September 28, 2016

SCOTUS 2016 Term:By the Numbers(1)

Sept. 21 — The U.S. Supreme Court always kicks off a new term on the first Monday in October. This term that's Oct. 3.

The high court's 2016 docket isn't filled with the kinds of blockbusters that court watchers have become accustomed to over the last few terms.

But the cases the court has agreed to hear offer a little bit for everyone.

From criminal cases to bankruptcy disputes, here's a look at what's up for next term.

Filling the Calendar

The court has already agreed to hear 31 cases of the 75 or so cases it typically hears each term.

Several court-watchers have suggested that the court hasn't granted as many cases as it usually has by this time in the year, likely due to the uncertainty surrounding the court's vacancy.

But the court is actually more or less on schedule . For example, this time last year, the court had only agreed to hear 33 cases.

This term, only two cases came to the court on direct appeal. Those are redistricting disputes out of Virginia and North Carolina, Bethune-Hill v. Va. State Bd. of Elections, No. 15-680 and McCrory v. Harris, No. 15–1262 .

The court has little to no discretion over whether to hear such redistricting disputes. They are heard by special three-judge district court panels and are directly appealable to the Supreme Court.

The other cases arrived at the court via the court's discretionary certiorari power, which typically makes up the bulk of the court's docket.

The court is not set to hear any original jurisdiction cases this term for the second term in a row. These are cases in which the Supreme Court acts like a trial court, such as in disputes between two states.

Remaining Civil Law Cases

Rounding out the court's civil law docket are:

Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., No. 15-423 (Foreign Sovereign Immunities Act);
Ivy v. Morath, No. 15-486 (disability law);
Fry v. Napoleon Cmty. Sch., No. 15-497 (disability law);
State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, No. 15-513 (False Claims Act) ;
Trinity Lutheran Church of Columbia, Inc. v. Pauley, No. 15-577 (constitutional law) ;
Czyzewski v. Jevic Holding Corp., No. 15-649 (bankruptcy) ;
Visa Inc. v. Osborn, No. 15-961 , consolidated with Visa Inc. v. Stoumbos, No. 15-962 (antitrust) ;
Lynch v. Morales-Santana, No. 15-1191 (immigration); and
Jennings v. Rodriguez, No. 15-1204 (immigration) .

Criminal Cases Up First

After consolidating two pairs of the 31 cases, the court has 29 of its argument slots already filled.

Although the court has only released its oral argument calendar for October and November, those 29 slots are enough to get the high court through its December oral argument session.

The October session is stacked with criminal cases.

Supreme Court's 2016 Criminal v. Civil Docket.

Of the eight cases set to be heard in October, five deal primarily with criminal law. Those are:

Bravo-Fernandez v. United States, No. 15-537 (double jeopardy) ;
Shaw v. United States, No. 15-5991 (bank fraud) ;
Buck v. Davis, No. 15-8049 (ineffective assistance of counsel) ;
Pena-Rodriguez v. Colorado, No. 15-606 (juror racial bias) ; and
Manrique v. United States, No. 15-7250 (criminal restitution) .

Two additional cases the Supreme Court will hear in October have connections to criminal law. Those are:

Salman v. United States, No. 15-628 (insider trading) ; and
Manuel v. City of Joliet, No. 14-9496 (Section 1983 malicious prosecution claim) .

That means the court will nearly exhaust the criminal law cases granted cert. so far during the first sitting, leaving only two remaining criminal cases, Beckles v. United States, No. 15-8544 (sentencing), and Moore v. Texas, No. 15–797 (capital punishment).

Civil Cases Run Gamut

The remaining cases on the Supreme Court's docket run the gamut, from an administrative law case to a takings claim: NLRB v. SW Gen., Inc., No. 15-1251 (administrative law), and Murr v. Wisconsin, No. 15-214 (takings claim).

The high court will hear four intellectual property cases, dealing with both patents and copyrights.

Those are:

Samsung Elecs. Co. v. Apple Inc., No. 15-777 (patent);
Life Techs. Corp. v. Promega Corp., No. 14-1538 (patent);
Star Athletica LLC v. Varsity Brands Inc., No. 15-866 (copyright); and
SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods. LLC, No. 15–927 (patent).

It will also hear four cases dealing with civil procedure issues, including Fair Housing Act standing, federal question jurisdiction and class action appeals:

Bank of Am. Corp. v. City of Miami, No. 15-1111 , consolidated with Wells Fargo & Co. v. City of Miami , No. 15-1112 (Fair Housing Act standing);
Lightfoot v. Cendant Mortg. Corp., No. 14-1055 (federal question jurisdiction); and
Microsoft Corp. v. Baker, No. 15-457 (class action appeals) .

Ninth Circuit in Cross Hairs

The cases come from a plethora of courts, from state appellate courts to federal district courts.

Cases from state courts fared terribly last term, with the court reversing nine state court decisions and affirming only two.

So far, the Supreme Court has only taken three cases from state courts for this term.

The Supreme Court typically reverses more cases than it affirms.

That means that the U.S. Court of Appeals for the Ninth Circuit may take the state courts' undesirable place as the most reversed court next term, a distinction it's had in the past .

The high court has agreed to hear five cases out of that circuit so far, more than any other circuit. Last term the Ninth Circuit had a relatively respectable win/loss record of 3-5.

U.S. Involvement

The federal government will be a party in eight of the cases the court has agreed to hear.

Moreover, the Supreme Court specifically invited the federal government to participate in several of the 23 cases in which it isn't a party—at least in the consideration of the petition for certiorari.

The court requested the views of the U.S. solicitor general on whether the court should hear the case in seven of those cases.

The Supreme Court followed the solicitor general's recommendation in five of those cases, and granted two over the SG's recommendation not to consider the case.

That's better than the solicitor general's office had been doing last term, where the court went against the SG's recommendation more often than usual .

‘Relists.'

Also, the court only granted one case so far without a “relist.”

Over the last several terms, the court has generally considered a certiorari petition during at least two private conferences before agreeing to hear the case in full.

Presumably that gives the court additional time to ensure that the case is ready to be heard by the Supreme Court and doesn't have any procedural hiccups that would make it difficult for the court to reach the merits of the case.

That relist procedure was followed for 30 of the 31 cases that the court has already agreed to hear next term. The one exception is Salman, which the court granted on January 19.

The Supreme Court may have been trying to get that case on last term's docket, which ended in June. Ultimately, however, it was scheduled to be heard on Oct. 5.

Long Conference

The Thursday before the new term kicks off, the court typically hands down several grants from its “long conference.”

During that private conference, the justices consider the petitions that have been piling up over the summer.

It's assumed the court doesn't need any additional time to work out any procedural defects with these cases, making a relist unnecessary.

If the court sticks to its practice from previous terms, the next crop of non-relisted grants are expected to be handed down Sept. 29.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

News