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Justices add eight new cases to docket for upcoming term

The official start to the Supreme Court’s new term will come on Monday, when the eight justices will convene for a non-argument session at 10 a.m. But the unofficial start came at 9:30 a.m. this morning, when the justices released an initial round of orders from their September 26 conference, which was the first conference to add new cases to their docket since late June. The justices granted only eight new cases today, five fewer than this time last year. And although the eight cases in which review was granted present some interesting questions (for example, a trademark case involving the musical group The Slants and a dispute over credit card surcharges), none of them involves particularly high-profile or divisive issues.

Lee v. Tam brings the world of rock music to the often quiet court. Simon Tam, the leader of the musical group The Slants, had asked the U.S. Patent and Trademark Office to register the band’s name. But the PTO refused, explaining that the mark disparages individuals of Asian ancestry. A federal appeals court ruled that the provision of the federal trademark law that allows the PTO to refuse to register “disparaging” marks violates the First Amendment. The federal government (on behalf of Michelle Lee, the director of the PTO) asked the justices to review that decision, arguing that the lower court’s ruling would bar the PTO from refusing to register “even the most vile racial epithet.” Another group will be watching this case very closely: the Washington Redskins, whose trademark the PTO cancelled recently. The Redskins had urged the justices, if they were to grant review in Tam, to take on their case as well, even before a federal appeals court could weigh in.

The credit-card surcharge fee issue arises in Expressions Hair Design v. Schneiderman. Merchants pay a “swipe fee” whenever a customer uses a credit card; that fee is often passed on to customers. A New York law allows merchants to give “discounts” to customers who pay in cash, but it criminalizes the imposition of “surcharges” for customers who use credit cards. A group of merchants challenged the law, arguing that it violates the First Amendment because it restricts what they can tell their customers. In particular, many merchants would prefer to describe the fees as surcharges to discourage their customers from using credit cards. In this case, the 2nd Circuit disagreed, reasoning that the New York law only regulates prices – not speech. But another appeals court struck down a similar law in Florida; now the justices will presumably resolve the conflict.

In Endrew F. v. Douglas County School District, the justices will consider what kind of benefits schools must provide to children with disabilities. The petitioner in the case is an autistic child whose parents’ dissatisfaction with his education in a local public school prompted them to enroll him in a private school and seek reimbursement for the cost of tuition. Under the Individuals with Disabilities Education Act, children with disabilities are entitled to a free appropriate public education, which is implemented through an individualized education program, or “IEP” – a program tailored specifically to each child. In Endrew’s case, the 10th Circuit ruled that schools must merely provide some non-trivial educational benefit; other courts of appeals have ruled that schools must provide a substantial benefit, while still other courts fall somewhere in the middle. The justices asked the federal government to weigh in earlier this year, and in a brief filed in August the government recommended that review be granted. It urged the court to reverse the 10th Circuit’s ruling and hold that states “must provide children with disabilities educational benefits that are meaningful in light of the child’s potential and the IDEA’s stated purposes. Merely aiming for non-trivial progress is not sufficient.”

In Lynch v. Dimaya, the justices will consider whether, for purposes of federal immigration law, the general definition of a “crime of violence” is so vague that it is unconstitutional. In 2015, the court ruled in Johnson v. United States that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” was unconstitutionally vague. Relying on that decision, the 9th Circuit ruled that the definition of “crime of violence” suffers from the same problem as the ACCA’s residual clause, and the federal government asked the court to decide the issue. The government emphasized (among other things) that the text of the definition is quite different from that of the ACCA’s residual clause – as evidenced by the fact that it “has not generated the widespread confusion and interpretive failures that led this Court to invalidate the ACCA’s residual clause.”

Nelson v. Colorado is the case of two Colorado residents who were convicted and sent to prison; they were also ordered to pay restitution and a variety of fees. After their convictions were reversed on appeal, they unsuccessfully sought a refund of the money they had paid. The question before the court is the constitutionality of the state’s requirement that defendants whose convictions are reversed can obtain a refund only if they show, by clear and convincing evidence, that they are innocent. The former inmates argue that Colorado “appears to be the only state” that imposes such a requirement, and they add that the state has “no legitimate interest to keep money that rightly belongs to people whose convictions have been reversed.”

McLane v. EEOC arises from a gender discrimination charge filed with the EEOC against McLane, a national distribution company, by Damiana Ochoa, an employee who was unable to meet the physical standards imposed by the company after she returned from maternity leave. During its investigation into the charge, the EEOC issued subpoenas to McLane seeking information and later sued to enforce them. When a federal district court denied a portion of one of the subpoenas, the EEOC appealed to the 9th Circuit. Reviewing the district court’s decision de novo – that is, as if for the first time, rather than deferring to the lower court’s conclusions – the court of appeals ruled for the agency. The question now before the justices is whether the courts of appeals should review EEOC subpoena determinations de novo (as the 9th Circuit did) or instead use a more deferential standard, as McLane contends other courts do.

Goodyear Tire v. Haeger and Musnuff v. Haeger stem from the imposition of sanctions against Goodyear and its attorney for alleged misconduct in a product liability case alleging that a defect in one of Goodyear’s tires caused a car accident. The district court awarded the plaintiffs $2.7 million, which Goodyear says amounted to “nearly the entirety of the fees incurred over the history of the litigation.” It argues that, unlike other courts of appeals, the 9th Circuit failed to require a “direct causal connection” between the misconduct that is the basis for compensatory civil sanctions and the amount of the sanctions.

In Lewis v. Clarke, the justices will make another foray into Indian law – this time, they will consider the scope of the tribes’ sovereign immunity. The plaintiffs in the case, Brian and Michelle Lewis, were struck by a limousine driven by William Clarke, who was employed by an Indian tribe to drive casino patrons. Both the Lewises were injured in the accident, which occurred about 70 miles from the casino. They filed a lawsuit, but Clarke countered that he was entitled to immunity because he was working for the tribe, which would have had immunity. The state trial court rejected that argument, but the Connecticut Supreme Court reversed. The Lewises then asked the justices to take the case and decide whether a tribe’s sovereign immunity bars lawsuits against tribal employees for damages based on actions committed within the scope of their employment. They argue that other courts, including the 9th and 10th Circuits, would have allowed their lawsuit to proceed.

The justices are expected to release additional orders – including a lengthy list of denials – from the September 26 conference next Monday at 9:30 a.m.

The original post was updated twice to include additional descriptions of the cases the court agreed to review.

Recommended Citation: Amy Howe, Justices add eight new cases to docket for upcoming term, SCOTUSblog (Sep. 29, 2016, 11:14 AM),