When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June. As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive. While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.
In recent years, the Supreme Court has changed how it grants cases. In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference). However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems. In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.
In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico. Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense). Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government. The issue in this case is whether Puerto Rico is a separate sovereign from the federal government. While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status.
Virginia’s redistricting is back in front of the Supreme Court. In a separate case, the Supreme Court sent back a challenge to Virginia’s redistricting in light of its decision last year about Alabama’s redistricting plan. It is likely that this case will be sent back as well.
While not on the current conference, there are some other cases pending for later conferences. There is a case from California challenging California’s “top two” primary in which all candidates run in the primary but only the top two get to the general election. The complaint is that the system restricts political participation by preventing most political groups from competing in the general election.
The two most politically explosive issues may be abortion and the contraception mandate. There are several cases pending challenging the latest rounds of abortion restrictions in several states (with Mississippi and Texas being the cases must likely to make it to the Supreme Court) that make it very difficult for abortion clinics to operate. In addition, there is round two of the contraception mandate cases. In the last round, the Supreme Court recognized that businesses and religious groups did not need to pay to provide contraception coverage to their employees. This round involves the forms that the federal government requires these employers to complete to claim the exemption. Some of the companies and religious groups are challenging having to put anything on the form that would make it easier for the federal government to pay for the coverage. Because there is a substantial disagreement among the lower federal courts on this issue, it is likely that the Supreme Court will take some case.