Supreme Court Update: Order List 7/5/16

July 5, 2016 Supreme Court Update

Greetings, Court Fans!

This time last year, as we summarized Obergefell v. Hodges (2015), King v. Burwell (2015), among other decisions, all the talk was about the Supreme Court's "left turn." But some observers predicted that OT15 could be the term that "the Empire Strikes Back," with conservative victories on public-sector unions, affirmative action, and possibly even abortion. That rightward correction never materialized. As a result of Justice Scalia's death in February, the conservatives lacked a fifth vote to strike down union-shop arrangements in Friedrich v. California Teachers (14-915). They also lacked even a fourth conservative, as Justice Kennedy planted himself firmly on the left in Fisher v. University of Texas at Austin (14-981), upholding race-conscious college admissions, and Whole Woman's Health v. Hellerstedt (15-274), giving new teeth to the undue-burden test in abortion cases. Now, some of those same commenters are hailing the end of a decades-long rightward shift on the Supreme Court.

One sensed a corresponding lament in Justice Alito's dissent from denial in Stormans, Inc. v. Wiesman (15-682), the last published opinion of the term. The case concerned regulations adopted by the Washington State Board of Pharmacy requiring pharmacies to stock and dispense emergency contraceptives. The Stormans family, devout Christian owners of Ralph's Thriftway in Olympia, challenged the regulations, arguing that they constituted a targeted and unnecessary burden on their free-exercise rights. They maintained that Ralph's and other pharmacies that refused to stock emergency contraception had made a practice of referring women to nearby pharmacies that could assist them and that no woman had ever been denied contraceptives under that "facilitated referral" system. (Every state but Washington permits facilitated referrals for conscientious objectors.) Though the District Court agreed that the regulations violated the Stormans' free-exercise rights, the Ninth Circuit reversed, and the Supreme Court denied cert. That, Justice Alito argued, "is an ominous sign." Alito (joined by the Chief and Justice Thomas), would have granted cert to "to ensure that Washington's novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights." Beyond that, he lamented the Court's apparent indifference to the matter: "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern."

While we won't be bringing you a summary of Stormans next term, the Court did add several new cases to the OT16 calendar, bringing the total (so far) to twenty-nine. Here are the latest additions, from the Court's end-of-term "clean up" conference:

Lightfoot v. Cendant Mortgage Corp. (14-1055), which asks: (1) whether the federal courts have original jurisdiction over all cases brought by or against Fannie Mae, due to the "sue and be sued" language in its charter; (2) whether the Supreme Court's decision in American National Red Cross v. S.G. (1992), holding that "sue and be sued" provisions only confer original jurisdiction where federal courts are specifically mentioned in the provisions, should be reversed.

Venezuela v. Helmerich & Payne Int'l (14-423), which asks whether the pleading standard for alleging that a case falls within the FSIA's expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous.

Ivy v. Morath (15-486), which asks whether a relationship between public and private actors invokes dual obligations to accommodate individuals with disabilities, even when there is no express contractual relationship between a public entity and its private vendor.

Fry v. Napoleon Community School (15-497), which asks whether the Handicapped Children's Protection Act commands exhaustion in a suit brought under the ADA and the Rehabilitation Act, that seeks damages—a remedy not available under the Individuals with Disabilities in Education Act.

Czyzewski v. Jevic Holding Corp. (15-659), which asks whether a bankruptcy court may authorize the distribution of settlement proceeds in a manner that violates the statutory priority scheme.

Visa Inc. v. Osborn (15-961) and Visa Inc. v. Stoumbos (15-962) (consolidated), which ask whether allegations that members of a business association agreed to adhere to the association's rues and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act.

Bank of America Corp. v. Miami (15-1111) and Wells Fargo v. Miami (15-1112), which ask: (1) whether the term "aggrieved" in the Fair Housing Act imposes a zone-of-interests requirement more stringent than the injury-in-fact requirement of Article III; (2) whether, by limiting suit to "aggrieved person[s]," congress required that a FHA plaintiff plead more than just Article III injury in fact; (3) whether Miami is an "aggrieved person" under the FHA; and (4) whether a plaintiff can satisfy the FHA's proximate-cause requirement by pleading that a defendant could have foreseen that the plaintiff might ultimately lose money through some theoretical chain of contingencies.

Lynch v. Morales-Santana (15-1191), which asks: (1) whether Congress's decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than other citizen parents of foreign-born children violates the Equal Protection Clause of the Fifth Amendment; and (2) whether the court of appeals erred in conferring U.S. citizenship on the respondent in the absence of any express statutory authority to do so.

We look forward to bringing you summaries of these and other cases next term, assuming they're not all 4-4 splits!

Before we leave you alone for the summer, we'd like to extend our gratitude once again to our colleagues in the Appellate Group (and beyond) for assisting with the end-of-term rush, in particular Jenny Chou, Ben Daniels, Ivana Greco, David Norman, and Judd Lindenfeld. And a special thanks to fellow Court Fan Jeff Babbin for his shamefully uncredited assistance throughout the term. And most of all, thanks to all of you for reading.

Until October!