Diary

The 2012 Supreme Court Term Thus Far

The following is a listing of cases with a brief synopsis of each which the Supreme Court has taken for consideration in the 2012 term which begins on October 1st, 2012. After tomorrow’s health care case plus ones on the Stolen Valor Act, and a real estate case, they recess until a long conference at the end of September. In case anyone is wondering, it would be a huge surprise if any Justice announces a retirement at the end of the day. These are presented by the lower court from which the case originated. Usually, it is the Ninth Circuit that gives the most fodder for the Supreme Court, but thus far, they are tied with the Second Circuit which is where we begin.

In Already, LLC v. Nike, Inc., the Court must resolve a trademark dispute and has all the makings of watching paint dry in terms of interest. However, Clapper v. Amnesty International should be interesting. Here, the human rights group is contesting, along with other organizations and journalist groups, that FISA requirements of international wiretaps that may involve parties in the United States compromises their ability to conduct business as usual. Specifically, if a journalist has a “source” in Afghanistan, then they claim the interception of transmissions dries up those sources or forces the journalist to actually travel to Afghanistan to speak with that source. That is an example. Amnesty International claims that foreign whistle blowers regarding human rights violations are less apt to communicate with their group if they feel their conversations may be intercepted. Hence, they seek prospective relief. That is, they have not proven in a court that any of these hypotheticals have occurred, only that the FISA law makes it possible and has had a chilling effect.

In a case held over from the current term (Kiobel), the Court must decide whether foreign corporations have immunity from civil lawsuits under the Alien Torts Statute. This involves a Nigerian national in the US suing the oil company that assisted the Nigerian dictatorship in the forceful removal and, sometimes, murder of inhabitants in oil-rich areas. In the Kirtsaeng case, a college student here in the US asked his parents to purchase and send to him textbooks from Taiwan. These books are also used in American colleges, but are usually more expensive than those sold abroad. The petitioner then resold the books to students at a slight profit in order to pay his college expenses. Found in violation of copyright laws, he was ordered to pay a hefty fine and appeals that decision. And finally from the Second Circuit is Bailey v. United States where the Court must decide whether a suspect can be detained when they leave the scene of an area to be searched before that warrant can be executed.

Three cases come from the Third Circuit. Comcast v. Behrend involves class certification and involves approximately a $26 dispute. I suspect Sotomayor and the liberal wing wanted this case to rebut ATT v. Concepcion. In the Genesis HealthCare case, the Court is asked if a plaintiff has Article III standing if a claim is satisfied with respect to plaintiff’s in a class action. And the US Airways case will determine to what extent a court can rewrite a contract based upon “equitable principles” in direct conflict with the wording of the original contract.

In the Fifth Circuit, we have perhaps one of the biggest cases thus far of the next term. In Fisher v. University of Texas-Austin, the Court will confront affirmative action in college admissions head-on. Despite attempts to have the case ruled moot (Fisher has since received a degree from a school in Louisiana), they accepted the case. This will be a test of the resolve of the conservative wing of the Court, especially John Roberts, who have made their dislike of affirmative action well-known. In Henderson v. US, the Court will decide whether courts, when confronted with unsettled law at the time of trial but settled when an appeal is filed, should adopt the standard at the time of the trial or the time of the appeal in resolving the appeal. There is a serious split among the Circuits on which standard to use. And finally from the Fifth Circuit, the Moncrieffe case involves deportation and the definition of a felony. Specifically, state law mandates that a certain crime (possession of marijuana here) be classified a felony, while federal law does not. The petitioner here was convicted and the INS moved to deport the person based on their state felony conviction.

The Sixth Circuit gives us one case and it is one that has been kicking around for some time now. Specifically, it asks whether capital offenders have a right to competence and whether courts may grant indefinite stays of habeas petitions pending the determination of competence. The Sixth Amendment guarantees defendants the right to effective counsel. But how can counsel be effective if they are dealing with an incompetent client? This creates a legal Catch-22 that often binds the hands of courts and the states from carrying out executions.

In a somewhat related case out of the Seventh Circuit, the Court must decide whether when counsel advises a defendant to take a plea bargain, but fails to mention whether that admission of guilt may get the person deported rises to the level of “ineffective counsel,” and thus in violation of the Sixth Amendment. The other case from this Circuit addresses the supervisor liability rule with respect to culpability in workplace discrimination cases. Essentially, it seeks to clarify who exactly qualifies as a “supervisor” and subject to civil liability in these cases.

There is one, lone boring case from the Eighth Circuit (Kloeckner) which addresses court jurisdiction and Article III standing in workplace mixed cases. A mixed case is one in which the plaintiff claims workplace discrimination and wrongful termination.

Our favorite wacky Circuit- the Ninth- gives us five cases thus far. The Amgen case is a class certification case as regards misrepresentations on securities offerings while Johnson v. Williams is a hebeas case. The remaining three involve environmental law and two were consolidated. In the cases where the Northwest Environmental Defense Fund is the respondent (they won in the Ninth Circuit), the Court is asked to determine first if storm water runoff from logging roads falls under the purview of the Clean Water Act. Secondly, they are asked whether the Ninth Circuit must defer to the existing EPA standards regarding runoff which the 9th Circuit ignored in this case. The other environmental case involves the Los Angeles flood control system and whether that system qualifies as a navigable waterway and subject to EPA regulations.

The Tenth Circuit gives us one case about whether when a defendant prevails under the Fair Debt Collection Act they are entitled to attorney fees in the absence of a showing of bad faith and/or harrasment. It should be noted that the harrassed party here was the debt collector. From the 11th, there is an antitrust case where the state guaranteed non-competition among hospitals. Another case asks whether a floating structure indefinitely moored is subject to federal maritime jurisdiction. This may sound trivial, but think about houseboat “developments” and avoidance of local property taxes.

In what I think may be a good case from the Federal Circuit, the state of Arkansas is suing the federal government over a flood control project that rendered a state wildlife preserve area unusable. They are seeking just compensation under the Takings Clause. Another case (Bormes) asks whether the US waives sovereign immunity over privacy violations under credit reporting laws.

Two cases from the DC Circuit will interest only the lawyerly types out there. One involves the statute of limitations on appealing Medicare reimbursements while the other addresses the definition of “conspiracy” and whether if a person withdraws from the conspiracy, yet still gains from it, they can be charged with conspiracy. Yawn….

However, the three cases on direct appeal from state supreme courts- two from Florida and one from Michigan- are kind of interesting. In the Michigan case, a trial judge erroneously determined that the prosecution failed to prove an element of the crime of arson and directed a mid-trial acquittal. The Michigan Supreme Court determined that judge’s interpretation was in error and ordered a retrial. However, the defendant asserts that is barred vis-a-vis the Double Jeopardy Clause. And the two cases from Florida involve the Fourth Amendment. The first (Harris) asks whether a sniff by well-trained narcotics dogs of a vehicle justifies probable cause to search that vehicle. The Jardines case asks whether a similar sniff by a narcotics dog at the door of a suspected marijuana “grow house” satisfies probable cause for a search. Both involve the expectation of privacy in one’s “home and effects” from unreasonable search and seizure. Libertarians will be watching these cases carefully.

That is all they have scheduled for next term- 30 cases thus far. Generally, they will take anywhere from 60-70 cases, so there is still work to be done. Although they denied review recently, expect the Mt. Soledad case involving the Establishment Clause to be taken up as well as the DOMA appeal involving gay marriage. In fact, a very late addition to the docket next year may be the Proposition 8 gay marriage appeal working its way through the Ninth Circuit. Other important cases with wide-ranging effects are cases that challenge the FCC’s media ownership rules, whether police interviews introduced as evidence violates the Confrontation Clause, whether race-based tax exemptions are constitutional under the Equal Protection Clause and a case testing the extent of Miranda warnings. Also, a likely 4th Amendment case is whether the state can take DNA samples from people arrested, but not convicted, whether sex offenders have a substantive due process right to treatment, and whether Washington’s laws regarding third party access to ballots is constitutional, as well as several workplace discrimination cases in the pipeline.