Supreme Court 2017-18 Term Preview: Part III (Remaining Cases)

In Part I and Part II, we looked at the cases that have already been scheduled for an argument.  This post will look at the cases for the remainder of the term.

As of this point in time, the Supreme Court has not yet announced the schedule of the cases that will be argued in December.  (The December argument session actually begins the Monday after Thanksgiving, November 27.)  There are six available dates for argument and ten cases available.  (To get to ten available cases, the Supreme Court granted review in the middle of August to replace one case that was dismissed.)  It is possible that some of the ten cases may end up in January, particularly if they do not accept many cases over the next several weeks for January.  (The briefing schedule typically requires at least three months between the Supreme Court granting review and the argument.  As such, the January argument docket will come from the cases already granted and the additional cases added between now and October 16.)

As with the previous posts, some of the cases available for argument in December are somewhat technical issues that will not get a lot of public attention.

The big case for the remainder of the term is Masterpiece Cake.  This case involves the balancing of the civil rights of gays and lesbians against the First Amendment rights of vendors (here a cake for a wedding ceremony.)  I will have more on this case as it approaches.  The bottom line is that the result of this case will depend on how the Supreme Court frames the case.  Like with the earlier decisions on contraceptive coverage, if the Supreme Court views this case as being about the furnishing of goods and services to consumers — than the baker loses.  If the Supreme Court views this case as being about how the baker views the meaning of their action in selling the product, the baker probably wins and people will be free to assert religious and political opposition to homosexuality as a reason to be exempt from anti-discrimination laws.

While I rarely comment on criminal cases, an exception needs to be made for Carpenter.  Generally speaking, parties (including the government) can subpoena business records if the subpoena is reasonably related to a pending case.  For example, the government can subpoena utility records if a person’s residence is an issue in a case.  The business records of cell phone companies, however, includes the tower used by a cell phone during a phone call.  And that tower information can be used to figure approximately where the user was when they made or received that call.  The defendant in this case contends that this information is different from the typical information conveyed by a business record, and the government should have to meet the same level of proof that would be required for a search warrant (probable cause) to get that data rather than mere reasonable suspicion (the level set by federal statute).  Given that almost everybody uses cell phones today, this case will be one of the bigger criminal cases of the decade.

A third significant case pits New Jersey against the NCAA, professional sports leagues, and the federal government.  Approximately twenty years, Congress passed a law saying that states could not legalize gambling on sports unless they did so prior to a certain date (essentially allowing legal gambling in Nevada and giving the remaining states a very short time period to decide if they wanted to join Nevada).  Several years back, New Jersey passed a law establishing a regulated sports gambling industry in New Jersey.  The federal courts found that the federal law barred the state law.  In response, New jersey simply repealed their law that banned gambling on sports activity, leaving them with no law on sports gambling.  The lower federal courts found that the federal law barred this action too.  The issue in front of the Supreme Court is whether Congress can force a state to have a specific law.  (There is no dispute that Congress could pass a federal law making sports gambling a federal offense, but the issue is whether it can force a state to make gambling a state offense.)

The last major case involves collecting judgments against Iran.  While the issue in the case is a technical question involving what assets can be reached to collect on a judgment against a foreign sovereign.  The claims involve terrorist activities, and anything dealing with the U.S. seizing or releasing Iranian assets raises significant foreign policy issues.

Besides the ten cases already accepted for review, there are always a long list of cases in the pipeline (around seven hundred requests for Supreme Court review are filed each month.)  Because the Supreme Court only grants argument in less than one percent of the cases, predicting which cases will join the current group of cases is next to impossible.

One possible case involves a takings clause claim (Jarreau).  The issue is how to measure compensation when the taking impacts a business.  Is the measurement limited to the lost value to the real estate or do you include the lost value of the business.  (Taking part of the property may have little impact on some businesses which only use part of the property (e.g., a grocery store that loses twenty parking spaces) but might have significant impact on another business (a gas station that loses half of its pumps).)

Another case, involving Microsoft, deals with whether U.S. companies that store electronic communications have to comply with a search warrant when the server on which the company stores e-mails is outside the U.S.

Finally, there are pending appeals from decisions on the redistricting plans in Texas.  Technically, the Supreme Court has to issue a ruling on the merits of these appeals.  However, the Supreme Court can choose to issue a brief opinion — sometimes just one line — summarily affirming or reversing the lower court.  As such, while we will see something on these cases, it’s not clear that there will be full briefing and argument on these cases.

When you look at the cases already granted, this upcoming term is looking very significant.  It will take another couple of months to see how significant it will be.  As the arguments approach or take back, we will be back with more comments on several of the cases including Gill and Masterpiece Cake.

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