This post is always the speculative part of the term preview.  The Supreme Court only grants review on about 1% of the applications that it receives.  Our legal system is based on the principle that courts are always open to anybody with a legitimate case.  In practical terms, that means that anybody can file a case and that courts sort out the clearly meritless cases after they are filed.  And the Supreme Court certainly gets a significant number of applications from people who “want to take their case all the way to the Supreme Court” even though the lower courts clearly applied current law correctly and there is no good argument for Supreme Court review.  But even eliminating those cases, there are still a large number of applications that raise issues that deserve to be decided by the Supreme Court.

In practical terms, the Supreme Court is looking for the “right” case to present an issue.  The Supreme Court has, in recent years, gotten better at screening out cases that have procedural issues that might prevent the Supreme Court from reaching the “merits” of the issue raised by the “questions presented” part of the application for review.  The application process means that (at least after the early October conferences) the Supreme Court considers accepting review of cases approximately 5-8 months after the decision by the lower appellate court.  That means that the cases to be heard this year involve lower court decisions that have already been made.

Among the cases that we should learn about in October are a pair of cases involving Uber and Lyft.  Both companies have agreements with their drivers requiring arbitration of disputes.  Under the Federal Arbitration Act, those contracts are valid and enforceable.  California, like many states, have laws that give the state government the power to enforce minimum wage and overtime laws.  The issue presented in those case is whether those state laws allowing the government to take action to enforce the employees right to additional compensation is a valid way to get around the arbitration requirments.

There is a case arising from Michigan involving public funding of religious schools.  Michigan. like many states, limits funding of private schools.  This case differs from earlier cases in that the state law does not distinguish between secular and religious private schools.  However, the challengers claim that the original law was motivated by an intent to discriminate against religion and that original intent is not dispelled by the recent rejection of an attempt to repeal that law.  Aside from trying to incorporate religion into the Equal Protection clause, this case represents the latest opportunity for the Supreme Court to interpret the Free Exercise Clause in a way that requires states to violate the fundamental purpose of the Establishment Clause.

On the abortion front, there is a pending application seeking to have the Supreme Court overrule its precedent allowing states to create a buffer zone around abortion clinics.  It looks like the Supreme Court will not consider this application until after the election.  The hostility of this Court to abortion and the recent trend of an expansive reading of the Free Speech Clause suggests that there is a good chance that the Supreme Court will accept this case, especially if Donald Trump wins the election or the Republicans have control of either the House or the Senate.  If there is a Democratic trifecta, the majority may think twice about taking this case to avoid giving further encouragement to Democratic proposals to reform the Supreme Court.

On the gun front, we are only a handful of months from the U.S. Supreme Court upholding the federal law banning those who have an order of protection from owning guns.  In the immediate aftermath of that decision, the Supreme Court sent back to the appellate courts all of the cases involving challenges to the other restrictions on gun ownership contained in that statute.   Despite the apparent belief of the U.S. Supreme Court that the opinions in Rahimi clarified this issue, the lower courts seem to have come to an opposite conclusion.  In the last three months, particular in the context of non-violent felons, we have had the lower courts come to vastly different conclusions about whether and how the prior felony offense matters to the ability to own firearms.  These cases should be reaching the Supreme Court soon, but maybe not in time for this term.  Given the split in the lower federal courts on this issue, it seems a question of when, not if, the Supreme Court will be hearing at least one of these cases.  And, as sometimes occur when there are multiple cases presenting the same issue, one question will be whether the Supreme Court picks one case out of the entire group to review or accepts several cases (for example with different prior felonies) to more fully present the relevant issues.

As always, there are almost certainly other cases in the pipeline which have not gained national attention but which will raise significant political issues.  And the vast majority of cases presented to the Supreme Court raise “non-political” issue which matter very much to those who deal with those specific areas of law.

One last potential category of cases for this term are election-related cases.  For the next six weeks, the governing concept is the so-called Purcell principle — that federal courts should not change the rules close to elections.  Of course, when the government is attempting to change the rules on the eve of the election, what violates that principle — the federal court allowing the new rule to take effect or the federal court preventing the new rule from taking effect.  For the most part, these cases will be decided on the “emergency docket” and will not involve an opinion on the merits.  But, after the election, particularly if he narrowly loses, Donald Trump will once again file mostly frivolous cases.  Four years ago, when none of the cases had merit, the Supreme Court resisted the temptation to twist the law into a pretzel to steal the election for Donald Trump.  One would hope that the same remains true, but with the recent conservative overhaul of the law at the Supreme Court, the majority might fear that their accomplishments are on the ballot and react differently this time.