We are three weeks away from the start of the new Supreme Court term. While the Supreme Court (specifically Chief Justice john Roberts) tries to present itself as outside of politics, the reality is that some members of the Supreme Court encourage politically controversial cases. Even without such efforts, courts have become the first resort for people who do not like political decisions.
As of this point in the year, the Supreme Court has announced the cases that it will be hearing in its October and November argument sessions. It has also taken some other cases for argument, but it has not yet scheduled them for argument. (More on how argument works and how cases are taken are in an “appendix” at the end of this post.)
The first potentially controversial case of the term is the “ghost guns” case — Garland vs. VanDerStok. The issue in this case is whether the regulations that the ATF has proposed for ghost guns (guns which are assembled from parts by the user) is consistent with the federal statutes on firearms. As we have seen last year with the bump stock case and others, the Supreme Court has taken the position that it will determine whether proposed regulations are consistent with statutes and it tends to strictly interpret the firearms statutes in a way that makes it hard for ATF to keep pace with changes in the gun market. This case will be heard on October 8 — the second day of the term.
The following week, there are several cases that could be interesting. Bayouraks is an immigration case concerning the right to judicial review. To oversimplify matters, Congress has restricted judicial review in immigration cases with some types of decisions being subject to review and others not being subject to review. In this case, the immigrant was granted a visa which was later revoked on further review of the initial application. If the immigrant had never gotten a visa, he could have sought review of the denial of the visa. The issue is whether he gets a review of the decision to revoke the visa when the visa was revoked based on the alleged error in granting it rather than a post-grant change in status.
Horn involves civil RICO. RICO covers — both criminally and civilly — certain acts by “corrupt organizations.” On the civil side, if fraudulent acts cause economic harm, a party can recover three times the amount of damages if they can prove such harm. In this case, the alleged fraudulent acts related to medical marijuana and its benefits. As a result of these alleged misrepresentations, the plaintiff claims that he had damages due to the impact on his health. The issue in this case is whether the damages from physical injury qualify as economic harm or is economic harm limited to business losses. This case is a potentially very big deal in the health care industry. There are a lot of questionable products in the health care industry. If treble damages is limited to reimbursement for the purchase price of these products, RICO suits will mostly be class actions with little benefits to consumers who only spend a little money on the product before discovering that the side effects are significant. If the individual consumer can also recover the damages caused by the personal injury, individual plaintiffs are more likely to bring claims against these underregulated companies.
The last politically significant case from October is an environmental law case involving municipalities and the EPA. The issue is how specific permits regulating discharges under the Clean Water Act must be. The EPA wants to be able to sue broad language and the municipalities (running facilities that discharge wastewater) want the permits to use specific language on how much of certain pollutants can lawfully be discharged.
The cases set for November mostly involve technical legal issues which do not appear likely to generate much political or media interest.
In short, the main theme — at least from the arguments in the run up to the election — seems to be on the reach of federal statutes and the current effort of the majority of the Supreme Court to rollback the administrative state. Given that Republicans have made it an ongoing project to overstate the amount of “redtape” and how difficult regulations make things for business, none of these cases are likely to move the needle with the public that much. Of course, it is the regulations which protect the average person from injury, but people tend to not recognize the background rules that make them safer (or that could make them safer if implemented) as the impact is indirect.
We should have an announcement about the December cases in the next week or so. Those cases and any cases which might be held for January will be in Part II of this preview next week. Either in that part or in a Part III, I will speculate (and its always speculation) about the cases scheduled for consideration for review and which ones might be taken.
APPENDIX
Here is the annual refresher for nonlawyers on how the Supreme Court operates.
The Supreme Court, generally speaking, has three types of cases. First, there are the original jurisdiction cases. These are mostly disputes between states and mostly concern things like boundaries and water rights (although you occasionally get a frivolous political case like this summer’s attempt by Missouri to turn Trump’s criminal case in New York into a dispute between states). Because the Supreme Court is not structured to be a trial court, it will typically appoint a special master to hear the evidence and propose a remedy. For the most part, these cases only end up on the “argument” docket if the states disagree with the report of the special master. These cases rarely matter to anybody who does not live in the states with the dispute.
Second, there are direct appeals. Direct appeals are limited to cases from multi-judge panels which are most common in voting rights act cases. While the Supreme Court has to “take” direct appeals, that does not mean that it has to hear arguments in the case. The Supreme Court can summarily dispose of the appeal by a simple order affirming the case or a “per curiam” (i.e. unsigned opinion) reversing if the legal issues are clear. Typically, there are no more than one or two direct appeal cases on the argument docket per term.
Finally, there are discretionary appeals. If a party loses in the U.S. Court of Appeals, they can file a petition for certiorari asking the U.S. Supreme Court to take the case. Similarly, a party that loses in the highest court of the state (in most, but not all, states, the state Supreme Court) can file a petition for certiorari. For this purpose, since most state high courts are discretionary courts like the U.S. Supreme Court, the denial of a request for review by the state high court counts as losing at the state high court. A petition for certiorari is limited to questions of federal law and the alleged misinterpretation of state law is not a basis for review (which is why most cases come from the federal court system).
On a petition for certiorari, the U.S. Supreme Court has four possible options. The most common is to simply deny the petition and let the lower court ruling stand. The second somewhat common option is what is commonly referred to as grant, vacate, and remand (or GVR). The grant part is that the Supreme Court officially takes the case. The vacate indicates that, upon taking the case, the Supreme Court immediately disposes of the case by setting aside the lower court decision. The remand indicates that the Supreme Court sends the case back to the lower court for further action. The GVR cases tend to fall into two categories. The first category is what can be characterized as cases raising a similar issue to a case recently decided by the Supreme Court. The lower court would have decided its case prior the U.S. Supreme Court issue its decision. The U.S. Supreme Court sends these cases back for the lower court to reanalyze in light of that Supreme Court decision in a related case. The second category is cases that became moot between the lower court decision and the U.S. Supreme Court reviewing the petition for certiorari and, typically but not always, the GVR is to wipe out the lower court decision and have the case dismissed as moot (with establishing a precedent for future) cases. Denials of certiorari and GVRs represent almost 99% of the decisions of the Supreme Court on certiorari petitions. Out of about 6000 petitions, approximately sixty per year have one of the two other possible dispositions.
Of the remaining two dispositions, the least common is a “summary reversal.” A summary reversal is essentially the U.S. Supreme Court slapping down the lower court. It is typically done by a per curiam opinion that stripped of legal niceties is saying “Hey, dummies, this is the rule that we previously stated. You did not follow that rule. Start following the rule.” These opinions tend to be short and are often released with the other orders disposing of cases by denying certiorari or issuing GVRs.
The last disposition is granting certiorari and placing it on an argument docket. Because, prior to the argument, the parties (and interest groups) get to file written arguments. Typically, at least three months pass between the grant of certiorari and oral argument.
Turning from the mechanics of taking a case to the way that the Supreme Court handles orders and granted cases. Officially, the Supreme Court term lasts twelve months — from one first Monday in October to the next first Monday in October. Unofficially, the real term lasts from the last Monday in September to approximately July 4 with a summer recess from July 4 to the end of September.
During the term, there are seven argument sessions during which arguments are heard with the last two months of the unofficial term being reserved for wrapping up opinions. Typically, an argument session is a four-week cycle. On the Friday of week zero, the Supreme Court meets in a conference. At this conference, the Supreme Court discusses which cases may merit a grant of certiorari. (While all cases are tentatively assigned to a conference, if no justice think a case merits discussion, it is denied without further discussion). They also discuss whether any opinion is ready to be reissued. A justice can request that the court “relist” a case to a further conference if they want to take a closer look at the case. And sometimes cases are “rescheduled” to a future conference (typically if there are other petitions related to the same issue which are not yet ready to be discussed). On the Monday of week one, the Supreme Court will issue an order list which will typically contain some procedural matters, and list the cases that were denied at the Friday conference. This list may be accompanied by opinions related to the order (a justice explaining why they thought that a case which was denied should have been granted or why there was some procedural reason why a case was denied even though the issue raised by the case would warrant consideration in a case without those procedural issues). And, as noted above, the order list also includes opinions regarding summary reversals. Depending upon the argument session, the Supreme Court may issue a separate order list on Friday of week zero (typically prior to Mid-January) listing the cases which were granted or include those cases on the Monday order list (typically after Mid-January). There are two exceptions to the Friday of week zero for the conference. Typically, the week zero conference (the opening or “long” conference) for the October session is taken up earlier in the week. And, often, the Friday of week zero for the December conference is the Friday after Thanksgiving, and the U.S. Supreme Court will schedule that conference for earlier in the week or for the prior week.
During week one. the Supreme Court will hear argument on Monday, Tuesday, and Wednesday unless one of those days is a federal holiday or a significant religious holiday (Rosh Hashanah, Yom Kippur, the first day of Passover). If the Monday is such a holiday, the order list is released on Tuesday. On the Friday of week one, there will be a conference which will again discuss the pending petitions for certiorari and the cases heard that week. On the cases that were heard that week, there is usually a tentative vote which impacts which justice gets assigned the responsibility of writing the majority opinion.
Week two resembles week one with orders on Monday, arguments on Monday, Tuesday, and Wednesday, and a conference on Friday. The orders from the week two conference are issued on the Monday of week three. The justices are then off until the Friday of week four at which time they hold their conference for the following argument session, and the process begins again.
While most of the argument sessions are four-week periods, there are two exceptions — the “December” argument session and the “January” argument session which have two more “recess” weeks added in the middle. The use of months to designate argument sessions is somewhat rough. If the First Monday in October is October 1-3, the November argument session actually begins in October. And, unless the First Monday in October is October 6 or October 7, the December argument session begins in November. On the flip side, the February argument session can run into March and the March argument session can run into April.
Depending on the justice who gets the opinion (simply put some are quicker writers), opinions deciding argued cases typically take two to four months to get. If there are disagreements between justices resulting in multiple opinions, it can take longer (which is why the most controversial cases tend to get opinions in May and June). But the Supreme Court tries to leave town before the Fourth of July. (And even when the court is on “recess,” there are emergency applications which need to be resolved quickly.) After the end of the four weeks of the April argument session, the Supreme Court in recent years has moved their weekly conferences for the rest of the term to Thursday rather than Friday. Orders from the weekly conference are still issued on the following Monday. Opinions can be released on any day. During argument sessions, it is more likely that the opinion will be released on an argument day before the first case of the day. In recent years, after April, the Supreme Court has tended to release opinions on Thursday prior to the weekly conference. But all of that is tendencies, and it is possible that an opinion could be released on any day of the week.
It is harder to say what is typical as to the number of cases in an argument session. Thirty years ago, the Supreme Court was granting enough cases to have two cases each morning on argument days and one or two in the afternoon. In recent years, afternoon arguments have been rare, and there have been argument days with only one case in the morning. There are thirty-nine argument days currently scheduled for this term which would mean seventy-eight cases if there were two cases per day. At this point, there are nine cases for October (on five argument days) and seven cases for November (on five argument days). There are twelve cases available for December (on six argument days) but some of those cases might be held for January depending on how many cases are granted over the next couple of weeks. In the past years, there have typically been 55-60 arguments meaning that, on slightly more than half of the argument days, there is only one argument.
