The Supreme Court added two new merits cases to its docket for next term, even as the issues that it declined to take up dominated today’s orders from the justices’ private conference last week. The justices also asked the federal government for its views on a dispute between Texas and California over the latter’s ban on government-funded travel to states that it regards as having laws or policies that discriminate against gays, lesbians and transgender people.

Last term, in Henry Schein Inc. v. Archer and White Sales Inc., the Supreme Court ruled that when a contract contains an arbitration provision, and the parties to the contract clearly agreed that an arbitrator (rather than a court) will decide whether a dispute arising out of the contract must be arbitrated, a court must respect that decision even if the court believes that the argument in favor of arbitration is “wholly groundless.” Now the case is back at the Supreme Court, and today the justices agreed to decide a new question in this seven-year-old dispute over the distribution and sale of dental equipment: If the arbitration agreement carves out some claims from arbitration, does that negate the delegation of questions of arbitrability to an arbitrator? The justices turned down a cross-petition filed by Archer and White Sales, which had asked the justices to decide whether an arbitration agreement that identifies a set of rules to apply in arbitration clearly gives the arbitrator power to decide disputes about whether the parties agreed to arbitrate in the first place.

And in Albence v. Guzman Chavez, the justices will decide which provision of immigration law – 8 U.S.C. § 1231 or 8 U.S.C. § 1226 – applies to the detention of a noncitizen who is seeking withholding of removal after a prior removal order has been reinstated. As John Elwood explained last week, the issue is arcane but the distinction between the two provisions matters, because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.

The justices asked the U.S. solicitor general to file a brief expressing the views of the United States in Texas v. California, an original action – that is, a lawsuit that Texas is seeking to file against California in the Supreme Court – challenging a California law that bars state-funded travel to Texas because California’s attorney general concluded that a Texas law allows foster-care and adoption agencies to discriminate against LGBT parents on religious grounds. There is no deadline for the solicitor general to file his brief.

On the same day that it denied review in a group of cases asking it to weigh in on the scope of the Second Amendment, the Supreme Court also declined to tackle another hot-button topic: immunity for government officials (particularly police officers) who violate the Constitution. Under a doctrine known as qualified immunity, lawsuits against government officials accused of violating a plaintiff’s constitutional rights will be allowed to go forward only if the officials violated a “clearly established” right. For the last several conferences, the justices have considered a group of nine cases involving qualified immunity. Some cases asked the justices to weigh in on specific issues related to qualified immunity – for example, whether police officers are entitled to immunity in various scenarios – but several also asked the justices to reconsider the qualified immunity doctrine. However, the justices turned down all nine petitions today.

Justice Clarence Thomas dissented from the denial of review in Baxter v. Bracey, involving immunity for a Nashville police officer who unleashed a police dog on a suspect who was sitting on the ground with his hands in the air. Noting that federal civil rights laws “gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights,” and that there “likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe,” Thomas expressed “strong doubts” about the court’s current qualified immunity doctrine. Therefore, he would have granted Baxter’s petition for review.

The justices’ next conference is scheduled for Thursday, June 18. We expect orders from that conference on Monday, June 22, at 9:30 a.m. EDT.

This post was originally published at Howe on the Court.

Posted in Zadeh v. Robinson, Hunter v. Cole, Albence v. Guzman Chavez, Anderson v. City of Minneapolis, Minnesota, Corbitt v. Vickers, Henry Schein Inc. v. Archer and White Sales Inc., West v. Winfield, Brennan v. Dawson, Dawson v. Brennan, Baxter v. Bracey, Mason v. Faul, Texas v. California, Featured, Cases in the Pipeline

Recommended Citation: Amy Howe, Court grants two new cases, SCOTUSblog (Jun. 15, 2020, 4:29 PM), https://www.scotusblog.com/2020/06/court-grants-two-new-cases/