Supreme Court Update: Orders

January 17, 2018 Supreme Court Update

Greetings, Court Fans!

As we continue to wait for the second signed opinion of the OT17, The Nine (or at least four of them, in various potential configurations) have made significant headway in filling out the term's dance card. On Friday, the Court added twelve new cases to its docket, including a few that may compete for attention in what is already a crowded field of potential blockbusters this Term.

With two redistricting cases already on the docket, the Court quadrupled down on gerrymandering as an OT17 theme by adding another two cases, arising out of challenges to Texas's state and congressional legislative districts. The two new cases, which have been consolidated for argument and captioned Abbott v. Perez (Nos. 17-586 & 17-626), primarily concern racial gerrymandering (in common with Benisek v. Lamone, one of the redistricting cases already on the docket), along with claims under the Voting Rights Act. Notably, the Court yesterday denied review of two other challenges to Texas's legislative maps, which primarily alleged partisan gerrymandering (in common with Gill v. Whitford, the other pending redistricting case on the docket). Because redistricting cases fall under the Court's mandatory jurisdiction, the Court didn't "deny certiorari" in these cases, but rather dismissed them "for want of jurisdiction." That is a somewhat loaded term when the main issue surrounding partisan-gerrymandering claims is whether they are justiciable. Does the fact that the Court dismissed the Texas partisan-gerrymandering cases (rather than holding them, pending a resolution in Gill) suggest a view on that ultimate question? Perhaps, but it would be a mistake to get ahead of ourselves, since there were other jurisdictional problems with the partisan challenges that could explain the Court's decision to dismiss them while accepting review of the racial-gerrymandering cases challenging the same districts. In any event, we don't need six redistricting cases on the docket to know that gerrymandering (of all sorts) is definitely on the Court's mind this term.

Unlike redistricting cases, which even in "ordinary" terms take up a fair amount of the Court's docket (thanks in part to that mandatory jurisdiction), it's been ages since the Court took up the issue presented in South Dakota v. Wayfair, Inc. (No. 17-494), another potential blockbuster on Friday's order list. In Wayfair, South Dakota is expressly asking the Court to overrule Quill Corp. v. North Dakota (1992), which held that the dormant commerce clause prohibits states from requiring mail-order retailers to collect sales tax unless the retailer has a physical presence in the state. A few terms back, Justice Kennedy penned a solo concurrence in Direct Marketing v. Brohl (2015), calling for Quill to be reexamined in light of the significant evolution in technology and consumer behavior over the past quarter century that has undermined the rationale behind Quill and the even older decisions that Quill reaffirmed. Given the state of state coffers across the country, you can expect at least 49 amici in support of the petitioner in this one…

Still another contender for OT17 term-in-review treatment is Lucia v. Securities and Exchange Commission (No. 17-130), which concerns whether the SEC's administrative law judges are "officers," under the Appointments Clause of the Constitution, or merely employees. If ALJs are "officers," then they must be appointed by the Commissioners of the SEC (or by the President or a court of law), and cannot simply be hired by SEC staff, as has traditionally been the practice. Lucia presents an interesting and important question in its own right, but is also notable in light of the position the Solicitor General has taken on that question. Traditionally, the Government has argued that ALJs are employees, not officers, and maintained that position when Lucia was argued en banc in the D.C. Circuit. But in its response to Lucia's cert petition, the Government reversed its position and encouraged the Supreme Court to review. The reversal is all the more notable because the SEC has since ratified the appointment of its ALJs to conform with the Appointments Clause, rendering the issue moot, at least a general matter (separate from the particular relief sought by Lucia). All of this has led some to speculate that what the Solicitor General really wants is for the Court to decide not only that the SEC's ALJs are "officers," but that they are not therefore subject to statutory protections against removal without cause. The Order granting Lucia's cert petition does not allude to this additional question, though that would not preclude the Court from addressing it incident to the primary issue in the case. With the parties in agreement on that question, the Court will presumably appoint an amicus to argue the position that the Government has traditionally advanced, i.e. that SEC ALJs are employees, not officers.

While we can't go into depth on all the other cases that were added to the docket on Friday, here's a quick look at the QPs:

  • WesternGeco LLC v. ION Geophysical Corp. (No. 16-1011) asks whether the presumption against extraterritoriality prevents a patent owner from recovering lost profits arising outside the United States, even under a statute that expands the definition of infringement to include exporting components of a patented invention to be combined and used abroad;
  • Lamar, Archer & Cofrin, LLP v. Appling (No. 16-1215) asks whether a debtor's false statement about a specific asset can constitute a "statement respecting the debtor's . . . financial condition," so as to exempt it from the general rule that debts obtained by false representations are non-dischargeable in bankruptcy;
  • Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (No. 16-1220) addresses a circuit split over whether and to what extent U.S. courts should defer to a foreign government's interpretation of its own law;
  • Lagos v. United States (No. 16-1519) asks whether the Mandatory Victims Restitution Act permits a court to order restitution for expenses that a victim incurred in investigating the crime internally when such investigation was neither required nor requested by the Government;
  • Washington v. United States (No. 17-269) asks whether the Washington State violated a treaty guaranteeing fishing rights to Native American tribes by constructing road culverts that restrict the passage of salmon, and if so, whether the State may be ordered to replace many of those culverts;
  • Pereira v. Sessions (No. 17-459) concerns the requirement that immigrants be continuously present in the United States for ten years to qualify for cancellation of removal, and whether the government may stop immigrants' accrual of time by serving them with a "notice to appear" for immigration proceedings that does not specify items such as the time and place at which the proceedings will be held;
  • Wisconsin Central Ltd. v. United States (No. 17-530) asks whether stock options that a railroad issues to its employees are taxable compensation under the Railroad Retirement Tax Act;
  • Chavez-Meza v. United States (No. 17-5639) calls upon the Court to resolve a circuit split over the extent to which a district court must explain its decision on a defendant's motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

On top of all that, there remains a fair chance that the Court will take on one or more of the hot-button cases surrounding the Trump Administration's immigration policies this term. Right after New Year's, the Government filed a cert petition in Trump v. Hawaii (No. 17-965), seeking review of the Ninth Circuit's decision affirming a nationwide injunction on several aspects of the third iteration of the Administration's so-called Travel Ban. The respondents rapidly turned around a brief in opposition urging the Court to act quickly if it intends to review. This enabled the Court to distribute the petition for consideration at Friday's conference. If cert is granted, it would still be possible for the case to be argued and decided on an expedited schedule this term. It may also be possible for the Court to take up the Trump Administration's attempt to rescind DACA (Deferred Action for Childhood Arrivals), or so the Administration hopes. It announced yesterday that it would take the unusual step of seeking cert before judgment in Regents of the University of California v. U.S. Dep't of Homeland Security (No. __), where a California district judge has enjoined the Administration from rescinding the Obama-era policy.

Given all this excitement in a term already packed with potential blockbusters, it's clear that June is going to be a busy month. So maybe now would be a good time to introduce a new member of our team. Dave Roth, a colleague in the Appellate and Complex Legal Issues Group, has been a frequent "ghostwriter" of past Updates and, well, now that we really need him it's about time to give credit where it's due. Together, we look forward to bringing you summaries of all the remaining decisions of this momentous term, beginning . . . sooner or later . . . with decision # 2.