As the beginning of the October 2016 Term approaches, court-watchers are engaged in previewing some of the cases on the Supreme Court’s docket. At Bloomberg Law, Kevin McGowan reports that although there is “just one labor-related item among the 31 cases granted review” so far by the Supreme Court for the new term, several pending requests for review raise important employment law issues. In the Constitutional Law Prof Blog, Ruthann Robson previews the “handful” of constitutional law cases on the Supreme Court’s docket for the upcoming term. Scott Graham reports for Law.com (subscription required) that with “four IP cases on the docket and several more knocking at the door of certiorari, the U.S. Supreme Court is poised for a banner year of patent, trademark and copyright decisions.” Chicago Tonight offers a discussion by former Supreme Court law clerks of the cases on the docket, notable petitions for review, and the effect on the court of Justice Antonin Scalia’s absence.
The petition of the day is:
Issue: (1) Whether, under section 35 of the Lanham Act, willful infringement is a prerequisite for an award of infringer’s profits for a violation of section 43(a), which prohibits trademark infringement through false representations regarding the origin, endorsement, or association of goods through the use of another’s distinctive mark; and (2) whether and to what extent the defense of laches may bar an award for patent infringement brought within the Patent Act’s six-year statutory limitations period, 35 U.S.C. Section 286—the same issue the court granted for plenary review in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC.
The justices of the Supreme Court normally return to the bench to hear the first oral arguments of the new term on the first Monday in October. But this year “First Monday” coincides with Rosh Hashanah, so oral arguments in the October Term 2016 won’t actually begin until Tuesday. In the second case that day, the justices will consider the plight of Lawrence Shaw, a California man who admits that he drained, without permission, another man’s sizeable checking account. His defense? He may have taken the money, but that doesn’t justify his federal conviction for bank fraud, because he didn’t mean to defraud the bank – which didn’t actually lose any money.
On September 29 at 5:30 p.m., the National Press Club will host a discussion between Michael Kramer and James Zirin, author of Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court.” More information about this event is on the National Press Club website.
- In The New Yorker, Jeffrey Toobin surveys the effect of Justice Antonin Scalia’s death on the cases decided at the end of last term and the implications for the court of a Trump or Clinton victory in November, concluding that the “hopes for a liberal Court will begin—or, just as certainly, end—with the results on Election Day.”
- In the National Law Journal, Anthony Franze and Reeves Anderson examine the influence of amicus briefs on last term’s Supreme Court cases, noting that “amici filed more than 860 briefs, participated in more than 90 percent of merits cases, and, more often than not, seemed to capture the justices’ attention.”
- At Empirical SCOTUS, Adam Feldman surveys the attorneys who have argued the largest number of close Supreme Court cases over the past six years and looks for patterns in the way the justices align with repeat attorneys, observing that “although there is some pattern in the voting alignments between attorneys and Justices, some predictable patterns did not play out as might be expected.”
- In the Harvard Business Review, Avinash Dixit and David McAdams apply game theory to the Merrick Garland nomination stalemate, identifying several “strategic obstacles” that make it likely make it likely “that Garland will not be confirmed as a Supreme Court justice during the Obama presidency, despite his qualifications as an accomplished jurist and consensus nominee.”
The petition of the day is:
Issue: Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.
On October 3 at 4 p.m., the Antonin Scalia Law School at George Mason University’s Supreme Court Clinic and Federalist Society chapter will co-host a Supreme Court Preview. Speakers will include John Elwood, Pratik Shah, and Jeffrey Wall; Ross Davies will server as moderator. More information about this event, which will be held at George Mason’s Hazel Hall Atrium, is available here.
For CBS, Reena Flores and Major Garrett report that Donald Trump added ten names last Friday to his list of potential Supreme Court nominees, including Senator Mike Lee of Utah; they note that “specificity about potential Trump jurists” is “designed to solidify the conservative court-watchers, especially on social issues and executive power.” Matt Ford at The Atlantic observes that “if Lee’s inclusion was intended as an olive branch for Ted Cruz, it seemed to work: On Friday afternoon, Cruz finally endorsed Donald Trump, citing it as one of six reasons for his decision.” Coverage of Trump’s new list of possible court picks also comes from Steve Holland at Reuters and Greg Stohr at Bloomberg, while commentary comes from Chris Cillizza at The Washington Post. Cristian Farias at The Huffington Post reports that, through a spokesman, Senator Lee “brushed off his inclusion in Trump’s list and said he ‘already has the job he wants.’”
In The New Yorker, Lincoln Caplan argues that the Supreme Court should agree to review an appeal of a Wisconsin Supreme Court ruling halting an investigation into Governor Scott Walker’s 2012 recall campaign, maintaining that if “the Supreme Court does not review this case and begin to repair the rule of law in Wisconsin, it will endorse the rule of politics that has done so much damage to the state—and is doing so much damage to the country.” Additional commentary on the case comes from Dan Weiner and Brent Ferguson at U.S. News and World Report.
On Monday, the justices met for their September 26 conference. They issued orders from this conference on Thursday. The court granted certiorari in nine cases, consolidating two. The October sitting will begin on October 3; the argument calendar for that sitting is available on the court’s website.
The petition of the day is:
Issue: (1) Whether, if federal law controls the issue of whether attorney’s fees and expenses can be awarded for obtaining a declaratory judgment, an award of fees and expenses is “necessary or proper relief . . . against [the losing party],” Declaratory Judgment Act Section 2202, or whether a declaratory judgment is only available to corporations and the upper class, who can afford to pay the hourly fees and expenses required for access to the courthouse; and (2) whether, if state law controls the issue of whether attorney’s fees and expenses can be awarded for obtaining a declaratory judgment, the case should be remanded to the district court to consider Kansas state law on the subject because the district judge affirmatively stated that fees and expenses should be awarded if they legally could be.