Supreme Court Update: Orders

October 20, 2017 Supreme Court Update

Greetings, Court Fans!

We're back with some more non-opinion news from The Nine to wrap up the week (and the October sitting). Perhaps the biggest SCOTUS news this week occurred outside of Washington, where district judges in both Hawaii and Maryland issued nationwide preliminary injunctions (of slightly different scope) against the latest iteration of President Trump's "travel ban" setting the challenges up for a likely spot on the Supreme Court's calendar, probably within this term.

While the travel ban challenges are likely to land in front of the Court, four new cases are definitely headed to First Street by writ of certiorari, including United States v. Microsoft Corp. (No. 17-2), which you know is a potential blockbuster just from the names of the parties. Given the issue in the case—whether U.S.-based email providers must comply with a warrant requiring them to turn over email records if those records are maintained abroad upon receiving a warrant—it seems likely that the decision may deliver on the caption's promise, though the decision will likely turn on the extraterritorial application of a particular (amendable) statute, the Stored Communications Act, not on the Fourth Amendment or other constitutional provisions. The Court certainly seems to think it's an important issue, inasmuch as it granted cert despite the absence of a circuit split. In addition to Microsoft, the Court granted cert in three other cases this week:

Dahda v. United States (No. 17-43) asks "[w]hether Title III of the Omnibus Crime Control and Safe Streets Act of 1968 . . . requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction."

Currier v. Virginia (No. 16-1348) asks "[w]hether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue-preclusive effect of an acquittal."

Ohio v. American Express Co. (No. 16-1454) asks whether, in order to prove anticompetitive effects under the Sherman Act's "rule of reason" (and thereby shift the burden of establishing procompetitive effects to the credit-card company), the government must show not only that the credit-card company's "anti-steering" provisions stifle price competition on the merchant side of the platform, but also that those anticompetitive effects are not outweighed by any benefits on the cardholder side.

But despite the four new grants, the Court's docket only expanded by three, because it also granted a joint motion by the parties in the securities-fraud case Leidos v. Indiana Public Retirement System (No. 16-581) to remove the case from the calendar, apparently because the parties are near a settlement.

Finally, a couple of cert denials prompted statements from disparate corners. Justice Sotomayor, joined by Ginsburg and Breyer, dissented from the denial of certiorari Truehill v. Florida (No. 16-9448) and Oliver v. Florida (No. 17-5083), related death-penalty cases challenging jury instructions that "diminished the jurors' sense of responsibility as to the ultimate determination of death by repeatedly emphasizing that their verdict was merely advisory." Though the Florida Supreme Court had previously rejected similar challenges, that was before the U.S. Supreme Court, in Hurst v. Florida (2016), struck down the State's sentencing scheme, which made the judge the final decision-maker on whether the death penalty should be implemented. Now that Florida jury's bear that grave responsibility, Truehill and Oliver contended that the state Supreme Court should revisit the instruction issue. But the Florida Supreme Court rejected their appeals without addressing their Eighth Amendment challenge. Justice Sotomayor would have granted cert (and possibly immediately vacated and remanded with an order requiring the Florida court to address the instructional issue) given the high stakes of death-penalty cases.

Meanwhile, Justice Gorsuch, joined by the Chief and Justice Alito, issued a statement respecting the denial of certiorari in Scenic America v. Department of Transportation (No. 16-739), which concerned whether agency deference ought to apply to the Federal Highway Administration's interpretation of an agreement it entered into with a billboard company under the Highway Beautification Act. Justice Gorsuch, known to be antagonistic to Chevron deference generally, suggested that the Court should take up this question in an appropriate case, but that Scenic America's particular appeal was too factbound to make it a good vehicle.

That's it for this week. The Nine will be back in action for their November sitting on October 30th, but we'll let you know if they've got anything more to say in the interim.