With the Supreme Court back in session, the fireworks have already started.  As discussed in the previous parts of this series, there are interesting cases working their way to the Supreme Court (with the next key decisions on same-sex marriage now due from the Sixth Circuit — probably toward the end of this month or in November) as well as several interesting cases in October and November.

We pick up in December.  Despite having more argument slots (12 arguments) than either October or November (10 arguments each), December seems to be more about technical cases specific to certain legal practice areas than cases of public significance with two major exceptions.

One case that has drawn a lot of attention is Young vs. United Parcel Services.  This case involves the intersection of several anti-discrimination statutes.  In particular, the Americans with Disability Act requires employers to provide reasonable accommodations to employees with a physical disability.  Title VII of the Civil Rights Act has (at least since 1978) provided that discrimination against a pregnant employee is illegal gender discrimination.  The issue posed in this case is whether — if pregnancy causes a temporary inability to perform certain job-related tasks — employers need to make the same accommodations to the pregnant employee that they would make for an employee who could not perform those tasks because of a permanent disability.

The other significant case for December is Elonis vs. United States.  Technically, the issue in this case is the mental state required by a federal criminal statute.  (Traditionally, a crime requires both the commission of a prohibited act and a mental state — i.e. that the act is reckless or done knowingly or done intentionally).  What makes the case significant is that the statute in issue is the federal harassment statute which prohibits the act of threatening others.  Because the crime involves speech, there is a First Amendment component to the case.  While it has probably been most noticed in the campaign finance area, since the Chief Justice and Justice Alito joined the Supreme Court, there has been a lengthy list of pro-free speech decisions.  To the extent that the First Amendment plays a significant role in this decision, it could have a substantial impact on similar state laws (including laws criminalizing the violation of order of protection/restraining orders).  These laws tend to be use to protect victims of domestic violence from continued threatening conduct from their exes, so a broad opinion that greatly restricts the conduct that can be reached such laws could result in law enforcement being unable to step in before the ex actually commits a new assault.

At this point, the Supreme Court has not yet set its January argument docket (presumably ten cases).  Even before last weeks grant of eleven new cases (the most significant of which were covered in Part 1), the Supreme Court already had five cases available for argument.  Three of these cases are potentially of general interest/political significance.

First up is another free speech case — Reed vs. Town of Gilbert.  Apparently, the town’s sign ordinance imposes greater restrictions on temporary signs for churches than it does for other temporary signs.  The challengers assert that there rules are “content-based” which triggers closer scrutiny of the rules.  On the one hand, a regulation that discriminates against religion seems to be content-based.  On the other hand, if a regulation that imposes one set of rules for all of a certain type of service (here provision of religion) is considered to be content based, then the same principle would seem to apply to any regulation of sign based on the type of business (i.e. would also preclude restrictions on temporary signs by convenience stores).

Second, we have a very weird case that could raise very significant political issues — Kellogg Brown & Root Services vs. United States ex rel. Carter.  Federal law contains a statute that suspends the statute of limitations (the time limit for filing a case) for “offenses” involving fraud against the federal government during war-time. This case involves the attempt (by a private person asserting a civil fraud claim on behalf of the government) to claim that the suspension also applies to civil fraud claims.  (Federal law has a provision allowing individuals to keep a portion of the proceeds if they discover fraud against the federal government and bring a case against the party that defrauded the government.)  While the easy way to resolve this case is to hold that the statute is limited to criminal offenses and does not cover civil claims (or to decide it on one of the other issues in the case), one of the strands of the argument in this case is whether it requires a formal declaration of war before the U.S. is “at war” for the purposes of this statute.  If something less than a formal declaration of war is enough, what is the test for determining if the U.S. is “at war” and whether the war has ended?

The last of the cases from last Spring’s list of granted cases that looks potentially significant is Mach Mining vs. EEOC.  Part of Title VII requires employees to file a complaint with the EEOC who will then investigate and determine whether to authorize the employee to file a lawsuit against the employer.  Within the statutes governing this procedure applies when the EEOC finds an actual discriminatory practice (as opposed to merely a discriminatory act against the individual employee).  In that circumstance, the EEOC is supposed to take appropriate steps to reach a settlement eliminating this practice before filing a lawsuit.  In this case, the employer alleges that the EEOC did not do enough to try to settle the case before filing the lawsuit.  The question is the degree to which a court can give relief to the employer upon a finding that the EEOC filed the case before taking appropriate steps to settle the case.