The 2014 term of the United States Supreme Court kicks off on Monday, October 6th. While most Court watchers will be doing so with an eye towards cases making their way to the Court and/or the rumored alleged retirement of Justice Ginsburg at the end of this term, the October oral argument calendar has been set since June of this year. Before getting to those cases, it is best to look at what is NOT currently on the docket. It would appear likely, now that the LGBT crowd’s string of victories in courts has ended with a ruling out of Louisiana, that a circuit split has occurred and the Court will be forced to face the issue of gay marriage head on fairly soon. In addition to the Louisiana ruling, there are potential cases coming out of other states that may force the issue upon the Court. There are several possible abortion cases also that may come before the Court this term which would be an aberration for the Roberts Court since they have directly avoided the issue now for several terms. They have skirted the issue with the Massachusetts case last year, but that was not an abortion case per se, but more a free speech issue.
Secondly, as to the Ginsburg resignation, there are no signs from the most important actor here- Ruth Bader Ginsburg- that she intends to resign. In a midterm year with control of the Senate very much in the air, there is no guarantee that this will happen and certainly not before or during this term. Perhaps that is a possibility if the Democrats retain control of the Senate, although given the projected Democratic losses and weakening of their majority, there is the potential for a protracted fight. Harry Reid left Supreme Court Justices off the list in his partial “nuclear option” rewriting of the Senate rules. Regarding those rumors, most of this emanates from Leftist circles since they are seeing electoral defeat written on the walls. They want Obama to get a younger, more liberal replacement in there before he leaves office and Ginsburg is the best target. And there is no way any of the more conservative Justices are retiring with Obama in office. Plus, Kennedy relishes his role as the “swing vote” and he is not going anywhere any time soon.
As to the cases being argued in October, there will be ten with one being a dispute between states over water rights which falls under the Court’s original jurisdiction for resolution. The term kicks off with Public Employee’s Retirement Systems vs. IndyMac, a case with indirect securities fraud implications. More to the point, the case is about class action status and access to the courts. Recently, the Roberts Court has held a restrictive view of class action status in many instances much to the dismay of liberal lawyers. Arguing cases individually places the individual at a negotiation disadvantage which does not exist when there are class action suits. This case stems from mortgage backed securities- the instrument at the center of the 2008-09 financial meltdown.
Next up is Herein vs. North Carolina. In this case, North Carolina police stopped a car because a tail light was out although the law states that it is illegal to drive without tail lights- the key being plural. Further, no one has ever been charged with driving with a single tail light out. In essence, the police officer made an mistake in his understanding of the law in question and during that stop discovered cocaine. The question is whether an honest mistake by a police officer in their understanding of the law negates probable cause.
Dart Cherokee Basin vs. Owens is a technical procedural case involving access to federal court jurisdiction sure to glaze the eyes of many. However, later that morning they will the case of Holt vs. Hobbs. The issue involves a member of the Islamic faith in Arkansas prison and the length of his beard. Many will be watching this case- erroneously- to see if the Court affords the prisoner the same deference Christian groups were given in the Hobby Lobby case. These concerns would arise from their ignorance. First, the two laws at question here are totally different. Second, this case involves a state prisoner and the Court traditionally grants great deference to prisons in the interest of security. Third, the law in question mandates that reasonable accommodation be granted which it would appear is the case here.
In Warger vs. Shauers, the Court will be asked whether juror dishonesty during selection of jurors should a basis of review in appeals. In this case, a particular juror, who became the foreman, stated during a civil trial jury selection procedures that she had no prejudices but then confided during deliberations that a family member had been the victim of a transgression similar to the one in dispute in the trial.
Integrity Staffing Solutions vs. Busk asks the Court to determine whether time spent in security screenings before or after work should be compensated as overtime for employees. Just last term, the Court determined that uniform changing muster time is not compensated overtime and one suspects the same outcome here. North Carolina Board of Dental Examiners vs. FTC is an antitrust exemption case. The board in question here is composed of dentists as required under state law. State boards are generally exempt from antitrust laws although there can be exceptions.
Teva Pharmaceuticals vs. Sandoz is a complicated patent case that focuses more on procedure in the courts than anything else and it too is likely to glaze one’s eyes over. And finally, they will hear Jennings vs. Stephens, another technical procedural case regarding access to federal courts in habeas proceedings.
In late October, this writer will preview the November docket.