As noted in the first part of this series, the highlights of the four-day October argument session are full days devoted to whether the term “sex” in Title VII includes sexual orientation (which might also lead to similar interpretations for other provisions barring discrimination in contexts other than employment) and to the board managing Puerto Rico’s financial issues.  With Veteran’s Day falling on a Monday this year, the November session will only have five argument days — the highlight of which will be DACA day.

DACA is not the only immigration issue in the November argument session.  The first case to be heard in that session in November 4 — Barton vs. Barr is also an immigration case.  That case involves the rules governing deportation.  Overly simplified, certain conduct authorize deportation.  However, an immigration judge can decide to cancel deportation under some circumstances.  One of those circumstances is that the immigrant has been a permanent resident for at least five years and has continuously resided in the United States for seven years.  However, for purposes of calculating that time period, that time stops when the immigrant commits an offense that would render them inadmissible.  The issue presented in Barton is whether a person who is not seeking admission can be rendered inadmissible.  (The paragraph governing “time stops” applies to both the provisions governing lawful permanent residents — who do not need to seek admission — and other immigrants like visa holders who do need to seek admission.  That same paragraph also stops the clock from running if the immigrant commits an offense that renders them removable — a concept that would apply to both lawful permanent residents and to visa holders.)  There is a logical argument for reading the paragraph in both ways, and this case will give a hint about how strictly this Court will read current immigration laws.

The other case on November 4 is a criminal law — Kansas v. Glover — case involving “reasonable suspicion.”  To grossly simplify matters, law enforcement can detain somebody for a brief period to investigate possible criminal activity including traffic offenses if they have “reasonable suspicion” that a crime is being committed.  A reasonable suspicion is basically objective reason(s) that lead the officer to believe that a crime might be in progress.  Here, the exact issue is whether the fact that the owner of a motor vehicle has a suspended license is a sufficient reason to justify stopping that vehicle to see if the owner is driving.  (In this case, the owner was driving, but the issue is not whether the officer was right.  Instead, the issue is whether the inference that the owner was driving is a reasonable inference for the officer to make.)  As you may have noticed, this case is the third criminal law-related case coming from Kansas.   The vast majority of the cases heard by the Supreme Court come from the federal courts.  Last year, the Supreme Court only took ten cases from state appellate courts, and — depending upon how you characterize some of the cases — only six involved criminal-law related issues.   For the Supreme Court to grant certiorari on three appeals from the same state in the same term is highly unusual and rarely happens even for larger states like Texas and California.  For a small state like Kansas, that is highly unusual.  On the other hand, Kansas has been gaining a reputation for loosely applying prior Supreme Court decisions (mostly in cases in which the Kansas Supreme Court has found that something about the state’s death penalty system violates the federal constitution), and Kansas has been involved in at least three major Supreme Court cases over the past twenty years.

On November 5, the first case involves the interpretation of charter contracts for ships under maritime law.  While not significant to most people, this case is a good example of a key part of the Supreme Court’s docket — resolving conflicts on recurring issues of federal law so that federal law is the same regardless of whether you are in California or Florida.  The other case — Allen vs. Cooper — involves issues of intellectual property and state sovereign immunity.  The norm under the Eleventh Amendment is that states are immune from suit in federal court.  However, Congress can — by statute — eliminate sovereign immunity for certain actions.  The question here is whether Congress did so in the case of copyright violations.

The first case on November 6 is a Clean Water Act case from Hawaii.  The basic issue is whether the authority of the EPA to require permits from “point sources” that discharge directly into the “navigable waters” of the United States also requires permits from “nonpoint sources” that only discharge indirectly into the navigable waters of the United States (e.g., discharge into ground waters that then discharge into the navigable waters) if the pollution can be traced back to the point sources.  (It should be noted that the alleged polluter is actually the county government for Maui.)  The other case involves ERISA (the law governing employee benefit plans) and a pension plan, specifically the rules governing claims of mismanagement or fraud by the individuals running the pension plan.

November 12 is DACA day.  I will have more when this case is argued.  There are three issues facing the court (officially only two but the supporters of the Administration raise the third in their briefs).  First, does the judiciary have authority to review the President’s decision to cancel DACA or is the issue one committed entirely to unreviewable executive discretion?  Second, if the actions are reviewable under the Administrative Procedure Act, did President Trump comply with those requirements before cancelling DACA?  Third, was DACA ever valid in the first place?  (The analysis of the last argument is that, while the executive branch has discretion to choose priorities in enforcing immigration law, immigration law does not allow the executive branch to create a program like DACA which exempts on a class-wide basis certain deportable immigrants from deportation.  In other words, ICE can choose to not seek out certain categories of immigrants and the immigration courts can put cases against certain categories of immigrants on the slow track to allow the processing of higher priority cases, but ICE can’t exempt such individuals from deportation.  If DACA was never a valid program, it does not matter if the President failed to follow procedures in cancelling DACA.)

Also on November 12 is round two of Hernandez vs. Mesa.  This case is the cross-border shooting of a Mexican teenager by a Border Patrol officer.  The issue is whether — assuming that the shooting was not justified — is whether there is a civil cause of action for such an unlawful shooting.  The last time that the Supreme Court heard this case, the Supreme Court punted and sent it back to the Fifth Circuit with a suggestion of the principles and cases that the Fifth Circuit should take into consideration.  Not to surprisingly given the composition of the Fifth Circuit, the Fifth Circuit again found for the officer and held that there was no cause of action.

The first case on November 13 is a factually weird case in which the underlying allegation is that Comcast entered into a conspiracy with the NAACP and other civil rights group to discriminate against certain minority owned networks (which Comcast has declined to carry) on racial grounds.  The ultimate issue is whether a petition alleging this type of conspiracy must show that race was a “but for” factor in the allegedly discriminatory decision.   Finally, the November session ends with a case about bankruptcy procedures.  Again simplifying the issues, if you file for bankruptcy, you are entitled to a stay of any collection efforts.  The debtor can request to have the stay lifted in some circumstances.  The issue is whether the debtor has a right to an immediate appeal if the bankruptcy court declines to issue the stay.  While one of those cases that will not have an immediate political impact, this case fits into the broad category of access to the courts which has been a recurring issue over the past thirty years of the conservative judicial ascendency.  On the other hand, allowing an immediate appeal would potentially make bankruptcy more complex for middle class individuals who have gotten in over their heads in debts to big corporations (like banks and credit card companies).

In short, November is a good mix of cases.  Hernandez has been floating around for a good time — getting more attention from conservative sources who tend to portray the officer as the unfortunate “victim” being punished for doing his job than from liberal sources who should be rightly concerned about a rule that would immunize Border Patrol agents for taking unlawful acts against citizens of other countries.  Depending on how they are resolved, the decisions on DACA and the other immigration case could become issues next fall as could the environmental case involving Maui.  The other cases are likely to slip below the political radar, but the ERISA case, the bankruptcy case, and the traffic stop case could have significant real world impact.