In Part I and Part II of this series, I discussed the highlights of the cases set for the October argument session and the November argument session.  Between those two months, the Supreme Court will hear 22 arguments on 23 cases.  As of this point in time, the Supreme Court has accepted 38 cases for argument.  That means that there are fifteen cases already accepted that do not yet have an argument date.  The cases for the December argument session will be announced in the next several weeks.  It is more likely than not that the Supreme Court will fill all the morning slots for that session (twelve cases).  The best bet will be that the Supreme Court will schedule the remaining three cases for the January argument session.  However, sometimes, the Supreme Court has scheduled afternoon argument sessions for December rather than carrying a case over to January.

Besides the existing cases that the Supreme Court will carry over to January, the Supreme Court will begin the process of filling the rest of the 2019 arguments sessions with its initial conference on September 24.   However, there are only a limited number of cases that the Supreme Court has to take.  Even with those cases, the Supreme Court can resolve those cases with a short unsigned (formally per curiam) opinion and does not have to accept full briefing and argument.  Everything else on the docket requires four justices to vote to accept the case.    Which means that the Supreme Court can decline to accept any case — no matter how important — because six justices do not want to address the issue at the present time or because they think that there is something unusual in the current case that interferes with reaching that issue.  Because, in a typical year, the Supreme Court gets over 8,000 petitions from parties that want the Supreme Court to take their case but grants review in less than 80 cases, it is hard to predict which cases will be accepted.   According to certpool.com, Monday’s conference will cover over 1,200 cases.  Even before relists (a decision by the Supreme Court to table a petition to a second conference before making a final decision — which has tended to become more common for cases under serious consideration in recent years), the October 5 conference will cover approximately 250 cases.   Even a site like Scotusblog which tries to list the most interesting of the petitions filed each week misses some grants and lists cases that are denied.  With all of these caveats, I will try to list some of the cases that appear to be in the pipeline that are of interest.

Among the cases already accepted, there are a handful that could have some significant impact.  For example, there is an anti-trust case looking at how to make the traditional rules fit apps for the I-phone.  Typically, Apple would be considered a mere intermediary between the purchaser and the suppliers and, thus, would not be subject to anti-trust claims.  However, Apple plays a unique role in the marketplace and does that unique role require anti-trust protection for both purchasers and suppliers.   Similarly there is a case (involving Merck) about the interaction between FDA labeling requirements and state “failure to warn” claims for the side effects of medications.   The Supreme Court has also accepted a case in which it may reconsider the “dual sovereign” exception to double jeopardy (basically that, if a defendant’s conduct violates the laws of multiple states or a state and the federal government, the defendant could be charged by both governments).  The Supreme Court will also consider whether the Excessive Fines Clause of the Eighth Amendment applies to the states and how that impacts civil forfeiture cases.  There are also two cases involving the relationship between treaties with two native tribes and state court jurisdiction over criminal matters. Continue Reading...