SCOTUS Watch – Thursday, June 16th

June is SCOTUS Decision month, when all eyes turn to the Supreme Court for rulings on the cases argued this term (before the court adjourns on June 30th for the summer). The calendar normally calls for orders and opinions to be released every Monday – 9:30am for orders and 10:00am for opinions. However, history has shown that additional “opinion days” are often added as the month unfolds. Today will be a Thursday opinion day.

As always, the Moose News Network will cover the SCOTUS events with the help of SCOTUSblog and Twitter.

 
All eyes turn to the court

The Supreme Court will be in session this morning for opinions starting at 10:00am Eastern. SCOTUSblog will liveblog at this link starting at 9:30am Eastern.

There are 16 cases pending. These are the major and/or newsworthy cases heard in the current term but not yet decided:
– United States v. Texas
Whether the Obama administration has the authority to issue its new deferred-action policy for undocumented immigrants, whether the states have standing to challenge the policy at all, whether DHS was required to notify the public about the proposed policy and provide opportunity for the public to weigh in on it, and whether the policy violates the Constitution’s “Take Care Clause,” which requires the president to “take care that the laws be faithfully executed.”
– Whole Woman’s Health v. Hellerstedt
Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.
– Fisher v. University of Texas at Austin
Does the use of racial preferences in undergraduate admissions by the University of Texas violate the Equal Protection Clause?
– Encino Motorcars, LLC v. Navarro
Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.
– McDonnell v. U.S.
Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

A full list of pending cases (with links) is below the fold.

USA Today analysis:

The court now faces three issues of huge social importance: Abortion, immigration and affirmative action.

Those are the highlights from among 19 cases left to be decided before the end of June. They include a second tier of closely watched cases, including one that could set a higher bar for public corruption, another that could help ease Puerto Rico’s crushing debt and a third that could affect drunk drivers who refuse breath or blood tests. […]

Affirmative action. A former white student’s challenge to the University of Texas’ use of racial preferences in admissions dates back the longest. The case was heard in early December, after being returned to the Supreme Court for a second go-round. In 2013, the justices demanded tougher judicial scrutiny of the school’s use of race, but an appeals court again sided with UT.

Unlike the other cases, this one will be decided by just seven justices, because Justice Elena Kagan has recused herself after working on it as U.S. solicitor general. Without the risk of a tie, advocates and opponents of affirmative action anticipate a ruling for or against the policy — perhaps with repercussions for other universities as well. The betting line tilts slightly against UT.

Abortion. Another case from Texas challenges a state law that imposed major restrictions on abortion clinics, ostensibly to protect women’s health. The law requires clinics to meet the same standards as ambulatory surgical centers and forces doctors to have admitting privileges at nearby hospitals — rules that threaten to leave only nine fully functioning abortion clinics in a state with 5.4 million women of reproductive age.

Two lower federal courts have upheld the law, but abortion rights proponents say it places too great a burden on women seeking abortions, without a justifiable health benefit. They may have a winning hand if Justice Anthony Kennedy joins the court’s four liberals against one or both restrictions. A substantive ruling could represent the most significant abortion decision by the court since 1992.

Immigration. Case number three from Texas is President Obama’s effort to overturn lower court rulings that have blocked him from offering more than 4 million undocumented immigrants a chance to remain in the country without fear of deportation. It represents his last chance to help the parents of those brought to the country as children who have already won such a reprieve.

Texas led a group of 26 states against the plan, complaining that it would have to pay for driver’s licenses if the parents dodge deportation proceedings. Obama’s best chance appears to be the hope that a majority of justices will decide the cost of licenses does not give Texas sufficient standing in court. Otherwise, a 4-4 tie would uphold the verdict of the lower courts, and the program would be dead.

Recap on Thursday, 6/9/2016, Amy Howe 8:48 AM (edited to remove those decided on Thursday):

The cases from the October and November sittings have now all been decided.

In December, there are only two cases left: Dollar General (a Goldstein & Russell case) and Fisher v. UT Austin. Roberts is the only one who has not yet authored an opinion from December. So he almost certainly has one of those. Justice Antonin Scalia had also not yet issued an opinion from December before he passed away in February, and it seems unlikely that he was writing Fisher. That would seem to suggest that Roberts is writing Fisher and that either he or someone else (but not Breyer, who has already written twice for December) is writing Dollar General.

There are six cases left from the February sitting: Kingdomware Technologies v. United States, Utah v. Strieff, Taylor v. United States, Halo/Stryker, Voisine, and Whole Woman’s Health. Too many cases left to try to predict which Justices might be writing.

From SCOTUSblog: October 2015 Term cases pending (oldest cases first)

Dollar General Corporation v. Mississippi Band of Choctaw Indians, No. 13-1496 [Arg: 12.7.2015]

Issue(s): Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members

Fisher v. University of Texas at Austin, No. 14-981 [Arg: 12.9.2015, Transcript]
Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

Kingdomware Technologies v. U.S., No. 14-916 [Arg: 2.22.2016]

Issue(s): Whether the Federal Circuit erred in construing 38 U.S.C. § 8127(d)’s mandatory set-aside restricting competition for Department of Veterans Affairs’ contracts to veteran-owned small businesses as discretionary.

Utah v. Strieff, No. 14-1373 [Arg: 2.22.2016]

Issue(s): Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful.

Stryker Corp. v. Zimmer, No. 14-1520 [Arg: 2.23.2016]

Issue(s): (1) Whether the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases.

Taylor v. U.S., No. 14-6166 [Arg: 2.23.2016]

Issue(s): Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. § 1951, the government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.

Voisine v. U.S., No. 14-10154 [Arg: 2.29.2016]

Issue(s): (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Whole Woman’s Health v. Hellerstedt, No. 15-274 [Arg: 3.2.2016, Transcript]

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

RJR Nabisco v. The European Community, No. 15-138 [Arg: 3.21.16]

Issue(s): Whether, or to what extent, the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applies extraterritorially.

U.S. v. Texas, No. 15-674 [Arg: 4.18.2016, Transcript]

Issue(s): (1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

Universal Health Services v. U.S. ex rel. Escobar, No. 15-7 [Arg: 4.19.2016]

Issue(s): (1) Whether the “implied certification” theory of legal falsity under the FCA – applied by the First Circuit below but recently rejected by the Seventh Circuit – is viable; and (2) whether, if the “implied certification” theory is viable, a government contractor’s reimbursement claim can be legally “false” under that theory if the provider failed to comply with a statute, regulation, or contractual provision that does not state that it is a condition of payment, as held by the First, Fourth, and D.C. Circuits; or whether liability for a legally “false” reimbursement claim requires that the statute, regulation, or contractual provision expressly state that it is a condition of payment, as held by the Second and Sixth Circuits.

Bernard v. Minnesota, No. 14-1470 [Arg: 4.20.2016] (Includes Beylund v. Levi, No. 14-1507 and Birchfield v. North Dakota, No. 14-146)

Issue(s): Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

Encino Motorcars, LLC v. Navarro, No. 15-415 [Arg: 4.20.2016, Transcript]

Issue(s): Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.

Kirtsaeng v. John Wiley & Sons, No. 15-375 [Arg: 4.25.2016]

Issue(s): What constitutes the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act.

Cuozzo Speed Technologies, LLC v. Lee, No. 15-446 [Arg: 4.25.2016]

Issue(s): (1) Whether the court of appeals erred in holding that, in inter partes review (IPR) proceedings, the Patent Trial and Appeal Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the court of appeals erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the Board’s decision whether to institute an IPR proceeding is judicially unreviewable.

Mathis v. U.S., No. 15-6092 [Arg: 4.26.2016]

Issue(s): Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

McDonnell v. U.S., No. 15-474 [Arg: 4.27.2016, Transcript]

Issue(s): Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.