Update at 4:36 p.m., January 13: This post has been expanded to include summaries of all the cases the court agreed today to review.
Last week the justices held their first private conference of 2017. They did not grant any cases from that conference, but they made up for last week’s dearth of cases, and then some, after today’s conference, by granting review in 16 new cases, for a total of 13 additional hours of argument. In doing so, the court also took a big step toward filling out its merits docket for this term.
Today’s grants included several closely watched business cases. In Sandoz v. Amgen and Amgen v. Sandoz, the justices will consider the process for resolving patent disputes relating to the federal Food and Drug Administration’s licensing of “biologics” – products such as vaccines, viruses and antitoxins. The court had asked the federal government to weigh in last summer; the U.S. solicitor general recommended that both petitions be granted.
The justices will also return to a familiar question: To what extent can agreements to arbitrate disputes foreclose later efforts to resolve those disputes through litigation? In National Labor Relations Board v. Murphy Oil USA, Ernst & Young LLP v. Morris, and Epic Systems v. Lewis, the justices agreed to decide whether agreements to forgo class actions or collective proceedings and instead resolve employer-employee disputes through individual arbitration are enforceable under the Federal Arbitration Act. The federal government argues that they are not, because the National Labor Relations Act protects employees’ ability to engage in protected concerted activities – that is, action by two or more workers for their mutual aid or protection regarding terms or conditions of employment. The justices granted all three petitions and consolidated the cases for one hour of oral argument.
Another high-profile business case granted today is National Association of Manufacturers v. Department of Defense, which arises out challenges to a June 2015 rule, promulgated by the Environmental Protection Agency, that defines the term “waters of the United States” for purposes of the Clean Water Act. The question now before the court is whether such challenges should be first filed in federal district courts or instead in federal courts of appeals. In its brief seeking Supreme Court review, NAM told the justices that this dispute over jurisdiction has “divided the circuits, wasted judicial and party resources, and delayed the resolution of important rule challenges.” The underlying battle over the 2015 rule itself is also hotly pitched: The Obama administration, backed by environmental groups, insists that the rule is necessary to protect waterways and wetlands, but states, industries and municipalities regard the rule as a massive overreach by the federal government.
And in California Public Employees Retirement System v. ANZ Securities, the justices will consider yet another issue of interest to the business community: the timeliness of individual securities fraud actions that are related to securities fraud class actions.
The justices did not act today on Abbott v. Veasey, a challenge to Texas law that requires voters to present specific forms of government-issued photo IDs to cast a ballot. The plaintiffs, including the federal government, argue that the law violated Section 2 of the Voting Rights Act, which bars voting practices or procedures that discriminate based on race. The lower courts agreed, and the state has asked the Supreme Court to take up the case. The justices had relisted the case after first considering it at their January 6 conference; more news about the case could come as early as next Tuesday, January 17, when the court is expected to issue additional orders from today’s conference.
Here are brief summaries of the issues presented in the other cases granted today:
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Henson and to the petitioner in CALPERS. However, I am not affiliated with the firm.]