This article is less about specific cases and more about general trends in the cases the Supreme Court has thus far granted for review this term which started yesterday. I divided the cases into 14 broad categories. There may be overlap between cases (for example, Snyder vs. Phelps was both a civil torts and First Amendment case), but it’s category was determined by the final opinion and rationale where it belonged. This term, the Court has accepted 40 cases- about 60% of its normal case load. The following chart, shows by percentage of cases, the types taken in each term since 2010 and the overall figures:
|Types of cases||2010||2011||2012||2013||2014||2015||TOTAL|
Arbitration/class action cases: The Court has increasingly been wading into this area with frequency and their decisions often lead to accusations from the Left that the Court is pro-business and anti-consumer. This term, the Court is taking its highest percentage of such cases since 2012 and above its historical average. The general trend has been to favor arbitration over civil lawsuits and where lawsuits are permitted, they have reigned in class actions. This makes it more difficult for individual plaintiffs to carry through on lawsuits. In the case of arbitration, the Court clearly falls in its favor especially if it (1) is specific to an agreement for dispute resolution and (2) when the Federal Arbitration Act is supreme over state consumer protection laws in this area.
Bankruptcy cases: These cases this term are about average. Bankruptcy cases are more common after Congress passes new laws in this area, or as the bankruptcy code is used in response to financial crisis. They may have hit their peak last term as the chart illustrates.
Civil Torts and procedures: This sometimes overlaps with other categories, especially the jurisdictional/standing category. What is interesting this term is that they have yet to accept any cases in this category, although they have had the opportunity and there is still hope as there are some petitions still pending.
Copyright, patent and trademark cases: In 2013, the Court reached a high water mark for cases in this area, probably because of changes in the laws and because of international trade agreements that addressed this area. Obviously, intellectual property is the biggest area of litigation and the Court, at times, seems obtuse when it comes to this area. One would think that since this is a hot area in the law, the Court would see or accept more cases, but they have yet to accept one this term. That will change.
Criminal Justice: This includes defendant rights, police procedures and the like. Thus far, the 2015 term is behind the historical pace of petitions granted, but this area still accounts for one of the biggest areas of Supreme Court jurisprudence.
Eighth Amendment litigation: This includes not only the death penalty cases, but also sentencing guidelines and the like. This term could be a watershed year in this category given the number of cases accepted thus far. And it looks as if it will be in the future. Congress is considering a bipartisan criminal justice reform package that addresses sentencing guidelines and other factors and this should provide, if passed, plenty of fodder for future litigation. Of particular interest is the death penalty. One would think that after over 200 years, this would be settled, but the anti-capital punishment lobby is clearly original in their arguments and tactics. As Justice Scalia recently noted in a speech, the death penalty may yet become a thing of the past.
ERISA/Securities Law: This is another area where there is a direct correlation between recently enacted laws (Sarbanes-Oxley, Frank-Dodd) and/or financial turn downs. There are a few cases pending for review that may push the percentage higher this term. Although these are perhaps the most technical and boring cases to the casual observer of the Court, their impact is enormous given the businesses affected and the associated costs, and the number of people who have pensions.
First Amendment cases: In this category, I included free speech and religious freedom cases along with campaign finance cases since they often involve the First Amendment. So here you would see cases like Snyder vs. Phelps and Hobby Lobby. This year is the lowest percentage of such cases taken since 2011. However, the Obamacare contraception mandate cases are slowly working their way here. In this category, it is generally not the quantity of cases, but the quality of cases decided. For example, look at the impact of Citizens United which would have defined a Court term even if it was the only First Amendment case decided that year.
Immigration cases: These cases often overlap with criminal justice cases, but if they involve a deportation aspect, I included them here. Thus far, the Court has no such cases this year, but they are usually good for one or two per term so stay tuned.
Jurisdictional/standing cases: This involves not only questions of which court has jurisdiction over a matter, but also whether any case has Article III standing. I have also included federal agency actions and actions under the Administrative Procedures Act. Thus, cases involving the power of federal regulatory agencies like the EPA and NLRB are found in this category. As one can tell from the chart, these cases rank either first or second in percentage of cases every term and 2015 is no different.
Labor law/worker rights: Years after passage of the FLSA, certain provisions are still providing issues of controversy and litigation. This writer believes that the FLSA is in serious need of reform and updating to reflect the workplace realities of 2015, not 1945.
Original jurisdiction: These cases are Court cases where, under Article III, they are required to solve disputes between individual states. They usually involve water rights over rivers separating states and watersheds. Usually given to a task master, the Court usually rubber stamps their findings.
Political process: This category involves Separation of Powers questions, but also redistricting, and the Voting Rights Act, among other factors. This year could produce a blockbuster in Evenwell vs. Abbott, the redistricting case out of Texas involving one man-one vote. Should the Court rule in favor of the petitioners here, it has the potential to create a titanic shift in partisan politics. Although I currently give the petitioners a less than 50% chance of prevailing, the mere fact they took this case indicates there are members who want this controversy settled.
Tax law cases: The Court is about on average this term in this area. In 2011, the Court reached the high-water mark only because the Obamacare cases mysteriously were transformed from Commerce Clause cases into tax law cases by Roberts.
According to Scotusblog, there are several cases of interest. In their October 9th conference, the two most important cases to watch are Army Corps of Engineers vs. Hawkes Co. which calls into question “navigable waters of the United States,” and Rubin vs. Padilla which questions the constitutionality of California’s top-two general election system in that it excludes other candidates from access to the ballot at the maximum time for message conveyance. After that, watch for Supreme Court action or inaction on these important cases yet to be scheduled for conference consideration:
CCP vs. Harris: whether state can demand that tax exempt organizations turn over their donor lists. I have written previous articles about this and its importance and the Ninth Circuit’s faulty logic;
Davis vs. United States: whether the warrantless seizure and search of historical cell phone records violates Constitutional protections. Would seem like an open-and-shut case but for the national security/NSA implications;
Little Sisters of the Poor vs. Burwell: whether Obamacare’s contraception mandate applies to religious organizations and what accommodations are acceptable. This is a tough one as there is generally minimal circuit disagreement, but simply accepting it would be a victory for religious freedom rights;
Currier vs. Jackson Women’s Health Organization: which attacks Mississippi’s abortion law requiring hospital admitting privileges by abortion providers and whether other aspects of the law produce an undue burden on access to abortions. The Roberts Court has been very reluctant to wade into abortion legislation of late, but this case may be different and can be used as a guideline for other cases making their way to the Court. If taken, this has the potential to be an important flash point either way in a presidential election year.