In this last part of our Supreme Court preview, the topic shifts from the cases that will definitely be heard this year to the cases in the pipeline.  The U.S. Supreme Court receives around 5,000 petitions for review every year, but they only grant review in approximately 60 cases per year.  Now, some of those 5,000 petitions are clearly frivolous and have zero chance of being granted.  But, even eliminating the clearly delusional petitions, that translates into something like one petition out of seventy petitions being accepted for review.  So any discussion of what cases might get full review is very, very speculative.

Now, we know that some cases will technically be heard.  There is a very limited category of cases that have direct appeals to the U.S.  Supreme Court.  But that does not mean that the Supreme Court grants full merits briefing and argument in all of those cases.  Instead, the U.S. Supreme Court often simply issues a short opinion or order affirming the trial court decision based on the initial pleadings of the parties.  For example, we know that Alabama wants the Supreme Court to take another look at their redistricting case now that the three-judge panel has held that their second attempt at redistricting failed to remedy the previous violation.  The easy decision of the U.S. Supreme Court is to reject this effort, but they might choose to wade back into this area.

So what seems likely?  The first thing that is almost certainly the case is that the U.S. Supreme Court will take a good chunk of cases from the Fifth Circuit and the Ninth Circuit.  There are two reasons for this.  First, these circuits are just big.  The Ninth Circuit is both big geographically and in population (including the states of Arizona, California, Oregon, and Washington).  The Fifth is not as big geographically but it does include Texas.  Second, both courts are somewhat politically lopsided which has made them the “go to” circuits for people who are shopping for a friendly court for an ideological case.  So the Fifth Circuit is likely to issue opinions which are too conservative even for this bunch of justices, and the Ninth Circuit is likely to issue opinions which are too liberal for this Supreme Court.

Second, there will be some First Amendment cases.  This topic has been a favorite of the current batch of justices, and that is reflected in the high profile petitions that this Court has gotten.  At the top of the list of cases is a set of three cases from Florida and Texas (including cross-appeals in the Florida case) related to the laws passed by those states controlling the right of website owners to moderate posts on their websites (think Facebook and X).  Obviously, this topic is very politically sensitive involving the rights of “publishers” to choose what content they publish against claims that these companies are engaging in censorship.  Other potential First Amendment claims involve:  1) whether university investigations of hate speech and potential discipline for such speech chill free speech; 2) attempts to reopen the topic of buffer zones around abortion clinics; 3) various cases involving allegations that certain interest groups engaged in deceptive conduct to gain access to “target” facilities for the purpose or recording and then disseminating what they observed about the opposing side’s activities (some of these claims involve abortion clinics and others involve animal testing facilities); 4) the validities of New Jersey’s restrictions on the content of candidate’s ballot statements (New Jersey allows candidates to include a short statement on ballot materials, but there are some restrictions on the content); and 5) the validity of state bans on conversion therapy;.  Now, the U.S. Supreme Court is not likely to take all of these cases (and there are some other First Amendment cases which seem less likely to be granted than others).  My hunch is that we will probably see at least one of the “workplace protection” cases will be granted since there seems to be a split with some cases favoring the “investigating” group and others favoring the “target” group.  Given prior cases, the conversion therapy ban seems to be a likely grant to as there are other variations (with some laws actually banning the medically-preferred therapy) around the country and it seems unclear where this court is drawing the line between appropriate regulation of medical practice and regulations which impinge on the speech of providers.

Of course, there are other topics out there.  As noted in prior posts, there are already cases on guns pending, and we could see an additional case on whether current law can be read as banning “bump stocks” (devices that allow users to effectively convert legal semi-automatic weapons into the equivalent of automatic weapons).  There is also the Fifth Circuit decision partially upholding the frivolous challenge to mifepristone (the safest and most commonly used method of medical abortion).  In addition to the Alabama redistricting case, there is a case from Arkansas in which Arkansas prevailed in front of the three-judge panel.   There is a case about the ability to court-martial retired military personnel.  Lastly, there is a case about whether certain aspects of rent control laws operate as an unconstitutional taking under the Fifth Amendment.  While not an expert on military justice, the court martial of retirees seems to be the type of question that would interest the Supreme Court.  It seems like, as much as they would like to avoid it, the U.S. Supreme Court probably has to take the mifepristone case.  And this Court seems intereted in Takings Clause case (but less so than they used to be).

But ultimately, these are just guesses.  Our first hint at the type of cases that we will be seeing heard in January and February will come later this week.  The Supreme Court will hold its opening conference on Tuesday.  This conference is known as the “long conference” because, for the most part, other than emergency requests for relief, this Court has not considered any new petitions for review since the end of June. As such, there are three months of cases to consider and the docket of cases for consideration at this conference tends to be three or four times longer than any other docket.  It is likely that before the end of the week, we will get a list of six to ten cases that have been accepted for full briefing.  And, of course, the docket never ends.  Every week sees new petitions filed.  Some of the cases that will be accepted in January will come from petitions filed on cases that the lower courts decided in June or July which are not even on anybody’s radar.

As always, the big question will be how the justices will balance their desire to do the right thing (however they define the right thing) against the desire to avoid making the Supreme Court the center of the upcoming election.  This internal debate is always a hard one.  If the justices are overly concerned about public reaction, it would paralyze their ability to do their job.  But, at the same time, you do not want to move too far too fast because the backlash could limit your ability to do more in the future.  We will see how much this Court feels burned by the reaction to Dobbs and opt to have a quiet term, and how much they decide to go full-speed ahead and hope that the Democratic majority that such conduct might create will not turn their attention on fixing the Supreme Court.