Diary

December Supreme Court Docket

The December sitting of the Supreme Court session starts the Monday after Thanksgiving.  The cases scheduled for oral argument are potentially contentious as the Justices will confront several issues with the potential for some blockbuster rulings.  So in chronological order, here is a summary of the cases to be heard:

November 30th

Mussachio vs. United States: This case involves criminal procedure and the appeals process simultaneously.  With respect to the procedural aspects, the Justices must decide an issue of jury instructions where there were no objections at trial and the level of scrutiny required in those instructions.  The second part asks whether a statute of limitations defense that was not raised at or before trial can be accepted upon appellate review.

Green vs. Brennan:  Once again, the Supreme Court is asked to weigh in when a claim of job discrimination can be filed.  Specifically, does the clock start to run when the employee resigns or is terminated, or does the clock start to run when the last discriminatory act occurred?  If one remembers, the Court was asked a similar question in the Ledbetter case which, to the chagrine of the Left, led to outrageous criticism against the Court.  Of course, it took a simple legislative fix to repair the ambiguity in the then-existing law which may be the solution here ultimately.

December 1st

Menominee Tribe of Wisconsin vs. United States:  A case sure to glaze over the eyes of anyone, there is too much legalese to do the subject any justice.  Basically, it asks whether “extraordinary circumstances” existed to delay the statute of limitations on a particular law that applies to contract resolutions with Indian tribes.

Merrill Lynch vs. Manning:  This is a securities law case about jurisdiction between the federal and state governments.  Specifically, it asks whether the Securities Exchange Act of 1934 provides jurisdiction over state claims of violations of the Act, or whether states can also prosecute violations of the law.  Although it sounds complicated, the implications of dual prosecutions could be potentially costly to the securities industry.

December 2nd

Gobielle vs. Liberty Mutual Insurance:  An ERISA case that must determine whether the law preempts Vermont’s health care database law as applied to a third party administrator for a self-funded ERISA-covered plan.  Again….zzzzzzzzz…..

December 7th

Dollar General Corp. vs. Mississippi Band of Choctaw: Another case involving Indians, it asks whether Indian tribal courts have the authority to hear and decide civil tort cases involving nonmembers of a tribe even when nonmembers enter into consensual contractual relations with the tribe.  A member of a tribe worked for a Dollar General store located on Indian land and was allegedly sexually assaulted.  The tribal court awarded him $2.5 million in actual and punitive damages.  Dollar General argues that federal law allows for tribal court jurisdiction only when Indian self-government are involved and in the absence of Congressional action, tribal courts have no jurisdiction over these particular cases.

Franchise Tax Board of California vs. Hyatt:  This case asks whether when a corporation from one state is haled into court of a neighboring state whether the corporation must be extended the same immunity a domiciled corporation would receive in that state.  This involves a dispute between California and Nevada.

December 8th

Harris vs. Independent Redistricting Commission of Arizona:  If this sounds like deja vu, it is…sort of.  Redistricting is a major battlefield between the Left and Right.  The Left will tell you that gerrymandering needs to stop, but the Court has repeatedly stated that gerrymandering to gain partisan advantage is acceptable in most cases.  It is not if its intentions are to dilute the votes of anyone based on race or ethnicity.  Neither is really at issue here, but under the Voting Rights Act, Arizona is required to receive federal “preclearance” before enacting election law changes, including redistricting.  In this case, the “gerrymandering” was done to ensure federal preclearance.  However, the new districts created unequal populations in different districts by overpopulating certain ones.  The first asks whether in light of Shelby County vs. Holder this is still permissible and required.  Secondly, (and this leads to the next case), it asks whether these efforts deny Equal Protection and violate the doctrine of one man-one vote.  This is an important case that will be closely watched.

Evenwel vs. Abbott:  With the potential to be a blockbuster case that can seriously alter the partisan balance of power at all levels of government, a paragraph does it no justice.  Last week, this writer published a three-part series on this case illustrating the implications.  And although I give the petitioners a less than 50% chance of prevailing, the fact that four Justices voted to grant review, it is important.  Briefly then to recap, Evenwel and others live in a rural county in Texas.  In order to capture the requisite population to satisfy one man-one vote, they were drawn into a more urban county with nothing in common with their rural county.  Further, urban counties tend to have lower voter registration and turnout rates, but their numbers still overpower the more apt-to-vote rural/suburban residents.  Further still, urban centers tend to magnets for persons ineligible to vote and in Texas that means illegal immigrants.  Regardless, the United States Census counts persons regardless of their legal status which adds “persons” to certain geographic areas.  Essentially, the Court is tasked with defining “man” in the one man-one vote doctrine for redistricting purposes.  Historically, the census has counted persons regardless of their voting eligibility (except slaves when they were under the 3/5 rule, and “Indians not taxed”).  However, the Census Bureau and other government agencies have the means to determine the Voting Eligible Population (VEP) on a state-by-state basis.  By using VEP rather than overall population to determine “man” for redistricting purposes, the political power of urban centers in many states could be weakened as those urban districts would have to be stretched into more conservative suburban and rural areas.  Using overall population has the opposite effect.  This writer will have more on this case next week.

December 9th

Fisher vs. University of Texas at Austin:  This is the third visit before the Court with this case.  The last time, in classic John Roberts fashion, the issue of racial preferences in the college’s admission process was punted back to the lower courts who upheld those preferences under the Court’s new Equal Protection analysis guidelines.  Fisher (who has since gone on to receive a degree from LSU) insists the lower courts are still misinterpreting the guidelines.  In its previous visit, there was much discussion of “critical mass” and when and if an affirmative action program achieved its goals.  Obviously, the lower courts determined that critical mass had not been reached.  This writer would like nothing more than to see the Court strike down college admission affirmative action programs.  What one must remember is that for every undeserving beneficiary, there is one more deserving white, Hispanic, or Asian, or female applicant.  There are many precedents to overcome and a lot of heated language so I do not have much hope for this eventuality.  But then again, if John Roberts can contort the Constitution to uphold Obamacare, anything is possible.