Supreme Court Update: Order List 9/26/16

October 3, 2016 Supreme Court Update

Greetings, Court fans!

It's (still) the first Monday in October, which means the Supreme Court (and the Update) are back in action. Actually, The Eight dug in a bit last week, issuing cert grants from their September 26th "long conference." We'll have more in a minute on the eight new cases the Court set for argument this term. But first, let's talk about the orders coming out of this morning's conference, where all of the other petitions that piled up over the summer were unceremoniously denied.

The biggest was the Court's denial of the Government's petition for rehearing in United States v. Texas (No. 15-674), the challenge to the Obama administration's deferred-action immigration policy that split the Court 4-4 last term, resulting in a per curiam affirmance of trial judge's nationwide injunction against enforcement of the policy. Back in July, the administration petitioned for rehearing before a full 9-member Court, but this morning The Eight (or at least four of them, as a petition for rehearing requires a majority vote) said no thanks. That means the case will return to the Texas district judge whose preliminary injunction was affirmed for a full trial and (one presumes) a permanent injunction. Of course, the degree to which the Justice Department continues to defend the policy will depend an awful lot on who appoints the next Attorney General.

Another notable denial came today in O'Bannon v. NCAA (No. 15-1167) and NCAA v. O'Bannon (No. 15-1388), in which both the NCAA and former college basketball star Ed O'Bannon sought review of a Ninth Circuit decision holding that the NCAA's amateurism rules violate federal antitrust law, but nevertheless vacating a district court order that would have required the NCAA to permit schools to pay student-athletes up to $5,000 per year in deferred compensation.

The Court also denied review in the Washington Redskins trademark case, but the question the team presented—whether the disparagement provision of the Lanham Act violates the First Amendment—is already pending before the Court this term, thanks to its grant in Lee v. Tam (No. 15-1293), a case arising out of a self-described "Chinatown Dance Rock" band's efforts to register its name, The Slants, as a protected trademark. The Court granted the Government's unopposed petition in Lee last week, along with seven other cases:

Endrew F. v. Douglas County School District (No. 18-827) asks: "What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act?"

McLane Co. v. EEOC (No. 15-1248) asks the Court to settle a circuit split over whether a district court's decision to quash or enforce an EEOC subpoena should be reviewed de novo (as the Ninth Circuit does), or deferentially, as eight other circuits do.

Expressions Hair Design v. Schneiderman (No. 15-1391) asks whether New York's prohibition on merchants charging surcharges for customers who use credit cards violates the First Amendment by restricting speech conveying price information.

Goodyear Tire v. Haeger (No. 15-1406) and Musnuff v. Haeger (No. 15-1491) ask whether a district court must tailor compensatory civil sanctions imposed under its inherent powers to harm directly caused by sanctionable misconduct and whether a court may use its inherent powers to award attorneys' fees as a sanction against a party for actions by its attorney that are not fairly attributable to the party's own subjective bad faith.

Lynch v. Dimaya (No. 15-1498) asks whether the general definition of "crime of violence" in the Immigration and Nationality Act is unconstitutionally vague.

Nelson v. Colorado (No. 15-1256) asks whether Colorado's requirement that a defendant whose conviction is reversed must prove his innocence in order to get back money paid in fines and penalties violates due process.

Finally, a case out of our own neck of the woods. In Lewis v. Clarke (No. 15-1500), the Court will consider whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment. In this case, the plaintiffs were injured when their car was struck by a limousine driven by William Clarke, who was employed by the Mohegan Tribe to drive patrons back and forth from Mohegan Sun casino. Because the Tribe itself was immune, the plaintiffs withdrew their claims against it and proceeded only against Clark individually. The Connecticut Supreme Court held that tribal sovereign immunity still bars the claims because the accident occurred while Clark was acting within the scope of his employment. The Supreme Court will now review—the first time a Connecticut Supreme Court decision has gone to D.C. since Kelo v. City of New London in 2005.

The total number of cases accepted for OT16 now stands at 40—still well below the number the Court has traditionally accepted by the start of the term. Time (and maybe an election) will tell whether the justices—eight or nine of them—pick up the pace during the year. Either way, we'll be following closely and bringing you the latest.

Stay tuned!