Supreme Court Update: Orders

December 15, 2017 Supreme Court Update

Greetings, Court Fans!

While the first opinion of the term came a little early this year, we've now gone five weeks without a second and it looks like we'll be waiting several more weeks, since the December sitting has come to a close and the next public session isn't until January 8. Assuming the Justices do issue an opinion that day, it will, according to, be the longest wait between a first and second opinion in argued cases since 1869. In fairness to the Chase Court, it did issue 18 decisions in unargued cases on December 1, 1868. Then again, in fairness to the Roberts Court, none of those decisions was as monumental as Hamer v. Neighborhood Housing Services of Chicago. (What, you'd forgotten it already?)

While The Nine have been a bit sluggish on the opinions front, we can't say they haven't been busy. On the contrary, over the past two weeks, One First Street has been abuzz with other news, including significant orders concerning the Travel Ban and DACA and cert grants in seven new cases. Let's review.

Most notably, as you may have read last week, the Court granted the Government's applications to stay preliminary injunctions entered by district courts in Maryland and Hawaii against the enforcement (in whole or in part) of the Trump Administration's so-called Travel Ban, which (in its third iteration) prohibits entry to nationals of Iran, Libya, Yemen, Somalia, Syria, North Korea, Venezuela, and Chad. The addition of those last three (non-Muslim majority) countries appears to have assuaged the concerns of some judges and justices that the Order is an unconstitutional "Muslim Ban." Only Justices Ginsburg and Sotomayor dissented from the Court's orders staying the injunctions. Meanwhile, the appeals in the Fourth and Ninth Circuits have proceeded swiftly, with arguments last Friday and Wednesday, respectively. Inasmuch as the Court made a point of stating, in each order, that "we expect that the Court of Appeals will render its decision with appropriate dispatch," it's reasonable to anticipate cert petitions, one way or another, early in the new year. In the meantime, though, the Travel Ban went into effect last Friday and will remain in force pending a final resolution of the various challenges.

In another high-profile immigration matter—a challenge to the Trump Administration's termination of the Obama-era Deferred Action for Childhood Arrivals (DACA) program—the Court issued an unusual order staying three orders of the District Court for the Northern District of California that required the Department of Homeland Security to turn over additional discovery to the challengers and expand the administrative record to include materials that had not been presented by DHS. Justice Breyer dissented, joined by Ginsburg, Sotomayor, and Kagan. In Breyer's view, because "the Government's arguments d[id] not come close to carrying the heavy burden that the Government bears in seeking" a writ of mandamus (a "drastic and extraordinary remedy reserved for really extraordinary causes"), there was no basis for granting a stay of the District Court's orders pending review of the Government's petition.

Now, if you're thinking that a Supreme Court with time to manage lower court discovery disputes is in need of more cases, you'll be pleased to learn that the Court added seven to its docket last week. The most notable is Benisek v. Lamone (No. 17-333), which will be the second partisan gerrymandering case the Court considers this term, having already heard argument in potential blockbuster Gill v. Whitford (No. 16-1161) back in October. Taking on a second partisan gerrymandering case, rather than holding it in abeyance pending a decision in Gill, is . . . interesting. But Benisek is different from Gill in a few important respects. First, it is a challenge to a single gerrymandered district rather than the statewide challenge presented in Gill. Second, while the challengers in Gill pursued an "efficiency gap" theory, the Benisek challengers offer a First Amendment retaliation theory for why partisan gerrymanders are unconstitutional. Last—but quite possibly not least, given the Chief Justice's concern that deciding partisan gerrymander cases will make it appear that the Court is picking electoral winners and losers—Benisek is a challenge brought by Republicans to a district created by a Democratic legislature. Whatever the reason for the Court's noting "probable jurisdiction" (these cases are heard on direct appeal, not by writ of certiorari) it's probably a safe bet that we'll be reading opinions in Benisek and Gill on the same day in late June.

Here are the other cases we'll be looking forward to down the road:

Sveen v. Melin (No. 16-1432) asks whether applying a state "revocation-upon-divorce statute" to a contract signed before the statute's enactment violates the Contracts Clause.

Koons v. United States (No. 17-5716) and Hughes v. United States (No. 17-155) each concern a district judge's ability to reduce an inmate's sentence if the inmate was sentenced under a Sentencing Guidelines Range that has subsequently been lowered by the U.S. Sentencing Commission. In Koons, the Court will consider whether an inmate is eligible for such a sentence reduction where he was subject to mandatory minimum but received a below-minimum sentence not as a result of the subsequently lowered Guidelines range, but instead based upon a substantial-assistance motion filed by the Government. In Hughes, the Court is asked to determine whether a defendant is eligible for a sentence reduction based upon a retroactive amendment to relevant Guidelines range if he was originally sentenced pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, which includes an agreement on a specific sentence or sentencing range. But first it will have to decide which of the opinions in the Court's 4-1-4 decision in Freeman v. United States (2011), which involved a similar question, provides controlling rule of decision.

United States v. Sanchez-Gomez (No. 17-312) asks whether the Ninth Circuit erred by asserting authority to review an interlocutory challenge to pretrial physical restraints and in ruling on that challenge notwithstanding its recognition that the pretrial detainees' individual claims were moot.

Upper Skagit Indian Tribe v. Lundgren (No. 17-387) asks whether a court's exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity even when the tribe has not waived immunity and Congress has not unequivocally abrogated it.

China Agritech, Inc. v. Resh (No. 17-432) asks whether the American Pipe rule tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

With those additions, OT17 is up to 64 cases, nearly a full slate these days. Now it's about time the Court started deciding some of them!

Happy Holidays!