Supreme Court Preview Part Four — Cases in the Pipeline

On Monday, the Supreme Court will meet in what is commonly called “The Long Conference” — reflecting the fact that its been three months since the Justices last met to consider petitions for review (officially petitions for a writ of certiorari) creating a long list of cases to consider.  Maybe Monday afternoon, maybe later in the week, the Supreme Court will announce which cases it will hear arguments on.  The following Monday (October 3), the new term officially begins and the Supreme Court will issue an order list which will, at the very least, contain a long list of the cases that it has decided not to review on the merits.

Predicting which cases the Supreme Court will actually take is almost impossible.  The Supreme Court receives almost 10,000 petitions per year but only grants full review on about 70-80 cases.  Of course, a lot of the petitions are clearly long shots — many written by the petitioners themselves — that simply assert error in the lower courts without giving any reason why the case matters to anybody other than the petitioner.  But even after eliminating the chaff, there are way more cases that raise significant issues than the Supreme Court will take.

One thing that makes it easier to predict which cases might be heard (at least as the term progresses) is a recent change in the practices of the Supreme Court.  For the most part, the Supreme Court has not granted cases at the first conference on which the case is on the agenda.  Instead, if there is serious interest in a case, the Justices have re-set the cases for another conference to take a closer look at the case in order to assure themselves that there is not some issue in the case that will prevent them from reaching the issue on which they are granting review.   (This practice is less true at the long conference because the Justices have had a longer period of time to look at the cases.)  Of course, the Supreme Court does not grant review on all of these cases, but a one in three or one in four chance is a lot better than the initial odds.

This year adds an unusual feature to the review process — the vacancy on the Supreme Court.  As the current argument schedule shows, the Supreme Court is trying to avoid making waves before the election.  So some cases that might be granted could be pushed back to a November or December conference.  On the other hand, postponing decisions has a consequence.    The Supreme Court did not accept a large number of cases back in the Spring.  That means that it is unlikely that there will be more than one or two of the current cases available for the January argument calendar (and maybe none).  The remaining January arguments will come from the cases granted in October.  Similarly, the deadline for granting review for February arguments is November (with similar deadlines in December and January for the March and April argument calendars).    The vacancy on the Supreme Court makes it harder for the Justices to predict the likely outcome in a close case — and whether it is better to have the case heard this term or to push the issue back to next year’s term.

With these cautions, there are several potentially interesting cases that could get heard this term (or next).  Some of these cases raise issues similar to the cases already set for argument.  It is more likely that the Justices will “hold” these new cases and ship them back to the lower court for reconsideration after they decide the cases already on the argument calendar.  One of the cases likely to get some media attention is the O’Banion case (involving competing petitions between a former student-athlete and the NCAA regarding the NCAA rules limiting the type of financial support that schools can give to athletes and allowing the schools to sell goods — shirts, videogames, etc. — that use the names and images of the players on their teams.)  There is a First Amendment case challenging state laws restricting internet access by sex offenders.   In a court-martial case involving the death penalty, the issue is whether the President can establish a list of aggravating circumstances or whether such circumstances can only be established by statue.

The most significant First Amendment case seeking Supreme Court review is Armstrong v. Thompson.  This case involves a low-level law enforcement official who applying for a job with a different agency.  That agency received anonymous letters containing information about what was happening to that official at his current job.  He alleged (and proved at trial) that the letters were factually inaccurate.  Under governing Supreme Court law, public officials also need to prove that the individuals who wrote the letters either knew that the information in the letters was false or acted with reckless disregard for whether the information was false.  (On liability, the law does not make a distinction between letters and newspaper articles or television newscasts.  The form of communication — and who it reaches — comes into play in measuring the damages from the false communication.)  Petitioner argues that this rule should be limited to people who are truly public figures.   If the Supreme Court grants review on this issue, a modification of the rules could make it harder for the media to cover government activities including criminal cases.    (Imagine how much more tentative coverage of police use of force cases would be if newspapers and television had to worry about being sued by the officer if the information that they report ends up being inaccurate.)

There is also one of the rare intellectual property cases that most people will get — Lenz v. Universal Music.  Ms. Lenz posted a video showing her children dancing to “Let’s Go Crazy.”  The company that owns the copyright to the song gave notice to the website that it had to remove that post, alleging that it infringed on their copyright.  Ms. Lenz claims that the notice (and the removal of the video) was improper due to the fair use doctrine.  (The fair use doctrine permits individuals to make “fair use” of copyrighted material to make an entirely new work.)

The most politically significant of the current cases is the Gloucester County School Board.  This case involves what bathroom transgender students use.  Under the federal law mandating that schools not discriminate on the basis of gender, schools may have separate bathrooms for males and females.  The respondent filed suit alleging that the measure of gender should be the student’s own gender-identification.  After the student filed this suit, the federal government issued a letter agreeing with the student’s interpretation of gender under the regulation.  After the Fourth Circuit found that the letter was a reasonable interpretation of the regulation, the federal government notified other school districts that it would be applying the letter to other cases in which similar complaints were raised.  There are other cases in lower courts involving the validity of the letter and bathroom use by transgender students.   My hunch is that, ultimately, the Supreme Court will take this issue.  From both sides of this issue, nobody likes the rule being based on how the current Administration interprets the regulation.  LGBT groups would rather a holding that gender is a matter of self-identity.  Conservative groups would prefer a holding that gender is a matter of genetics or biology (i.e. until a person actually completes gender reassignment surgery, that person is their birth gender).

We will learn over the next several months which cases the Supreme Court will hear this term.  Both in the short-term (the decision on these cases) and in the long-term (deciding which cases merit review), there is a substantial difference between the type of justice that Republicans want on the Supreme Court and the type of justice that Hillary Clinton will appoint.  Whether decisions favor businesses and those groups with powers or private individuals and those most vulnerable depends on the composition of the Supreme Court.  The next president could get to name four Supreme Court justices, and the individuals who fill those vacancies will matter.

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