Monthly Archives: September 2023

Supreme Court Preview — October Term 2023 — Part 3

By tmess2 | Published September 24, 2023

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. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 2

By tmess2 | Published September 17, 2023

Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 1

By tmess2 | Published September 10, 2023

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. Continue Reading...

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