At its April 19, 2013 Conference, the Court will consider petitions seeking review of issues such as Section 1983 claims by Medicaid beneficiaries, possible preemption of state immigration law, the constitutionality of disallowing judicial salary increases, and term-of-year sentencing for juveniles.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether 42 U.S.C. § 1396a(a)(10)(A)(i), which provides that state Medicaid plans, to remain eligible for full federal reimbursement, must “provide . . . for making medical assistance available . . . to all [eligible] individuals,” creates federal “rights” that may be privately enforced under 42 U.S.C. § 1983 by Medicaid beneficiaries




Issue(s): Whether Section 2 of the Federal Arbitration Act, 9 U.S.C. § 2, preempts a state rule of law treating arbitration agreements signed by decedents differently than other contracts signed by decedents.



Issue(s): Whether 8 U.S.C. §1324, which prohibits concealing or harboring unlawfully present aliens, encouraging or inducing them to come into or reside in the United States, or transporting them in furtherance of their unlawful presence, impliedly and facially preempts state laws, such as ALA. CODE §31-13-13, prohibiting a state’s residents from: (a) concealing or harboring aliens who are present in the United States in violation of federal law; (b) encouraging or inducing aliens to enter into or reside in the state, when their entry or residence would violate federal law; or (c) transporting unlawfully present aliens within the state in furtherance of their unlawful presence.



Issue(s): (1) Whether resort to the McDonnell Douglas Corp. v. Green burden-shifting framework is warranted when the defendant has articulated a legitimate, nondiscriminatory reason for the challenged action; and (2) whether the Ninth Circuit misapplied this Court’s settled precedent governing retaliation claims when it concluded that the plaintiff’s speculation about the reason for her academic difficulties constituted sufficient proof of retaliation to defeat summary judgment.



Issue(s): (1) Whether the Compensation Clause prohibited Congress from disallowing certain annual increases in judicial salary contemplated by the Ethics Reform Act of 1989 when the statutes disallowing those increases were enacted into law before the increases were scheduled to take effect; and (2) whether, under the Act of Nov. 28, 2001, Congress’s failure in 2007 and 2010 to pass specific legislation authorizing judicial salary increases prevented increases for those years from taking effect.



Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.



Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.



Issue(s): (1) Whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, preempts a rule of state law holding that a broadly worded general power of attorney that is to be “liberally construed” and that grants unrestricted power over the principal’s affairs, specifically including all matters relating to the principal’s medical care, will be interpreted to exclude the authority to execute an optional arbitration agreement covering disputes arising out of the principal’s medical care unless such arbitration-specific authority is expressly stated in the power of attorney; and (2) whether the FAA preempts a rule of state law that categorically prohibits the arbitration of wrongful death claims in accordance with a valid arbitration agreement entered into by the decedent.



Issue(s): Whether states can bypass the holding in Graham v. Florida , that the Eighth Amendment prohibits a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime, by imposing term-of-year sentences that deny juvenile non-homicide offenders any chance for release.

Posted in Cases in the Pipeline

Recommended Citation: Mary Pat Dwyer, Petitions to watch | Conference of April 19, 2013, SCOTUSblog (Apr. 17, 2013, 9:42 PM),