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And then there were 14 – the remaining cases

The justices are expected to take the bench on Thursday, June 21, to issue opinions in argued cases. There are 14 cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Carpenter v. United States (argued November 29, 2017): Timothy Carpenter was charged with being the mastermind behind a series of armed robberies in the Midwest. Police used Carpenter’s cellphone records to place him in the vicinity of the crimes when they occurred, but Carpenter argued that the records should be suppressed because police had not obtained a warrant for them. The trial court rejected that argument and sentenced Carpenter to almost 116 years in prison. On appeal, the U.S. Court of Appeals for the 6th Circuit upheld Carpenter’s conviction and sentence, ruling that police did not have to get a warrant because Carpenter could not have expected the records, which were maintained by his service provider, to be private. The Supreme Court agreed last year to review that ruling. This is the only decision outstanding from the court’s December sitting (which began on November 27), and Chief Justice John Roberts is the only justice who has not written for that sitting, which means he is likely writing the opinion. This should make Carpenter cautiously optimistic: Roberts wrote for the majority four years ago in Riley v. California, holding that police generally need to get a warrant to search a cellphone when the phone’s owner has been arrested.

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

Dalmazzi v. United States (argued January 16, 2018): In this case, several members of the armed forces whose convictions by military courts-martial were upheld by military courts of criminal appeals (CCAs) are seeking new appeals. Their argument rests on the idea that the CCA panels that affirmed their convictions included judges who had also been confirmed to sit on the U.S. Court of Military Commission Review (CMCR), which Congress created to hear appeals from military commissions such as the one in Guantanamo Bay, Cuba. That simultaneous service, they contend, violates a longstanding rule – sometimes known as the “dual-officeholding ban” — that bars active-duty military officers from holding a second job that requires presidential nomination and Senate confirmation.

Currier v. Virginia (argued February 20, 2018): In 2012, Michael Currier was indicted on charges of breaking and entering and larceny, in connection with the theft of a safe containing guns (all later recovered when the safe was found in a river a few days later) and cash from a Virginia home. Currier was also charged with being a felon in possession of a firearm during the time between when the safe was stolen and when it was located. Currier agreed to have the charges against him broken up into two trials. At the first trial, on the breaking-and-entering and larceny charges, Currier was found not guilty. As a result of that acquittal, Currier argued, he could not be tried on the felon-in-possession charge, because the jury had concluded that he had not taken part in the theft at all – and therefore could not have had the guns in his possession. But the Virginia courts disagreed, reasoning that Currier had waived his right to make that argument because he had agreed to separate trials.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia. The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. There are three decisions still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because five justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case, but I am not affiliated with the firm.]

Ohio v. American Express (argued February 26, 2018): This is an antitrust case, in which a group of states are challenging a provision in the contract between American Express and the merchants that accept its cards; the provision bars the merchants from trying to steer their customers to use a particular credit card. The main issues before the court are twofold. First, at what market should courts look at in a case like this: just the merchants, or the merchants and the cardholders? Second, if courts look at both the merchants and the cardholders as the market, do the plaintiffs have to show that both sides are harmed by the provision? [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case, but I am not affiliated with the firm.]

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Wisconsin Central Limited v. United States (argued April 16, 2018): Under the Railroad Retirement Tax Act, “compensation” paid to railroad employees is subject to taxes, which are used to fund a special retirement program for railroad workers. The law defines “compensation” as “any form of money remuneration paid to an individual for services rendered as an employee.” The question before the justices in this case is whether the exercise of stock options qualifies as “compensation.” Although the impact of the court’s ruling will likely be limited to the railroads and their employees, many millions of dollars are at stake.

WesternGeco LLC v. ION Geophysical Corp. (argued April 16, 2018): U.S. laws generally apply only to conduct that happens in the United States. But Section 271 of the Patent Act allows a lawsuit for the infringement of a domestic patent when components are made in the United States and then shipped overseas, where they will be assembled into the patented device. The question before the court in this case is whether the patent holder can get damages not only for royalties on the infringing assemblies, but also for lost profits on overseas contracts that the patentholder would have gotten if the infringement had not occurred.

South Dakota v. Wayfair (argued April 17, 2018): This is another case that asks the Supreme Court to overturn its longstanding precedent – a 26-year-old decision holding that the Constitution prohibits the states from imposing a sales tax on out-of-state retailers that do not have a brick-and-mortar presence in the state. Two years ago, South Dakota passed a law that required retailers to collect sales taxes if they have at least $100,000 in sales or 200 transactions in the state, even if they do not have a store or warehouse there. The state argues that, with the explosion of sales made over the internet, times have changed since the court issued its ruling in 1992, and the question whether a retailer has a connection to the state (a key issue in assessing the constitutionality of the tax) shouldn’t hinge on whether the retailer has a physical presence there. There are still seven decisions left (out of 12) from April, when the case was argued, so it is almost impossible to predict who might be writing this opinion. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to South Dakota in this case, but I am not affiliated with the firm.]

Lucia v. SEC (argued April 23, 2018): Columbia law professor Ronald Mann has written that this case may be “as important a decision for the administrative state as any case the justices have heard all year.” The issue before the Supreme Court is whether administrative law judges (ALJs) of the Securities and Exchange Commission, who preside over hearings similar to trials and issue “initial decisions” in securities cases, are “officers” of the United States for purposes of the U.S. Constitution’s appointments clause, which would require them to be appointed by the president, the courts, or department heads. If the ALJs are indeed “officers,” their appointments would be unconstitutional, because they are chosen by the SEC’s staff rather than the president or the SEC itself. Such a ruling could have ripple effects well beyond the SEC – for example, claims by coal miners disabled by “black lung” disease are also reviewed by ALJs, as are claims for Social Security benefits.

Pereira v. Sessions (argued April 23, 2018): Noncitizens who would otherwise be subject to deportation may in some circumstances be eligible for a reprieve (known as “cancellation of removal”) if – among other things – they have been in the United States continuously for several years. However, time does not count toward this “continuous physical presence” requirement if the government has sent the immigrant a notice to appear for deportation proceedings. In this case, Wescley Pereira received a notice from the government that did not specify the date or time on which he should appear. The question for the Supreme Court is whether that notice is enough to stop the clock on Pereira’s “continuous physical presence” in the United States.

Abbott v. Perez (argued April 24, 2018): This case involves allegations of racial gerrymandering – that is, that Texas lawmakers drew federal congressional and state legislative districts that harmed black and Hispanic residents there. It began as a challenge to maps drawn by the state’s Republican-controlled legislature in 2011. In 2012, a federal district court drew new maps for the election that year; the state legislature adopted those maps the following year. Last year the district court invalidated parts of the 2013 plans, on the ground that they perpetuated discrimination in the 2011 plan, and the Supreme Court agreed to weigh in. Before the justices can reach the merits of the case, though, they must determine whether they have the authority to hear it at all, when the district court did not either issue or deny an injunction – a requirement before the Supreme Court can review appeals from a three-judge district court. If the justices do reach the merits, they then must decide whether the state could have been discriminating against minority voters when it was simply using the maps that the district court had ordered it to use.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, And then there were 14 – the remaining cases, SCOTUSblog (Jun. 20, 2018, 2:30 PM),