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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link.

The Supreme Court hears its first oral argument of the October 2018 term on the first Monday in October — October 1, 2018. Before then, on September 24, the justices will sit down to what is known as the “long conference,” where they will review petitions for certiorari for the first time since June. The number of petitions the justices review during this conference typically exceeds 1,000. With approximately 1,321 active cases and over 1,200 petitions for certiorari, this year’s number is once again well over 1,000. This post uses data from CertPool.com as a starting point to examine aspects of the petitions the justices will review in September and then focuses on 40 petitions that have a higher than normal likelihood of success. (Click this link for Empirical SCOTUS’ look at long-conference petitions from last term.)

The process of examining data related to any Supreme Court conference before the conference actually takes place is dynamic. Moving pieces are constantly shifting, mostly in the form of actors, arguments and case filings. Because the CertPool data looks at the Supreme Court dockets, the information included depends on when CertPool pulled the data. This post should therefore not be viewed as a complete analysis of what will be reviewed during the long conference, but rather as a snapshot of some of the key cases and players. This information is meant to give a sense of what the justices and clerks will review and which cases seem particularly salient at the cert stage.

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William Seidleck is a law clerk at the U.S. Court of Federal Claims. JP Schnapper-Casteras is the founder of Schnapper-Casteras PLLC.

Filings by “friends of the court,” known as “amicus briefs,” are more important and sophisticated than ever. They come in many forms and lengths — but contemporary practice suggests that there are 10 (or so) common themes and clear strategies that can have a real impact.

Recent years have seen between 600 and 1,000 amicus briefs per term, which is an upward of 800 percent increase from the 1950s (notwithstanding the latest ups and downs of the Supreme Court’s docket). The groundswell of amicus briefs flows from several sources: In terms of format, amicus briefs are uniquely flexible, because they can address legal issues beyond the specific “question presented” and can explore facts beyond the record developed below. In terms of strategy, sometimes the parties to a given case will encourage others to file briefs to amplify or augment the parties’ core position. Other times, outside entities will independently want to file an amicus brief to advance their own legal or organizational interests and, in practice, there is little the parties can do to control, let alone stop, them.

The surge of amicus briefs also presents a conundrum: As the number of briefs increases in a particular case, the ability to “stand out” — and get closely read and utilized by the clerks or justices — can decrease.

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Tuesday round-up

By on Aug 21, 2018 at 7:05 am

Recent coverage of the nomination of Judge Brett Kavanaugh to the Supreme Court focuses on newly released documents from Kavanaugh’s tenure in the office of independent counsel Kenneth Starr. For The Washington Post, Michael Kranish reports that “[a] 1998 memo written by Brett Kavanaugh proposed a series of tough, sexually explicit questions for President Bill Clinton to answer about his affair with Monica Lewinsky, shedding new light on the Supreme Court nominee’s moralistic outlook and his view of presidential power.” Additional coverage comes from Adam Liptak for The New York Times and Joan Biskupic at CNN.

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The Supreme Court released the argument calendar for its November sitting, which begins on Monday, October 29. During the six days of the November sitting, the justices will hear oral arguments in 12 cases, involving topics that range from the proper method of service for a foreign country to pre-emption by the Atomic Energy Act.

The November sitting kicks off with two oral arguments involving the interpretation of the Federal Arbitration Act. Henry Schein, Inc. v. Archer & White Sales asks the justices to decide whether the act allows a court to decline to enforce an arbitration agreement that gives the arbitrator the power to decide questions about arbitrability if the court believes that the arbitrability claim is “wholly groundless.” And in the second argument of the day, in Lamps Plus v. Varela, the court will consider whether the act bars a state-law interpretation of an arbitration agreement that would allow class arbitration, even when the agreement itself does not mention class arbitration.

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We’re launching a new series aimed at helping law students survive the best/worst three years of their lives. In this episode, we’ll talk about study groups, thinking like your professor and the best food-related way to make it through an exam.

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Monday round-up

By on Aug 20, 2018 at 6:56 am

For The National Law Journal (subscription or registration required), Tony Mauro identifies “several factors that could make it difficult for Brett Kavanaugh—if he is confirmed by the Senate—to hit the ground running” when the new Supreme Court term begins on October 1. For USA Today, Richard Wolf explains that that “[b]ecause he would replace retired justice Anthony Kennedy, who occasionally sided with the court’s liberal wing, Kavanaugh particularly could shift the balance on cases involving abortion, capital punishment, racial discrimination and gay rights.”

In an op-ed for the Washington Examiner, Becket Adams observes that “Americans increasingly want the Senate to confirm Brett Kavanaugh to the U.S. Supreme Court, according to a new Quinnipiac poll.” In an op-ed at Fox News, Carrie Severino remarks that Democratic senators up for re-election in red states are “in a tight spot” when deciding how to vote on the Kavanaugh nomination because “[t]heir constituents strongly favor the judge’s confirmation and recognize that critical issues are at stake with the appointment of the next justice to the Supreme Court.”

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Petitions of the week

By on Aug 17, 2018 at 11:26 am

This week we highlight cert petitions pending before the Supreme Court that address the scope of Title VII’s prohibition on discrimination “because of … sex” with regard to transgender individuals, the attachment of the Sixth Amendment right to counsel in the context of plea negotiations, and the constitutional consequences of waiving a state-law right to have a jury make an advisory sentencing recommendation in a capital case.

The petitions of the week are:

18-106

Issues: (1) Whether the Sixth Amendment right to counsel attaches when the prosecutor conducts plea negotiations before the filing of a formal charge; and (2) whether the Sixth Amendment right to counsel attaches when a federal prosecutor conducts plea negotiations before the filing of a formal charge in federal court when the defendant has already been charged with the same offense in state court.

18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

18-113

Issue: Whether waiving a state-law right to have a jury make an advisory sentencing recommendation constitutes a knowing and intelligent waiver of the federal constitutional right to have a jury make all requisite findings for the imposition of death, particularly when the latter right did not exist at the time of the waiver.

Friday round-up

By on Aug 17, 2018 at 7:11 am

At CNN, Lauren Fox and others report that “Senate Democrats are threatening to sue for documents related to Supreme Court nominee Brett Kavanaugh’s record, the latest escalation in a partisan battle over the court.” Burgess Everett reports at Politico that “[t]he potential lawsuit would come right as Kavanaugh’s confirmation hearings begin in early September.” Additional coverage comes from Kevin Daley at The Daily Caller, who calls the threat “one of the few procedural weapons Democrats can use to slow progress on a Supreme Court confirmation some see as inevitable.” At The Hill, Jordain Carney reports that “[t]he National Archives is distancing itself from President George W. Bush’s legal team as both groups work to hand over hundreds of thousands of documents tied to … Kavanaugh.” In an op-ed for The Washington Times, Matt Mackowiack maintains that “[t]he record will show that Sen. Chuck Grassley, Iowa Republican and Senate Judiciary Committee chairman, is leading the most transparent confirmation process of all time.”

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Judge Kavanaugh on work law

By on Aug 16, 2018 at 12:06 pm

Charlotte Garden is an associate professor at Seattle University School of Law.

This post analyzes Judge Brett Kavanaugh’s most significant work-law opinions. Although several are already receiving attention and analysis – especially his dissent in a case that arose after a killer whale killed a trainer – Kavanaugh has drafted dozens of other opinions in labor and employment-discrimination cases. Overall, these opinions reflect that Kavanaugh tends to interpret narrowly the limits that work law places on employers, resulting in judicial and agency deference to employers’ decisions. For example, Kavanaugh has interpreted statutes or controlling Supreme Court cases in ways that exclude certain workers from coverage or bar certain types of claims. When he writes in cases in which he parts ways with his colleagues, it is often because he has a more employer-friendly view of the law than they do.

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Thursday round-up

By on Aug 16, 2018 at 7:00 am

For USA Today, Richard Wolf reports that “[f]or three eventful years of George W. Bush’s presidency – involving wars in Iraq and Afghanistan, Hurricane Katrina, battles over abortion and immigration, and two Supreme Court vacancies – Brett Kavanaugh held one of the most important jobs in the White House,” but “as the Senate considers Kavanaugh’s qualifications for the Supreme Court, his work as staff secretary – described by others who have held the job as the president’s inbox and outbox – remains a black hole.” For The Washington Post, Seung Min Kim reports that “[h]ow the Republican majority is handling Kavanaugh’s extensive records has infuriated Democrats,” noting that “what makes the fight for Kavanaugh’s records unusual is that the National Archives, which has played a central role for previous nominees in vetting their White House papers and sending them to the Senate, has effectively been sidelined.” In commentary at National Review, Ed Whelan explains why, “[o]n any sensible application of the cost-benefit analysis that always properly shapes the Senate’s demand for documents, demanding the staff secretary documents would be insane.” Thomas Jipping maintains in an op-ed at the Washington Examiner that “senators already have what [Senate Minority Leader Chuck] Schumer said they need, a complete record of the most relevant and revelatory material from Kavanaugh’s legal career.”

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