In its conference of October 28, 2016, the court will consider petitions involving issues such as whether a state court can evade the pre-emptive force of the Federal Arbitration Act by framing its refusal to enforce an arbitration agreement as a product of supposed defects in “contract formation” that would not prevent the formation of any other contract; whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor,” and therefore establishes grounds for mandatory removal; and whether the court should retain the Auer v. Robbins doctrine of judicial deference to an agency’s interpretation of its own regulations.


Packingham v. North Carolina
15-1194
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

TAMKO Building Products, Inc. v. Hobbs
15-1318
Issue: Whether a state court can evade the preemptive force of the Federal Arbitration Act by framing its refusal to enforce an arbitration agreement as a product of supposed defects in “contract formation” that would not prevent the formation of any other contract.

Gilliam v. Nebraska
15-1384
Issue: Whether an individual inside a parked vehicle is seized within the meaning of the Fourth Amendment to the Constitution when a police officer activates a cruiser’s emergency lights while positioned directly behind the parked vehicle, approaches the vehicle, knocks on the window of the vehicle, and directs the occupant to roll down the window.

Purcell v. Arizona
15-8842
Issue: (1) Whether a sentencing judge’s exercise of discretion not to impose a death sentence is the functional equivalent of the findings required under Montgomery v. Louisiana to impose a sentence of life without parole on a juvenile offender; and (2) if not, whether the court should vacate the decision of the Arizona Court of Appeals and remand for further consideration in light of Montgomery.

Dean v. United States
15-9260
Issues: (1) Whether a defendant can be convicted of a Hobbs Act robbery pursuant to 18 U.S.C. § 1951 when the evidence submitted to the jury disclosed that the victim was not involved in drug distribution affecting commerce during the time of the robbery and that there was no intent to rob a “drug dealer”; and (2) whether the Supreme Court’s decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Kindred Nursing Centers Limited Partnership v. Clark
16-32
Issue: Whether the Federal Arbitration Act pre-empts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement.

Esquivel-Quintana v. Lynch
16-54
Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

Gloucester County School Board v. G.G.
16-273
Issue: (1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled; (2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (3) whether, with or without deference to the agency, the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Sireci v. Florida
16-5247
Issue: Whether a state court violates a petitioner’s federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

Posted in Cases in the Pipeline

Recommended Citation: Kate Howard, Petitions to watch | Conference of October 28, SCOTUSblog (Oct. 26, 2016, 10:16 AM), http://www.scotusblog.com/2016/10/petitions-to-watch-conference-of-october-28/