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Greetings, Court Fans, and welcome back for another Term of the Supreme Court Update!

Although it seems like we just left you for the summer, the first Monday in October is almost upon us. As in past Terms, when the Court issues an order or opinion, we will send an e-mail summarizing the highlights to give you a way to follow the Court with a minimal investment of time. Hopefully, you will continue to find these updates to be a user-friendly (and maybe even enjoyable) way to keep up with the Court.

 

It will be a while before we get an actual opinion, of course, but the Court has already been active this week. On Tuesday, the Court added to its docket by granting cert in seventeen new cases from its “long conference” before the start of the Term; we expect a lengthy order list denying cert in many hundreds of other cases soon.

 

Given the large number of grants, we’ll dispense with the verbiage and get right to the questions presented in the new cases, some of which promise to be quite interesting. Foremost among them are Crawford v. Marion County Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25), consolidated cases that ask whether an Indiana statute mandating that those seeking to vote in-person produce a government-issued photo identification violates the First and Fourteenth Amendments to the United States Constitution.

 

On the antidiscrimination front, the Court took three new cases this week, including:

 

CBOCS West, Inc. v. Humphries (06-1431): Is a race retaliation claim cognizable under 42 U.S.C. § 1981?

 

Kentucky Retirement Systems v. EEOC (06-1037): Whether any use of age as a factor in a retirement plan is “arbitrary” and thus renders the plan facially discriminatory in violation of the Age Discrimination in Employment Act?

 

Gomez-Perez v. Potter (06-1321): Whether the federal-sector provision of the Age Discrimination in Employment Act prohibits retaliation against employees who complain of age discrimination.

 

The Court also took an intellectual property case, Quanta Computer, Inc. v. LG Electronics, Inc. (06-937), which asks: Whether the Federal Circuit erred by holding, in conflict with decisions of this Court and other courts of appeals, that respondent’s patent rights were not exhausted by its license agreement with Intel Corporation, and Intel’s subsequent sale of product under the license to petitioners. (The facts of this are interesting: LG purchased a portfolio of U.S. and foreign patents, and essentially has claimed that every computer made with an Intel chip infringes on the patents — despite a license agreement LG reached with Intel allowing Intel to sell its processors to manufacturers).

 

Other cases that will be of interest to businesses include the following:

 

Preston v. Ferrer (06-1463): Whether the Federal Arbitration Act and Buckeye Check Cashing, Inc. v. Cardegna preempt the holding in this case, voiding an interstate arbitration agreement under the California Talent Agencies Act?

 

MeadWestvaco Corp. v. Illinois Department of Revenue (06-1413): Is the attempt by Illinois to tax the approximately $1 billion gain realized by Petitioner when it sold its investment in Lexis/Nexis in 1994 (which it acquired in 1968 for $6 million and which functioned for 26 years as an independent, nonunitary business) in direct conflict with the decisions of the Court in Allied-Signal, Inc. v. Director, Division of Taxation, F.W. Woolworth Co. v. Taxation & Revenue Department of New Mexico, and ASARCO Inc. v. Idaho State Tax Commission and the Due Process and Commerce Clauses of the United States Constitution?

 

Morgan Stanley Capital Group v. Public Utility District No. 1 (06-1457) and Calpine Energy Services v. Public Utility District No. 1 (06-1462): Whether the Ninth Circuit erred by failing to abide by this Court’s decisions in United Gas Pipe Line Co. v. Mobile Gas Service Corp., and Federal Power Commission v. Sierra Pacific Power Co., which preclude the Federal Energy Regulatory Commission from retroactively undoing valid, bilaterally negotiated, arms-length wholesale energy contracts that have, at most, minimal impact on retail rates.

 

Warner-Lambert Co. v. Kent (06-1498): (1) Whether, under the conflict preemption principles in Buckman Co. v. Plaintiffs’ Legal Comm., federal law preempts state law to the extent that it requires the fact-finder to determine whether the defendant committed fraud on a federal agency that impacted the agency’s product approval, where the agency — which is authorized by Congress to investigate and determine fraud — has not found any such fraud, and thus — as in Buckman — the state requirement would interfere with the agency’s critical functions. (2) Whether, under the conflict preemption principles in Buckman, federal law preempts the provision in a Michigan statute that allows a product liability claim to be maintained against a manufacturer of an FDA-approved drug where, without an FDA finding of fraud on that agency, the fact-finder is required to make a finding under state law as to whether the manufacturer committed fraud-on-the-FDA and whether, in the absence of that fraud, the FDA would not have approved the drug.

 

Boulware v. United States (06-1509): Whether the diversion of corporate funds to a shareholder of a corporation without earnings and profits automatically qualifies as a non-taxable return of capital up to the shareholder’s stock basis, even if the diversion was not intended as a return of capital.

 

The Court also added to its death-penalty docket with Baze v. Rees (07-5439), which asks: (1) Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain? (2) Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used? (3) Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering? (4) When it is known that the effects of the chemicals could be reversed if the proper actions are taken, does substantive due process require a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected?

 

Finally, the Court granted cert in a number of other criminal and related cases. They are as follows:

 

Virginia v. Moore (06-1082): Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law?

 

Dada v. Keisler (06-1181): Whether the filing of a motion to reopen removal proceedings automatically tolls the period within with an alien must depart the United States under an order granting voluntary departure.

 

Ali v. Achim (06-1346): (1) Whether the Seventh Circuit erred in concluding — in direct conflict with the Third Circuit — that an offense need not be an aggravated felony to be classified as a “particularly serious crime” that bars eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)(B); (2) Whether the Seventh Circuit erred in narrowly construing the scope of its jurisdiction to review particularly serious crime determinations of the Board of Immigration Appeals under 8 U.S.C. §§ 1252(a)(2)(B)(ii) and (a)(2)(D), by treating non-discretionary denials of asylum and withholding of removal as discretionary in nature, and by refusing to consider arguments that the agency applied an incorrect legal standard, in direct conflict with the construction of those statutes by the Third, Ninth, and Tenth Circuits.

 

United States v. Rodriquez (06-1646): Whether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the Armed Career Criminal Act.

 

Begay v. United States (06-11543): Whether petitioner’s prior felony convictions for driving while intoxicated qualify as “violent felonies” under 18 U.S.C. 924(e).

 

Gonzalez v. United States (06-11612): Is a federal criminal defendant’s counsel’s oral consent to have a United States magistrate judge preside over jury selection binding on the defendant when the record does not reflect the defendant’s own knowing and voluntary waiver of his constitutional right to have an Article III judge preside over jury selection?

 

And with that, we are set for a new Term! Thanks for following the Court with us again – we’ll be back next week with any more orders or news on the arguments. Until then, thanks for reading!

 

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400