We are three weeks away from the First Monday in October which means that the Supreme Court will soon be back in session.  Putting to the side the continued questions about the ethical failings of certain ultra-conservative justices (who unfortunately would never be convicted by the Senate even in the unlikely event that the more ethically-challenged Republican caucus in the House would actually allow articles of impeachment to pass), that means time to look ahead to the politically-significant cases on this year’s docket.

For a brief refresher, during its annual term, the U.S. Supreme Court sits in seven argument sessions.  Each of these argument sessions lasts for two weeks.  After five of these argument sessions, the U.S. Supreme Court takes a two-week break (with longer breaks over the holidays and after the January argument session).   Typically, for ease of convenience, the sessions are referred to as the October, November, December, January, February, March, and April sessions even though some sessions will begin in one month and conclude in another month (like the November session this year which will begin on October 30).  During the argument session, the Supreme Court hears oral arguments on Monday, Tuesday, and Wednesday.  If one of those days is a holiday, that day is skipped.  There is no firm rule (as the Supreme Court will make adjustments if the docket requires it), but a “full” docket will have two arguments in the morning on each day.  Subject to adjustment if a third party (usually the Solicitor General if a case involves a federal statute) is permitted to argue, the party that lost below gets thirty minutes to argue and answer questions followed by thirty minutes for the party that won below followed by a brief rebuttal argument by the party that lost below.

On the Friday before the argument session, the justices meet to review pending petitions for review and to finalize any opinions to be released the following week.  There are similar conferences on the Fridays on the weeks in which there are arguments at which the justices also discuss the arguments that were heard that week and take an initial vote on those cases which is used to assign a justice to write an opinion.  On the Mondays of argument week (and the Monday after the argument week), the Supreme Court releases on order list announcing the decision on pending petitions for review.   In the early part of the term, there might be a separate list announcing the cases accepted for review on Friday to give the parties additional time to start preparing their briefs (the written arguments on the case) as the time schedule gets rather tight for completing the briefs before the oral argument.  Because of those time limits on the written briefs, the January argument session is effectively the cut-off date for a case being heard during the term.  If review is granted after January, the case is held for the following term.  Thus, the cases that we are about to discuss are those that the Supreme Court granted review on between February and June.  (On rare occasions, as it did for one case this year, the Supreme Court may add a case during its summer recess, but the norm is that — other than emergency matters — the period between July 1 and October 1 is quiet.)  The cases that they will accept (some of which may be discussed in Part III of this preview) in the next several weeks will be argued in the second half of this term.

At the present time, the Supreme Court has accepted twenty-five cases for this year’s term.  But, there are two sets of two cases each that have been “consolidated” for argument meaning that they will only take up twenty-three argument slots.  (Typically, this occurs when two petitions present the same issue for review.  In that circumstance, the Supreme Court can opt to accept one case and hold the other pending that decision or grant review on both cases but order that they be heard together.  A classic example of a consolidated case is Brown vs. Board of Education which was actually several cases from several states involving challenges to school segregation.)  And one case has already been dismissed, meaning that there are twenty-two argument slots for the current set of cases.  At the present time, the Supreme Court has announced its October and November argument schedule.  This post will focus on those cases, and Part II will focus on the cases that have been granted but do not yet have a date set for argument.

There are six cases scheduled for argument in October.  (With Monday, October 9 being a holiday, a full docket would have been ten cases, but the pattern in recent years has been to have less than full dockets.)  The first big case in October could be the biggest case in recent history — which is saying a lot.  That case is Consumer Financial Protection Bureau vs. Community Financial Services of America, Ltd.  The issue in this case is that, like a lot of other agencies, the CFPB is funded by dedicated fees rather than an annual appropriation.  Trying to avoid having to comply with some of the regulations adopted by the CFPB, Community Financial Services alleges that this method of funding is unconstitutional and that, as a result, all regulations adopted by the CFPB is void.  It should surprise nobody that this case from the notorious Fifth Circuit which is the foremost practitioners of conservative judicial activism in the country.   If the Supreme Court wants to punt this issue, it is an easy opinion to write — namely the validity of the funding is separate from the validity of the actions taken by the agency and the method for funding either can only be challenged by Congress or is a political question for Congress and the President to decide.  If the Supreme Court were to find in favor of Community Financial Services, that decision would call into question all nondiscretionary spending, including entitlements such as Social Security.  Enough has been written about this that only the most insane justice would dream of going there, but if the more normal conservatives were to join in this attempt to quash entitlements, the political response would be devastating — all but guaranteeing a landslide as Democrats ran against a lawless Supreme Court with pledges to appoint additional justice to restore constitutional order.

On October 5, the Supreme Court will hear Acheson Hotel.  This case involves a private “tester” — a person not actually seeking to use a business — who is calling to see if a business is complying with the relevant law.  In this case, the law is the Americans with Disabilities Act.  The hotel contends that, because the tester is not actually planning to sue the hotel room, that they lack standing to sue the hotel for its noncompliance and that only somebody who actually intended to use the hotel (but for the failure to provide an accommodation) or the appropriate government agency could file this action.  This argument has some legal merit, but the ability of private groups to use testers in this way makes it easier to enforce anti-discrimination laws.  Otherwise, enforcement depends on a would-be customer being offender enough to sue or a government agency having the resources to go after this particular business, and limited resources of government agencies means that some businesses will get away with discrimination if the primary means of enforcement is government action.

The last case from October is a redistricting case from South Carolina.  The decision by the District Court found that the lines drawn by South Carolina violated the Equal Protection Clause by discriminating on the basis of race.  (Unlike some of the other southern state, the numbers in South Carolina do not support an additional minority-majority district, but the legislature carefully drew the lines between the First, Sixth, and Seventh districts to pack and crack minority voters in such a way that assured that Democrats could only win the Sixth District.)  The issue in this case is whether the trial court properly applied the law in finding an Equal Protection violation.

There are four big cases in November.  The first two, to be heard on October 31 involves how the First Amendment applies to “official” websites and social media accounts and when government officials can selectively decide what users can post comments on such accounts.   There are lots of legally interesting nuances of First Amendment law including when something becomes a public forum that are implicated by these cases.  Given the rise in social media accounts, and the fact that the justices are not noted for their tech savvy, this case will play a significant role in the use of social media by government offices going forward.

The next case — to be heard on November 1 — involves the recurring issue of the interplay of the First Amendment and copyright law.  In this case, one of the provisions of copyright law bars the use of a person’s name in a copyright without that person’s consent.  The issue is whether the First Amendment requires an exception for political speech — here critical speech — about a public official.

The biggest case for November will be heard on November 7.  That case is Rahimi.  This case is the first time that the Supreme Court will hear a Second Amendment issue since Justice Thomas’s opinion dictating that trial courts (and lower appellate courts) facing a challenge to a statute restricting gun rights had to search the (exceedingly poor and contradictory) historical record to determine if — when faced with single shot guns that were very inaccurate — the framers imposed a restriction similar to the one imposed by current laws (dealing with guns that can discharge multiple rounds without reloading that are very accurate).  The particular law in question involves the ban on people subject to an order of protection related to domestic violence from possessing firearms.  Again, no surprise, the Fifth Circuit, while noting some historical support for restrictions on “dangerous people” possessing firearms found that people subject to orders of protection were different enough from the type of people subject to such restrictions in the 1780s that the restriction was unconstitutional.  As this summary should imply, I find the test created by Justice Thomas is unworkable in practice and is merely a fig leaf for judicial activism.   I would be shocked if the Supreme Court immediately comes to its senses and creates a new framework, but there are a lot of similar cases on similar types of restrictions (different grounds for disqualifying a person from owing a gun) that are pending.  The issue is when, not if, the Supreme Court realizes that the test seeks to compare apples and oranges and they need to revert to a more normal standard.

Between October and November, we have thirteen cases to be argued.  That leaves nine cases for December (and January).  Those nine cases will be the subject of Part II next week.