The United States Supreme Court will start its 2013-14 Term on October 7. The United States Supreme Court follows a somewhat predictable cycle.
Starting with October, it holds seven argument sessions, typically designated by the month in which the argument begins (i.e. October, November, December, January, February, March, and April). Each argument session is followed by two weeks off (though the post-December and post-January off periods tend to be an extra week or two off). In each argument session, the Supreme Court holds arguments on Monday, Tuesday, and Wednesday (except for any holidays) of each week. On each day, arguments begin at 10:00 a.m EDT and runs for approximately two hours (typically one hour per case). If necessary, arguments resume at 1:00 p.m. EDT. In recent years, as the Supreme Court has taken fewer cases, afternoon arguments have become a rare exception. However, this fall, the Supreme Court has scheduled several afternoon arguments. Over the summer, the Supreme Court released the argument calendars for the October, November, and December sessions and those cases will be the topic of this post. A second post will consider the remaining cases that have been accepted for argument in early 2014 and other cases in the pipeline that might get added.
The annual term begins with a case from Illinois about whether government employees must raise employment discrimination claims under employment discrimination law or if they can recharacterize their claims as a civil rights violation. While every case is important to the parties, the two big cases in October are McCutcheon vs. Federal Elections Commission and Schuette v. Coalition to Defend Affirmative Action.
The issue in McCutcheon are the continued constitutional validity on the aggregate contribution limits (i.e. what a donor can give to all candidates and party committees combined). This limit prevents donors from donating the individual maximum to every candidate that the party is running. The would-be large donors contend that this limit is no longer constitutional (if it ever was). In light of previous decisions (of which Citizens United may be the least significant), the Supreme Court has been big on money as speech in recent years, and could very well strike down these limits. However, since the previous decisions basically allow unlimited donations to unregulated Super PACs, this decision may ultimately prove meaningless.
Schuette involves a state constitutional amendment that precludes universities from adopting affirmative action policies in admissions. The challenge to this provision is based on a series of Supreme Court decisions that have struck down constitutional provisions that restructure the political process by state constitutional amendments to prevent minorities from fighting for programs in regular day-to-day politics (e.g. legislation, appointments to Boards of Regents).
November has several potentially interesting cases. In one case. the Supreme Court will consider whether a statutory exemption in the Fair Labor Standards (overtime law) for time spent changing clothes applies to the time spent putting on and taking off safety gear. In another case, the Supreme Court will consider whether Congress can gain the power to enact a law otherwise outside the scope of enumerated powers merely because the law implements a validly adopted treaty. In a third case, the Supreme Court will consider whether an agreement between an employer and a prospective union over terms surrounding the unions access to the company's employees violates the ban on an employer giving anything of value to a union. The case most likely to get attention, however, is Town of Greece v. Galloway, a case concerning whether a town council's practice of opening meetings with an invocation violates the Establishment Clause. The main issue in this case will be the present Justices lack of consensus over the test to be applied in Establishment Clause cases.
December also has several potentially interesting cases. In one case, the Supreme Court will decide whether the Airline Deregulation Act preempts state law breach of contract claims for changes to frequent flyer programs. In another case, the Supreme Court will decide whether (like other anti-discrimination laws) a party can prove that a practice violates the Fair Housing Act by showing that the practice has a disparate impact on minorities or must the party prove actual disparate treatment of minorities. (In this case, the alleged discriminatory practice was raising rents after renovating what had previously been low-income housing).
A potentially major case from December involves the EPA in the middle between competing interest groups regarding the EPA's ability to adopt a set of rules related to the "Good Neighbor" provision of the Clean Air Act which allows the EPA to regulate the down-wind impact of pollution on neighboring states. (Except for this provision, the EPA is normally limited to considering the impact of pollution on the immediate metropolitan area.) While this case does not directly involve the new greenhouse gas regulations (more on that in the next post), this case could indirectly impact the ultimate shape of the second round of greenhouse gas regulations.
Another potentially major case involves the current rules on visas for children of citizens and immigrants with permanent residence status. The issue in the case involves those under twenty-one at the time of the application who turn twenty-one while the application is pending. (Basically, a spouse or child gets preferred status in line.) The argument is whether the law mandates basing the decision on whether the child was under twenty-one when the application was filed or merely gives USCIS the option to treat the now-adult child as if she were still the same age as when the application was filed.
Besides the thirty-five cases being heard this fall, the Supreme Court has accepted six other cases that will be heard in the spring and will start filling out the rest of the spring argument sessions when it meets in the long conference next week. But more on those cases in the next post.