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Court bulks up this term’s docket (UPDATED)

With time running out to add new cases to its merits docket for this term (at least without expedited briefing schedules), the Supreme Court announced this afternoon that it would take on 12 new cases, for a total of 11 additional hours of argument. Today’s order helps the justices to round out their calendar for their April sitting, which begins on April 16. The new cases – which include challenges to Texas’ redistricting plans and a request to overrule longstanding Supreme Court precedent on the collection of sales taxes by out-of-state retailers – also increase the number of high-profile cases in a term already packed with blockbusters.

The announcement that the justices would hear two appeals involving redistricting in Texas did not come entirely as a surprise. In September, the Supreme Court blocked two lower-court orders that had invalidated two of Texas’ federal congressional districts and the state’s maps for the lower house of the Texas legislature. Those orders, issued in August, had given the Texas governor three days to decide whether to call a special session of the legislature and directed the state to be ready to redraw the maps by early September. The justices’ decision to put the lower-court orders on hold suggests that at least five of them saw some merit to the state’s arguments. Four of them, however, were more skeptical: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all indicated that they would have denied the state’s request.

The Texas cases came to the court as a direct appeal from a three-judge district court, rather than as a request for discretionary review – another reason why today’s announcement was not unexpected. The only real question was whether the justices would add the cases to their merits docket now or perhaps wait to rule on the cases until after they have weighed in on two other redistricting cases, partisan gerrymandering challenges to Wisconsin’s state legislative map and a federal congressional district in Maryland. But, as election law expert Rick Hasen has observed, the Texas cases are “very complex” and raise “some very different issues” from the Wisconsin and Maryland cases; with the 2018 elections looming, the justices may not have wanted to wait any longer to weigh in. And indeed, the justices only acted on the appeals filed by Texas governor Greg Abbott; they did not say anything about the fate of another appeal, filed by the Texas Democratic Party, asking the court to weigh in on allegations of partisan gerrymandering in Texas. Even so, this term is shaping up to be a huge one for redistricting issues at the Supreme Court.

Over 50 years ago, the Supreme Court ruled that the Constitution bars a state from requiring catalog retailers to collect sales taxes on sales made to state residents unless the retailer is “physically present” in the state. In 1992, the court reaffirmed that decision, but in 2015 Justice Anthony Kennedy – pointing to trillions of dollars in online sales each year – suggested that it might be time to revisit the question. Today the justices announced that they would take on South Dakota v. Wayfair, Inc., which asked them to do exactly that. In 2016, the state passed a law that required out-of-state retailers that made at least 200 sales or sales totaling at least $100,000 to collect sales taxes; it eventually sued several retailers that failed to comply. South Dakota’s state courts ruled for the retailers, deeming themselves “duty bound to follow” the U.S. Supreme Court’s rulings. Now the justices will weigh in. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Another significant grant today came in Lucia v. SEC, a challenge to the practice of having SEC staff, rather than the whole commission, appoint administrative law judges of the Securities and Exchange Commission. If the ALJs are “officers of the United States” within the meaning of the appointments clause of the Constitution, they would instead have to be appointed by the commission, and any actions that they have taken would be invalid. As John Elwood reported earlier this week, the federal government had actually recommended that the justices take up this case rather than its own petition on the same question, because it was concerned that its rehearing petition in the U.S. Court of Appeals for the 10th Circuit had gone to the chambers of now- Justice Neil Gorsuch, which might in turn lead Gorsuch to recuse himself from the case and result in deadlock on the Supreme Court. Elwood also notes that, shortly after the government filed its brief agreeing that the justices should take up Lucia, “the SEC formally ratified the appointment of the ALJs in question, so their actions going forward would be valid,” but that apparently did not stop the justices from taking on the legal question anyway.

In Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd., the justices agreed to decide whether and to what extent a U.S. court should defer to a foreign government’s characterization of its own law. The case arose when U.S. companies that purchase Vitamin C from (among ) Chinese companies filed lawsuits against a group of Chinese companies, alleging that the Chinese companies had violated U.S. antitrust laws by conspiring, through a group known as the China Chamber of Commerce, to fix the prices and quantities of Vitamin C. The Chinese companies asked the U.S. court to throw the cases out. They acknowledged that they had fixed prices and quantities of Vitamin C, but argued that they were required to do so under Chinese law – an assertion confirmed in a “friend of the court” brief filed by the Chinese government.

The district court rejected the Chinese companies’ request, reasoning that (despite the argument to the contrary by the Chinese government) the price-fixing was not mandated by Chinese law. The case went to a jury, which awarded the U.S. companies $147 million in damages. On appeal, the U.S. Court of Appeals for the 2nd Circuit reversed, ruling that it was “bound to defer” to the Chinese government’s characterization of Chinese law.

The U.S. companies went to the Supreme Court, which initially asked the federal government to weigh in. In a brief filed in November, the U.S. government recommended that the justices grant review to take up the foreign-law question. The government told the justices that, although courts “should give substantial weight to a foreign government’s characterization of its own law,” that submission “need not be treated as conclusive in all circumstances.” It remains to be seen whether the justices will agree.

The other cases granted today are:

  • WesternGeco LLC v. ION Geophysical Corporation: Whether a patentee who has shown patent infringement in the United States can ever recover damages for the profits that it would have earned outside of the United States if the infringement had not occurred. (Justice Samuel Alito is recused.)
  • Lamar, Archer & Cofrin, LLP v. Appling: Whether (and, if so, when) a debtor’s statement concerning a specific asset, provided to show the debtor’s ability to pay a debt, can be a “statement respecting the debtor’s … financial condition” for purposes of the Bankruptcy Code.
  • Lagos v. United States: Whether the Mandatory Victims Restitution Act covers costs for reimbursement that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.
  • Washington v. United States: Whether road culverts that reduce fish habitat in Washington state violate Native American fishing rights guaranteed by treaty.
  • Pereira v. Sessions: Whether, to trigger the stop-time rule for a non-permanent resident’s eligibility for cancellation of removal by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”
  • Wisconsin Central Ltd. v. United States: Whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act.
  • Chavez-Meza v. United States: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, whether it can instead issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.” (Justice Neil Gorsuch is recused.)

The justices did not act on Hidalgo v. Arizona, a challenge to the constitutionality of both Arizona’s capital sentencing scheme and the death penalty more broadly. Justice Stephen Breyer has suggested on more than one occasion recently that the justices should take up the latter question, but it is not clear that there are four votes to do so, much less the five votes needed for a ruling that the death penalty violates the Constitution’s prohibition on cruel and unusual punishment. Today’s conference was the fourth one at which the justices have considered Hidalgo’s petition for review.

Under normal circumstances, today’s grants would ordinarily be the last cases added to the docket for October Term 2017. Although that may still be the case, the justices could opt to add additional cases to this term’s docket, even if it means an expedited briefing schedule – particularly with the Trump administration’s petition in the latest iteration of the challenges to the so-called “travel ban” slated for consideration at the justices’ January 19 conference.

Today’s orders were not even the only recent development involving redistricting at the court. On Tuesday, a three-judge federal court in North Carolina struck down the state’s federal congressional map, ruling that Republicans had drawn the map to give themselves an advantage over Democrats – specifically, the court stressed, to guarantee Republicans’ “domination of the state’s congressional delegation.” The court ordered the state legislature to come up with a new plan by January 24, but today North Carolina Republicans asked the Supreme Court to step in and put that ruling on hold. Complaining that the lower court “has used an entirely novel legal theory to hopelessly disrupt North Carolina’s upcoming congressional elections,” the Republicans told the justices that there “is no reason to treat this case differently from” the Wisconsin redistricting case currently before the court: The Supreme Court put the order to draw new maps in Wisconsin on hold, and it should do the same here, issuing a ruling by January 22. The state’s request goes to Chief Justice John Roberts, who handles emergency appeals from the geographic area that includes North Carolina. Roberts quickly ordered the groups challenging the map to file a response by noon on January 17, which would allow the justices to act on the request quickly.

This post, which was originally published at Howe on the Court, was updated at 5:10 p.m. to include discussions of all the cases granted today.

Recommended Citation: Amy Howe, Court bulks up this term’s docket (UPDATED), SCOTUSblog (Jan. 12, 2018, 3:54 PM),