First Monday 2014

It is the first Monday in October, the traditional opening day for the annual sessions of the Supreme Court of the United States. Contrary to some rather unseemly public requests, Justice Ginsburg has not resigned to ensure that a Democrat will name her successor; much like Tom Brady, she intends to stay until she can’t do a good job anymore. All of the Justices appear to be in good health, appropriate for their various ages (presently, we’ve one octogenarian; three septuagenarians; three sexagenarians; and two young ‘uns — the Chief is 59 and Justice Kagan is 54). By all indications, all nine of them intend to only leave the Court feet first.

So we have the same bench as we did last year — four reliably “liberal” votes in Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan; four reliably “conservative” votes in Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, and one mostly “conservative” but sometimes not conservative vote in Justice Anthony Kennedy.

So here’s what I think will be some of the bigger cases that will be on the docket and resolved by some point in June of 2015.

Civil Rights:

United Parcel Service routinely offers light duty work to employees who are hurt on the job or otherwise eligible for accommodations under the Americans with Disabilities Act. But workers who fall pregnant are not offered light duty work; they are required to work their regular jobs until they can’t anymore, and then typically are brought back after their pregnancies are completed and put back to their same regular jobs. Now, pregnancy can be a “disability” under the ADA in a wide range of circumstances, but Young v. United Parcel Service looks at the issue from the standpoint of a different law, the Pregnancy Discrimination Act. This case is relevant to my interests — pregnancy discrimination cases have proven big winners for my firm in recent years.

Samuel James Johnson pled guilty to illegally shipping firearms, a Federal felony. After being released from prison, he was found in possession of a short-barreled shotgun. Johnson v. United States asks whether his conviction for possession of a firearm is a “violent” felony and therefore subject to sentencing enhancements. All that is at issue here is mere possession — no one claims that Mr. Johnson was actually using the shotgun for anything. So is “mere possession” of this weapon a “violent” felony?

Consumer Law:

Federal anti-trust law exempts from most regulation an action undertaken by a state. But in North Carolina Board of Dental Examiners v. Federal Trade Commission the Fourth Circuit decided that the North Carolina Board of Dental Examiners might not really be a “state actor” given the fact that six of its eight members are dentists chosen by an election of existing dental license holders, and the seventh member is a dental hygienist chosen by licensed dental hygienists. So is this a public regulatory agency entitled to protect the public interest from non-dentists selling tooth-whitening products and services, or is it a private guild unfairly excluding competition to the detriment of the public?

Let’s say you’re doing a refinance of your distressed home mortgage. And the lender sends you a ton of forms. You’ve got to sign then because the traveling notary is there. Actually, that’s not so bad — the Truth in Lending Act gives you three days to rescind after the paperwork is all signed, and the bank has to give you a disclosure that you have three days after being told that you can rescind to do the rescission. And you decide that no, this is a bad deal, and you want to rescind. The law says that you can rescind by “notifying the creditor of [your] intent to do so.” Only how do you go about doing that? If you live in the Third, Fourth, and Eleventh Circuits, you just send a letter within three days of getting the disclosure, but that time ends three years after the loan is funded even if the bank never gave you the disclosure paperwork (probably because a clerk screwed up more than because of some malicious intent). But if you live in the First, Sixth, Eighth, Ninth, and Tenth Circuits, then you do it by filing a lawsuit seeking rescission. Which is rather more expensive. And if you live Louisiana, Mississippi, or Texas, well, not only do you not have an interpretive rule at all for a situation like this, but your Federal appellate court’s website is pretty damn ugly, too. So Jesinoski v. Countrywide Home Loans, Inc., and its companion cases Keiran v. Home Capital, Inc. and Takushi v. BAC Home Loans Servicing, LP look to resolve that split and create a single rule for the whole country. Rather a lot of money is at stake here.

Criminal Procedure:

In Heien v. North Carolina, a police officer pulls over the defendant for an apparent equipment violation — one of the two brake lights on the vehicle was out. While engaged in the traffic stop, the officer sees and searches a plastic baggie, discovering cocaine. Problem here is not the search of the vehicle after the traffic stop — the problem is the officer got the law wrong. In North Carolina, a vehicle can drive with only one working brake light, so there was no equipment violation. Should the evidence gathered after the stop be suppressed?

Certain kinds of persons (in many states, this includes teachers and doctors) are called “mandatory reporters” which means that if they come across what is reasonably believed to be evidence of child abuse, they must report what they’ve observed to state authorities. Ohio v. Clark asks the Court to decide whether doing so renders such a “mandatory reporter” an “accuser” for purposes of the Confrontation Clause.

Perhaps a bit more amusingly (other than to the defendant), in Yates v. United States, the Court will ask whether the anti-spoliation provisions of the Sarbanes-Oxley Act of 2002 apply to the destruction of fish. The story: John Yates is a commercial fisherman from Florida, whose catch was inspected by the Florida Fish and Wildlife Commission and the warden found seventy-two red groupers which were purportedly undersize. Yates’ defense was that the warden failed to measure the length of the fish with their mouths open and their tails squeezed. But three of fish themselves went missing from the hold between the time of the at-sea inspection and the time Yates pulled in to the dock, and Yates was convicted of disposing of the fish before they could be used or preserved or memorialized as evidence against him (presumably by throwing them overboard). What does this have to do with securities fraud? SOX makes it a crime to dispose of any “tangible object” with the “intent to … obstruct a criminal prosecution,” a fish is a tangible object, and taking undersized fish is a crime. (And Yates must have been a serious a-hole to somebody to have wound up on a Federal prosecutor’s docket like this from a state-issued fish-poaching ticket which normally would have resulted in a fine; in traffic court, I’ve heard that called a “sixty-six with a bullet.”) Also at issue is whether it’s enough for the state to show that the undersize fish count was different at sea and at dock, or whether a further showing of the warden is necessary (i.e., “I saw three fish being thrown overboard” or “This time, I squeezed the tails”).

Federalism and Separation of Powers:

A rather hoary old legal concept called the “nondelegation doctrine” will be dusted off and tried on for size again in Department of Transportation v. Association of American Railroads, which will determine whether it is appropriate for Congress to delegate its rulemaking authority regarding standards regarding when preference in rail access is granted to Amtrak passenger trains, specifically to the Federal Railroad Administration and Amtrak.

If you happened to have been born in Jerusalem, and you hold a United States passport, you may have noticed that your passport identifies your place of birth by the city, but does not identify a particular country. The State Department began doing that quite some time ago to avoid controversy, which after all might rather substantially inconvenience an American traveler who encountered a customs agent somewhere who decided not to recognize the existence of a nation-state called “Israel.” But in 2002, Congress passed a law compelling the State Department to list “Israel” as the country in which the city of Jerusalem is found, and the State Department has proceeded ever since to flatly ignore that law. So in  Zivotofsky v. Kerry we will finally find out if the State Department’s claim that the President has exclusive authority to decide what gets put in passports or not holds water.

First Amendment (and related similar statutory rights):

An exception to the First Amendment’s general protections to speech is a prohibition against a “true threat.” What is a “true threat,” you ask? Good question — and we’ll know the answer a whole lot more after the case of Elonis v. United States is decided — because at issue there is whether a prosecution for a “true threat” requires that the government prove the speaker’s subjective intent in making the challenged statement, or whether it is sufficient for the government to prove that a “reasonable person” would regard the statement as threatening, something that I presume is called an “objective” standard.

Holt v. Hobbs sees a challenge under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), something of a companion law to the RFRA that was at issue in last year’s Burwell v. Hobby Lobby case. Gregory Houston Holt, a Muslim who also goes by the name Abdul Maalik Muhammed, is incarcerated in Arkansas, which requires that its male prisoners shave their facial hair. Holt claims a religious obligation to wear a beard of at least a half of an inch in length, and wants the prison to make an exception to its rule so he can wear a beard. Boring stuff, right? No way; this is the case I’m watching the closest on the whole docket. Why? Well, how about this for starters: Mr. Holt successfully applied for review to the Court in propia persona and got certiorari granted on hand-written forms without legal assistance (I don’t know if he is a lawyer himself). So after getting certiorari, he has now become represented by a public interest firm — the same one that prevailed in Burwell as a principal counsel for Hobby Lobby, the Becket Fund for Religious Liberty. So this is particularly interesting because we’ll see how far the Court will go in extending the generous doctrines given to the RFRA in the Hobby Lobby case to RLUIPA, possibly signaling a dial-back of the holding in that case or, in the alternative, confirming that we are indeed entering a brave new world of individual religious belief being used to poke holes in all sorts of laws of general application.

Religion and speech rights intersect in the case of Reed v. Town of Gilbert. Gilbert, Arizona has local ordinances restricting the size of signs, and the times signs may be displayed, to advertise non-commercial events. A pastor of a local church says that these restrictions prevent him from advertising services at his church and therefore discriminate against his ability to practice his religion as well as to speak freely. The town’s only response has been to assert that the sign ordinance was enacted with a non-discriminatory motive and is entirely neutral as to content, and therefore is a permissible time, place, and manner regulation.

Samantha Elauf was 17 years old when she applied for a job at an Abercrombie & Fitch store in her home town of Tulsa, Oklahoma. Young Ms. Elauf, a Muslim, wears a head scarf for religious reasons. She and her friend who also worked there inquired of the manager if the head scarf was allowable, and the manager initially indicated yes, considering that another employee had been allowed to work wearing a yarmulke; the manager did want the scarf to be colorful and not black, and Ms. Elauf seemed to be good with that. The manager assumed Ms. Elauf was Muslim, but appropriately did not inquire about her religion during the job interview. But the manager wasn’t quite sure, and sought guidance from higher up the food chain. That higher-up said “no” to the scarf, and Ms. Elauf wound up not getting the job. Thing is, the higher-up was never told that Ms. Elauf was a Muslim; the inquiry was purely about the company’s dress code. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, the Court will be asked whether it is necessary to hold the company liable for religious discrimination in its hiring decision if the company decision-maker did not know of the aggrieved complainant’s religion when the questioned employment decision was made.

Voting and Gerrymandering

Of some interest to hard-core political wonks are some redistricting cases: Alabama Democratic Conference v. Alabama, and Alabama Legislative Black Caucus v. Alabama. Both deal with challenges to legislative maps drawn by the Alabama Legislature, and whether or not the Republican-majority Legislature went too far in gerrymandering the districts in their favor.

More interesting, from my perspective, is Arizona State Legislature v. Arizona Independent Redistricting Commission. It relates to the ability of state voters to take away redistricting powers from the state Legislature, where such district map drawing normally takes place, and to give that power to an extralegislative commission. Several states have adopted such commissions through citizen initiative, so this will have an effect on many states other than Arizona.

Finally in this area, keep your eyes on petitions for review from Wisconsin (Frank v. Walker) and North Carolina (North Carolina v. League of Women Voters) concerning voter ID laws. Perhaps we will see if the Voting Rights Act is truly a dead letter, as gloomy progressives have proclaimed in a multiplicity of jeremiads ever since last year’s decision in Shelby County v. Holder.

Water, Water Everywhere

An original jurisdiction case (meaning that it was first filed in the Supreme Court) originally filed in 1998 is going to oral arguments: Kansas v. Nebraska and Colorado. At issue are water allocation apportionments and draws from the Republican River, a secondary tributary of the Missouri River. These three states are parties to a compact — sort of a cross between a contract and a treaty between the states — that allocates how the river water is to be allocated.

Not yet granted certiorari but of interest are appeals regarding allocation of water away from agricultural use in California for the purpose of preserving a little fish called the Delta Smelt. The case is called Stewart and Jasper Orchards v. Jewell and the petition has not yet been decided upon. SCOTUS previously passed on the case, but a new Ninth Circuit decision adopting a strong application of the Endangered Species Act makes this more likely to earn review. My question is, if it rains a lot in California, will the case be mooted?

Wonk Bait

There’s some other stuff on the docket too, some cases of interest to subject matter experts regarding the finer points of Federal civil procedure and eligibility to assert claims of trademark violation. Frankly, I don’t think those will be of any substantial general interest so I’ve omitted them here.

Burt, Aren’t You Forgetting Something?

I know exactly what you’re talking about and no, I didn’t forget.

Remarkably missing from this list are the following cases: Bogan v. Baskin, Herbert v. Kitchen, McQuigg v. Bostic, Rainey v. Bostic, Schaefer v. Bostic, Smith v. Bishop, and Walker v. Wolf. These are the seven pending same-sex marriage cases, and three of them from Virginia. (Because Virginia is for lovers. Just not necessarily lovers of the same sex.)

To whatever extent the Court acts on these petitions, it is likely to act on all of them in concert, likely unifying the cases because they present substantial overlapping questions of law and fact: whether the Equal Protections and Due Process clauses of the Fourteenth Amendment prohibit state law definitions of marriage as between one man and one woman and whether they compel the recognition of out-of-state same-sex marriage licenses, and/or compel granting of marriage licenses to same-sex couples on the same basis they are offered to opposite-sex couples.

Recall that on the books, last year’s watershed case of United States v. Windsor dealt with the validity of a same-sex marriage license issued in Canada under Federal law. Recall also that the language in Windsor dealt both with the substantive due process rights of the couple to be married and the fact that the regulation of marriage was under Federalism principles an issue reserved to the various states. It’s been a happy year for same-sex marriage advocates with the striking down of part of DOMA, but the part that survived points to the issue.

These seven cases, through various angles, reach the very core of the same-sex marriage: whether a state may, consistent with the Constitution, disallow same-sex marriages while permitting opposite-sex marriages. And here, eight votes are pretty easily anticipated — and there are seemingly equally strong policy arguments pulling at Justice Kennedy, very likely the deciding vote. Advocates and opponents of SSM should all proceed with caution because this really could go either way.

No one seriously thinks that certiorari will be denied here. It’s inconceivable that the Court would simply let matters rest where they are. But it’s odd that it hasn’t been granted yet, either. And since certiorari has not been granted yet, officially none of these cases are on the docket and my prediction that all seven will be unified for a two- or three-day oral argument session could very well turn out not to be how it goes down. And it’s also well within the realm of imagination that the Court may decide to put these cases on hold, awaiting more appeals from other states and other circuits, to consolidate all of them.

But while the cases could be listed as early as next Tuesday, we might not see the cases formally listed until as late as January, according to one observer with a particularly keen eye on the Court.

Parting Thought

The docket seems like it lacks some sex appeal this year as compared to last, which is a bit disappointing. That’ll change once the same-sex marriage cases make it on the docket, of course, but they may very well dominate the political and press coverage of what the Court is doing. The Arizona redistricting case seems like it could have the farthest-reaching implications, although I suspect we would need to wait eight years, until after the 2022 elections, to really see the impact of a ruling affirming redistricting commissions. As for now, I’m watching Holt the closest: a prisoner’s beard in Arkansas is a bellwether for quite a lot more than the law of personal grooming.

Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.