=========
=========
Promoted from the diaries by streiff. Promotion does not imply endorsement.
=========
=========

The March Supreme Court oral argument calendar starts on March 18.  The following is a summary of cases to be heard:

March 18th Virginia House of Delegates vs. Bethune-Hill

This is the first of three redistricting cases the Court will hear this month.  This is a complicated case under the Voting Rights Act and the power of district courts to intervene in the redistricting process.  At issue is the district lines of eleven majority-minority state house districts.  This is a continuation of a prior case.

March 18th Smith vs. Berryhill

A case involving statutory interpretation and the definition of the term “final decision” and when someone denied disability benefits can file suit in federal court.

March 19th Cochise Consultancy, Inc. vs. United States, Ex. Rel. Hunt

Another statutory interpretation case under the False Claims Act on the definition of “an official of the United States” and whether the statute of limitations for filing a false claim is in effect if the US government declines to intervene.

March 25th PDR Network, LLC vs. Carlton and Harris Chiropractic

A weird case involving faxes.  PDR sent the chiropractors an offer of a free copy of a Physicians Desk Reference.  The chiropractors claim the offer was unsolicited and thus violated the Telephone Consumer Protection Act.  PDR claimed that the offer could not be considered “unsolicited” since they asked for no money.  The district court agreed with PDR, but the Fourth Circuit overturned that decision ruling that the FCC had issued a rule that faxes were to be included under the law.  The question is whether under the Hobbs Act the district court should have considered the FCC rule.

March 25th The Dutra Group vs. Batherton

This case will decide whether an injured party under the Jones Act which addresses seamen in personal injury suits can sue for punitive damages.

March 26th Ruchco vs. Common Cause

This is the second of third redistricting cases this month and involves the issue of political gerrymandering.  This case comes out of North Carolina where in 2011 the Republican-led legislature had their map ruled invalid because of two federal Congressional districts the courts said were racially gerrymandered.  After redrawing the map, another district court invalidated that map claiming there was a politically partisan gerrymander.  The Court did not provide much guidance previously in a case out of Wisconsin regarding partisan gerrymandering.  The plaintiffs in this case are arguing that Common Cause does not even have standing to bring a suit since they suffer no injury.

March 26th Lamone vs. Benisek

This is the final gerrymandering case to be heard this month.  This case also involves partisan gerrymandering out of Maryland.  The Court previously sidestepped the Maryland case and referred it back to the district courts for further consideration in light of the previously discussed case out of Wisconsin.  To be fair, both Roberts and Alito have been very wary of wading into these discussions much preferring that it be resolved through the legislative process.

Regarding the issue of political gerrymandering, it has obviously been a feature of the redistricting process almost since the first US census.  Generally, the party that controls the legislature has the advantage.  The Democrats have only recently cried foul because they have lost so many state legislatures.  For example, you do not hear Republicans crying about district boundaries in Massachusetts.  They start from a point of view that believes that because statewide the vote may favor Democrats with, for example, 55% of the total vote that therefore individual districts should reflect that 55%.  However, as reality dictates, Republicans and Democrats (or liberals and conservatives) tend to sort themselves with Democrats concentrated in large urban counties and Republicans elsewhere.  Considering that they are dealing with finite geographical regions (state boundaries), drawing Democratic voters into Republican areas would (1) dilute and essentially disenfranchise Republicans and (2) make for some pretty silly looking districts.

In this writer’s opinion what the Supreme Court should do is just stay out of the issue altogether.  John Roberts believes that if the Court starts to decide these cases one way or the other, they are engaging in partisan politics and it will delegitimize the Court.  Although not really a good reason (sounds like high and simple-minded avoidance to me), they should just stay out of politics which is what all these cases about partisan gerrymandering boil down to.  With many states moving away from legislatures redistricting boundaries every ten years, the political aspect is growing less and less anyway.  And although we all know that there is no such thing as a non-partisan redistricting commission since it is politicians making the appointments, eliminating legislatures from the process weakens the claims of political gerrymandering.  As Andrew Jackson once said, “To the victor belongs the spoils.”  Democrats and their special interest group cadre cannot win at the state level, so they resort to the courts to achieve what they cannot through the voting booth.

March 27th Kisor vs. Wilkie

This is a case that will decide whether courts should defer to an agency’s own interpretation of an ambiguous rule or regulation.  This may sound rather boring and mundane, but consider the consequences.  The Court is being asked to overrule two long-standing doctrines dating back to the 1940’s.  This decision could have profound implications for the administrative state.  Justice Thomas has expressed interest in reconsidering these precedents and Roberts and Alito have likewise questioned their applicability in an increasingly complex administrative state.  The ultimate target, should conservatives prevail here, would be the so-called Chevron deference doctrine.  Here, Gorsuch has made no secret of his animosity.  In cases in the DC Circuit, Kavanaugh called Chevron “an atextual invention of the courts.”  In short, this case has the implication of starting down the road of weakening the powers of agencies to issue and then interpret their own rules.  While gerrymandering cases may get more publicity, this writer believes this is the case to watch this month.