SCOTUS Watch: The final countdown

SupremeCourtThe U.S. Supreme Court presently has only four remaining days scheduled for issuing opinions in the month of June, this Thursday and the following three Mondays.

By my count, there are still 26 cases yet to be decided (below). That’s a pretty ambitious schedule. I suspect the Court will add additional opinion days on the next two Thursdays as well, or it may have to go into July.

The remaining “big” cases that court observers are watching are Fisher v. University of Texas at Austin (use of racial preferences in undergraduate admissions decisions), Whole Woman’s Health v. Hellerstedt (Texas law significantly reducing the availability of abortion services), and U.S. v. Texas (President Obama’s executive orders for deferred action in immigration).

The cases remaining to be decided are listed below the fold.

December

Dollar General Corporation v. Mississippi Band of Choctaw Indians, No. 13-1496 [Arg: 12.7.2015 Trans./Aud.]

Issue(s): Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Fisher v. University of Texas at Austin, No. 14-981 [Arg: 12.9.2015 Trans./Aud.]

Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

January

Puerto Rico v. Sanchez Valle, No. 15-108 [Arg: 1.13.2016 Trans./Aud.]

Issue(s): Whether the Commonwealth of Puerto Rico and the federal government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.

February

Kingdomware Technologies v. U.S., No. 14-916 [Arg: 2.22.2016 Trans./Aud.]

Issue(s): Whether the Federal Circuit erred in construing 38 U.S.C. § 8127(d)’s mandatory set-aside restricting competition for Department of Veterans Affairs’ contracts to veteran-owned small businesses as discretionary.

Utah v. Strieff, No. 14-1373 [Arg: 2.22.2016 Trans./Aud.]

Issue(s): Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful.

Stryker Corp. v. Zimmer, No. 14-1520 [Arg: 2.23.2016 Trans./Aud.]

Issue(s): (1) Whether the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases.

Halo Electronics v. Pulse Electronics, No. 14-1513 [Arg: 2.23.2016 Trans./Aud.]

Issue(s): (1) Whether the Federal Circuit erred by applying a rigid, two-part test for enhancing patent infringement damages under 35 U.S.C. § 284, that is the same as the rigid, two-part test this Court rejected last term in Octane Fitness, LLC v. ICON Health & Fitness, Inc. for imposing attorney fees under the similarly-worded 35 U.S.C. § 285.

Taylor v. U.S., No. 14-6166 [Arg: 2.23.2016 Trans./Aud.]

Issue(s): Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. § 1951, the government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.

Williams v. Pennsylvania, No. 15-5040 [Arg: 2.29.2016 Trans./Aud.]

Issue(s): (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Voisine v. U.S., No. 14-10154 [Arg: 2.29.2016 Trans./Aud.]

Issue(s): (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Whole Woman’s Health v. Hellerstedt, No. 15-274 [Arg: 3.2.2016 Trans./Aud.]

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

March

RJR Nabisco v. The European Community, No. 15-138 [Arg: 3.21.16 Trans./Aud.]

Issue(s): Whether, or to what extent, the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applies extraterritorially.

Acosta-Febo v. Franklin California Tax-Free Trust, No. 15-255 [Arg: 3.22.16 Trans./Aud.]

Issue(s): Whether Chapter 9 of the federal Bankruptcy Code, which does not apply to Puerto Rico, nonetheless preempts a Puerto Rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts.

Puerto Rico v. Franklin California Tax-Free Trust, No. 15-233 [Arg: 3.22.16 Trans./Aud.]

Issue(s): Whether Chapter 9 of the federal Bankruptcy Code, which does not apply to Puerto Rico, nonetheless preempts a Puerto Rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts.

April

U.S. v. Texas, No. 15-674 [Arg: 4.18.2016 Trans./Aud.]

Issue(s): (1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

U.S. v. Bryant, No. 15-420 [Arg: 4.19.2016 Trans./Aud.]

Issue(s): Whether reliance on valid uncounseled tribal-court misdemeanor convictions, in order to prove 18 U.S.C. § 117(a)’s predicate-offense element, violates the Constitution.

Universal Health Services v. U.S. ex rel. Escobar, No. 15-7 [Arg: 4.19.2016 Trans./Aud.]

Issue(s): (1) Whether the “implied certification” theory of legal falsity under the FCA – applied by the First Circuit below but recently rejected by the Seventh Circuit – is viable; and (2) whether, if the “implied certification” theory is viable, a government contractor’s reimbursement claim can be legally “false” under that theory if the provider failed to comply with a statute, regulation, or contractual provision that does not state that it is a condition of payment, as held by the First, Fourth, and D.C. Circuits; or whether liability for a legally “false” reimbursement claim requires that the statute, regulation, or contractual provision expressly state that it is a condition of payment, as held by the Second and Sixth Circuits.

Bernard v. Minnesota, No. 14-1470 [Arg: 4.20.2016 Trans./Aud.]

Issue(s): Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

Beylund v. Levi, No. 14-1507 [Arg: 4.20.2016 Trans./Aud.]

Issue(s): Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

Encino Motorcars, LLC v. Navarro, No. 15-415 [Arg: 4.20.2016 Trans./Aud.]

Issue(s): Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.

Birchfield v. North Dakota, No. 14-1468 [Arg: 4.20.2016 Trans./Aud.]

Issue(s): Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

Kirtsaeng v. John Wiley & Sons, No. 15-375 [Arg: 4.25.2016 Trans./Aud.]

Issue(s): What constitutes the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act.

Cuozzo Speed Technologies, LLC v. Lee, No. 15-446 [Arg: 4.25.2016 Trans./Aud.]

Issue(s): (1) Whether the court of appeals erred in holding that, in inter partes review (IPR) proceedings, the Patent Trial and Appeal Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the court of appeals erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the Board’s decision whether to institute an IPR proceeding is judicially unreviewable.

Mathis v. U.S., No. 15-6092 [Arg: 4.26.2016 Trans./Aud.]

Issue(s): Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

Dietz v. Bouldin, No. 15-458 [Arg: 4.26.2016 Trans./Aud.]

Issue(s): Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge’s presence, the judge may recall the jurors for further service in the same case.

McDonnell v. U.S., No. 15-474 [Arg: 4.27.2016 Trans./Aud.]

Issue(s): Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

h/t SCOTUSblog

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