In last week’s post, we covered the cases that already have argument dates scheduled for October and November.  In this week’s post, we cover cases which the Supreme Court accepted this past Spring.   As of today, the Supreme Court has not yet released its December argument schedule.  Thus, we do not know which of these cases will be heard in December and which might be held over for January.

The Supreme Court tends to schedule cases in the order in which they were accepted for review.  However, all of the cases that might be scheduled for December or January were accepted for review in the last three weeks of the old term (June 17, June 24, and July 2).   So this post will go in order by the date on which review was granted.

From June 17, only one case remains to be set for argument.  (The other cases will be heard in November.)  Kousisis vs. United States is a criminal case, but it implicates two issues of political significance.  The first is that this case is a fraud case involving government benefits.  The harm to the government is that the false statements allowed defendants to get a government contract over a potential alternative bidder.  But there is no indication that the defendants failed to properly fulfill the core of the contract.  In recent years, the Supreme Court has been pushing back against broad reading of fraud statutes and have not been inclined to allow charges based on noneconomic harm.  The second is that the fraud related to minority participation in the contract.  The business in its bid claimed to meet the goals for minority participation but, on closer analysis, the proposed minority participation was a mere shell to create the illusion of minority participation.  Again, the Supreme Court has been pushing back on such affirmative action programs in recent years.  This case presents another opportunity to minimize the role of attempts to assure minority businesses have the chance to participate in federal contracts.

From June 24, there are six cases.  The big case is United States vs. Skrmetti.  By the title, that might seem like a criminal case.  It isn’t.  It is the challenge to Tennessee’s laws interfering with the medical care of transgender minors. Under the Tennessee law, it is illegal to provide medical treatment to a transgender minor that would help them live as their identified gender or to ease the discomfort caused by identifying as a different gender than their birth gender.  Under governing medical standards, the appropriate treatment depends on the age and circumstances of the patient.  For older (i.e , those going through or post puberty) minors, therapy can include hormone therapy.  The key issue for this case is whether a law that only restricts such therapies for transgender children (but allows them for cisgender children) implicates a “suspect” classification for the purposes of equal protection analysis.  The lower court found that it did not and, therefore, only applied rational basis analysis (which basically means any reason is enough to uphold the law).  If the Supreme Court finds that laws that treat transgender children different invokes a suspect classification, then a higher level of scrutiny would apply (and the law would probably be struck down).

Republic of Hungary vs. Simon involves the Foreign Sovereigns Immunity Act — the statute that defines when and for what types of claims a case can be brought in U.S. courts against another country.  This appeal represents the second time that this case has ended up in the Supreme Court.  To simplify the issues, one of the circumstances in which a case can be brought in the U.S. is if the foreign government illegally (under international law) seized property.  There must be some connection between the seized property and the U.S.  The question is whether — when funds from the sale of the seized property are commingled with other government funds — a subsequent use of such commingled funds to purchase property in the U.S. is enough to allow a U.S. case.  As always in these cases, there are some foreign policy and diplomatic relationship ripples from allowing the case to proceed.

Seven County Infrastructure Coalition involves what impacts must be included in environmental impact statements and how direct those impacts must be.  While technically this case is about the proper interpretation of the relevant statutes and regulations, whether the Supreme Court reads those requirements narrowly or broadly will dictate how much information goes to permitting agencies and the public before projects which might have significant environmental impacts are allowed to proceed.

Stanley vs. City of Stanford arises under the Americans with Disability Act.  The question involves whether claims related to employment related benefits became moot when they employee left his job for reasons that are unrelated to the Americans with Disability Act.

While it is likely that all of the remaining cases granted on June 17 and June 24 will be heard in December, the scheduling of the cases granted on July 2 is less clear.   One of the cases from July 2 was set for argument in November meaning that there are three cases that fall into this category.  (Technically, there are four cases, but two of the cases are being consolidated.)  If the Supreme Court decides to do two cases per day, all of these cases could be heard in December.  But it seems equally likely that these four cases will be the first week of argument in January.

Two of the remaining cases from July 2 could be politically significant.  Paxton involves the efforts of Texas to regulate on-line pornography to assure that minors are unable to access it.  Aside from the unusual fact that a state is trying to regulate the internet, the issue in the case is the standard that applies to such regulations.  When the federal government tried to impose certain requirements on “adult materials,” the U.S. Supreme Court found that such regulations were content-based and, as long as the content was not obscene (as the courts have interpreted that term), such regulations were subject to heightened scrutiny.  The lower courts somehow found that these regulations were content-neutral.  Given that the U.S. Supreme Court has had issues with similar federal regulations, it seems likely that Texas will lose here.

The other case involves the FDA and the manufacturer of a proposed e-cigarette.  The FDA rejected the application for approval of that product.  While the case is likely to focus on the technicalities of the approval process and the standards for approval, there are two aspects of the case that will have potential political resonance.  First, those standards apply to other products including food additives and medications.  As such, there will be a debate about consumer protection vs. allowing useful products into the market.  Second, there is the growing issue about what to do to regulate e-cigarettes.

While not currently before the Supreme Court, the Trump campaign has telegraphed its intent to litigate the election results if the American people act rationally and Trump loses.  The last time, the Supreme Court declined to accept any of the cases.  But, if the Supreme Court feels differently this time, such a case could get shoehorned into the December argument session.

As the number of cases show, the Supreme Court currently does not have any cases available for arguments after the first of the two weeks of the January argument session.  The remaining days in January as well as the February, March, and April argument sessions will be filled with cases accepted over the next four months. Next week’s post will engage in the very speculative task of looking at what cases might be chosen to fill those slots.