This past Friday, the Supreme Court returned from its Christmas recess with the January arguments scheduled to begin on Monday. This time of year is a transition period on the Supreme Court calendar. Enough time has passed since the first arguments that the Supreme Court is beginning to issue opinions from the early arguments. On the other hand, on cases that the Supreme Court decides to hear, there is barely enough time between this month’s orders accepting review and the April argument session to allow cases to be heard and decided this year. Starting in February, any cases accepted will be for the fall’s argument dates with decisions likely to be issued in 2016.
The Supreme Court has already announced its argument schedule for January (10 arguments on five days) and February (11 argument on six days). Based on the grants before the Christmas recess (and the dismissal of one of those cases when the petition disappeared and did not file a brief), the Supreme Court has 10 cases that could be (probably will be)heard on the six days of the March argument session. On Friday, the Supreme Court rescheduled a case from earlier this year for a second round of briefing and argument (on an additional issue) and the rest of the April argument session will be filled by the cases that the Supreme Court decide to grant review on this month.
January has a lot of cases of moderate interest. First up is Reed vs. Town of Gilbert. The issue involves a the Town’s regulations on temporary signs — a regulation that favors certain categories of signs (political) over others (churches and other non-profits) — and whether those categories are “content-neutral” or not (a fact determines what test should be applied to review of the ordinance with content-neutral ordinances normally being upheld). Next up is Mach Mining vs. Equal Employment Opportunity Commission. The issue involves the EEOC’s duty to attempt to negotiate a settlement before filing suit against a company that discriminates based on race or gender. The company wants the Supreme Court to rule that courts can dismiss an otherwise valid claim of discrimination if the court believes that the EEOC did not act fairly in the pre-filing negotiations. During the second week of arguments, the Supreme Court will hear Williams-Yulee vs. Florida Bar. This case involves a rule barring judicial candidates from personally soliciting donations to their campaigns. Needless to say in a court that has been hostile to campaign finance regulations, those supporting this rule may face a very hostile court. Finally, in Texas Department of Housing and Community Affairs vs. Inclusive Communities Project, the Supreme Court will decide if the Fair Housing Act (like other anti-discrimination laws) allows a claim based on discriminatory impact (that the rules actually do discriminate against minorities) or whether the victims of discrimination must show that the rule or practice was intended to discriminate against minorities.
In February, the big case is King vs. Burwell — the case on subsidies under the Affordable Care Act. In the latest attempt by conservatives to gut the bill, the petitioners are claiming that the proper way to interpret the statute is that the subsidies are only available for people who purchase insurance on a state-run exchange but that subsidies are not available in those states in which the federal government runs the exchange because the state has not established an exchange. Needless to say, as most states have not established an exchange, if the Supreme Court finds that the subsidy is only available on state-run exchanges, a significant number of people will lose the subsidy and will not be able to afford health insurance. Also in February, the Supreme Court will hear Arizona State Legislature vs. Arizona Independent Redistricting Commission. This case involves whether the U.S. Constitution requires that state legislatures draw congressional district lines or if that duty can be reassigned by the voters (or legislature) to an independent commission.
Looking at the likely March arguments, the big case is actually three consolidated cases challenging whether the EPA improperly gave insufficient weight to potential costs in enacting regulations on hazardous pollutants generated by electrical companies. Additionally, there is another significant First Amendment case, Walker vs. Texas Division, Sons of Confederate Veterans, concerning the ability of states to refuse to allow certain groups the ability to have a specialty license plate.
Except for the one case scheduled for re-argument (a technical federal criminal law case), the April session is still a mystery. The big potential set of cases are a series of cases on same-sex marriage. In September, most observers expected the Supreme Court to grant review on this issue when faced with a set of cases from states that had lost in the Fourth and Tenth Circuit. Now, the Supreme Court is faced with a set of cases from the Sixth Circuit in which the states won. The Supreme Court has three potential options: 1) grant full review; 2) let the cases from the Sixth Circuit stand (leaving it to each circuit to decide whether same-sex marriage must be permitted in that circuit); or 3) grant partial review. While I will probably be wrong, my hunch is that the Supreme Court will decide to grant partial review. In the same-sex marriage cases, there are two separate issues — whether the states must recognize same-sex marriages from other states and whether the states must permit same-sex marriages to performed in their state. The Supreme Court has already held that the federal government may not deny recognition to same-sex marriages; so it will be somewhat easy for the Supreme Court to extend that rule to the states. The Supreme Court could then punt on the actual marriage issue by asking the Sixth Circuit to reconsider that issue. With 36 states currently recognizing same sex marriage (and only four states in a circuit that has upheld restrictions on same-sex marriage), a recognition ruling would undermine the handful of remaining bans on same-sex marriage.
Beyond same-sex marriage, there is a redistricting case from Virginia (striking down that state’s congressional districts). a case on whether a state court can enter an order of protection against a non-resident, and several additional campaign finance cases. Most of the “interesting” cases were on this past Friday’s conference, so the Supreme Court might have already denied all of these case. In recent years, however, the Supreme Court has had a tendency to bump cases to a second conference before granting review so some or all of these cases might be bumped to this Friday’s conference. UPDATE: Supreme Court declined the order of protection and the campaign finance cases. The Supreme Court also declined to take a same-sex marriage case from the Fifth Circuit (allowing that court time to decide the case). The Supreme Court has apparently passed the Sixth Circuit same-sex marriage cases and the Virginia re-districting case to this Friday’s conference.