not take the case), but clarifying the test is important (which is a reason to take the case).
As always, the current pending petitions for review involve several Second Amendment questions, several cases involving Chevron deference to administrative interpretations of statutes, and several free exercise cases (including those seeking exemptions from civil rights laws protecting LGBT individuals from discrimination). Given the current preferences of the majority, at some point, some of these cases will be granted. But the question is which ones and when.
