First Monday in October: SCOTUS Preview


The U.S. Supreme Court term for 2018-19 begins on the first Monday in October.

While all attention is on the Brett Kavanaugh confirmation hearings and what may come next from a “limited” FBI background investigation and confirmation vote scheduled for later this week, the court does have important business on the docket.

Dara Lind at has a preview of court business:

On Monday, October 1, the Supreme Court will start its 2018-’19 term. Since nominee Brett Kavanaugh hasn’t even had a confirmation vote in the full Senate, there [will] be only eight justices on the Court when the term begins.

* * *

The Supreme Court is perfectly able to function with only eight justices — they did so for over a year after Justice Antonin Scalia died in February 2016. (Republicans refused to confirm a replacement nominated by Barack Obama, and the seat was ultimately filled in April 2017 by Trump nominee Neil Gorsuch).

The only potential hiccup is a 4-4 case that makes it impossible to issue a nationwide ruling on a subject — but the Court has enough control over when it takes cases, and when it rules on them, that it could easily go through the first few months of the term without having to issue a 4-4 ruling on a case it would rather have a 5-4 ruling on.

Traditionally, if you weren’t on the bench for the oral argument, you don’t cast a vote

The Supreme Court doesn’t have to release any decisions before Kavanaugh (or whoever) gets seated on the Court.

Because it’s a new term, there isn’t a backlog of pending cases that have been argued and haven’t been decided yet. (This is the crucial difference between a justice leaving the court in the middle of the term and the end: There were cases in which Scalia, for example, had participated in the oral argument and would have voted a particular way, but after he died the Court couldn’t count his vote in any cases that hadn’t yet been released.)

The justices will start hearing oral arguments in new cases on Monday, and the schedule is packed: The Court’s hearing six cases next week, five cases the week after, six cases the last week of October, and six cases the first week of November.

But that’s it. The rest of the Court’s schedule isn’t set — there are a lot of cases that the Court has agreed to hear at some point, but hasn’t set a date for. And if it looks likely that there won’t be a nine-justice court until after the first week of November, the justices will probably keep declining to schedule the cases that they know they’ll want nine votes on. (This is what the Court did after Scalia’s death, too.)

The reason they might delay: Traditionally, justices don’t vote in cases unless they were present at oral argument. (Justice Gorsuch, for example, recused himself from all cases that had been heard before he was confirmed in April 2017.)

But that rule appears to be an unwritten one, and it’s been breached before, albeit in different circumstances — when Chief Justice William Rehnquist had a tracheotomy in 2004, he participated in cases by working off the transcripts and notes of oral arguments he missed. If future Justice Kavanaugh (or whoever) really wanted to cast a vote in a case heard in October, and the other justices really wanted his input, it would probably work out.

This term’s early cases aren’t ones Kavanaugh (or whoever) would be burning to weigh in on

None of the cases that have been scheduled involves an issue that Justice Kavanaugh (or whoever) would necessarily be burning to weigh in on.

Remember that most Supreme Court cases don’t break down along partisan lines. Under Chief Justice John Roberts, in particular, there are a lot of unanimous decisions. And there’s no difference between an 8-0 vote and a 9-0 vote.
There is one capital punishment case on the docket, being heard Tuesday, but it’s a narrow one determining whether the Eighth Amendment prohibits executing someone who no longer remembers the crime they committed after suffering several strokes.

If Kavanaugh isn’t confirmed before Monday — he will not — he’ll miss riveting cases on the scope of the Age Discrimination in Employment Act as it applies to employers part of political divisions of states, and on whether determinations of economic impact in designating critical habitat are subject to judicial review.

There are a few early cases that are likely to be legally tricky — such as a case set to be heard Tuesday on lawsuits in federal court from people whose property has been taken by the government — and that might even result in 4-4 splits.

But even a 4-4 split isn’t the end of the world; it just means that the lower court’s ruling stays in effect. That can be frustrating when there are conflicting rulings from different lower courts, but it’s generally survivable — and there’s nothing stopping the Court from taking a similar case up once there are nine justices to resolve the same question.

The point is, there are no burning issues at this point on the docket that would require nine justices on the court to render a controversial 5-4 decision, which would likely not be announced until next year, and as late as next June. There is no rush to fill the vacancy created by Justice Kennedy’s retirement, other than Republican’s desire to use the appointment in political ads to energize the GOP crazy base to turn out to vote in November. This is not a legitimate reason to rush to fill a vacancy, especially in light of the “McConnell Rule” in which a court vacancy was held open for over a year because it was an election year.

For you hard-core Supreme Court junkies, SCOTUSblog has the Court’s docket of cases presently schduled for oral argument. October Term 2018:

October Sitting

Mount Lemmon Fire District v. Guido, No. 17-587 [Arg: 10.1.2018]

Issue(s): Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.

Weyerhaeuser Company v. U.S. Fish and Wildlife Service, No. 17-71 [Arg: 10.1.2018]

Issue(s): (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Gundy v. U.S., No. 17-6086 [Arg: 10.2.2018]

Issue(s): Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Madison v. Alabama, No. 17-7505 [Arg: 10.2.2018]

Issue(s): (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Knick v. Township of Scott, Pennsylvania, No. 17-647 [Arg: 10.3.2018]

Issue(s): (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

New Prime Inc. v. Oliveira, No. 17-340 [Arg: 10.3.2018]

Issue(s): (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

Stokeling v. U.S., No. 17-5554 [Arg: 10.9.2018]

Issue(s): Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

U.S. v. Sims, No. 17-766 [Arg: 10.9.2018]

Issue(s): Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

U.S. v. Stitt, No. 17-765 [Arg: 10.9.2018]

Issue(s): Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Air and Liquid Systems Corp. v. Devries, No. 17-1104 [Arg: 10.10.2018]

Issue(s): Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

Nielsen v. Preap, No. 16-1363 [Arg: 10.10.2018]

Issue(s): Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

November Sitting

Lamps Plus Inc. v. Varela, No. 17-988 [Arg: 10.29.2018]

Issue(s): Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

Henry Schein Inc. v. Archer and White Sales Inc., No. 17-1272 [Arg: 10.29.2018]

Issue(s): Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

Washington State Department of Licensing v. Cougar Den Inc., No. 16-1498 [Arg: 10.30.2018]

Issue(s): Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. CVSG: 05/15/2018.

Garza v. Idaho, No. 17-1026 [Arg: 10.30.2018]

Issue(s): Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.

Frank v. Gaos, No. 17-961 [Arg: 10.31.2018]

Issue(s): Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

Jam v. Int’l Finance Corp., No. 17-1011 [Arg: 10.31.2018]

Issue(s): Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.

Virginia Uranium v. Warren, No. 16-1275 [Arg: 11.5.2018]

Issue(s): Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings). CVSG: 04/09/2018.

Sturgeon v. Frost, No. 17-949 [Arg: 11.5.2018]

Issue(s): Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation and private land physically located within the boundaries of the national park system in Alaska.

BNSF Railway Company v. Loos, No. 17-1042 [Arg: 11.6.2018]

Issue(s): Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

Bucklew v. Precythe, No. 17-8151 [Arg: 11.6.2018]

Issue(s): (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

Culbertson v. Berryhill, No. 17-773 [Arg: 11.7.2018]

Issue(s): Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th, and 11th Circuits hold, also fees for representation before the agency.

Republic of Sudan v. Harrison, No. 16-1094 [Arg: 11.7.2018]

Issue(s): Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability. CVSG: 05/22/2018.

SCOTUSblog continues with a list of the cases granted certiorari but not yet scheduled for oral argument.

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  1. I’ve been seeing tweets and postings regarding a case that the ‘Pubs would very much like to have Kavanaugh on board to weigh in on — it does not appear to be in the list posted in this blog entry: Gamble v. United States. Apparently this could be used to make a presidential pardon apply to state criminal cases as well, which it currently does not.

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