Sixteen. That is the number of cases that the Supreme Court is currently slated to hear in the 2016 Term. This number in itself is exceptionally low for this time of year, although in terms of absolute case grants it is not exponentially far behind years past (see below).
For those who follow the Supreme Court though, this low rate of grants is troublesome due aspects internal to the Court itself. With eight sitting Justices, the Court has cautiously ruled in many of the cases so far this Term. Still, decisions in the more controversial cases dealing with executive power, abortion, and affirmative action are still pending and this may have to do with the Justices’ inability to reach a majority vote on these issues (although since Justice Kagan has recused herself in Fisher, there is not the same concern stemming from an even number of Justices).
Has the Court been tentative in its rulings since Justice Scalia passed away? Has it been tentative to grant cases for the next Term for the same reason? There is no sign that Congress is any closer to holding confirmation hearings for a potential Justice and with this “unprecedented” delay in confirming a new Justice, there is no clear timeline for any change to this Court composition.
This begs the question at the heart of this post which is: What is on the Court’s slate for next Term? The Court has yet to grant many cases with hot-button political issues for next Term, especially compared to the past several Terms. There are two death penalty cases that could very well change the trajectory of this practice in the U.S. (as an aside the order granting cert in Moore v. Texas had a documented error in the cert grant where the Court initially granted all aspects of the case and this later was amended to include only the first question) as well as a significant redistricting case. The following figure presents the general issues the Court will confront in the cases so far accepted for next Term.
Intellectual property rules out with three cases – two dealing with patents and one with copyright. There are also two Fifth Amendment cases dealing with takings and double jeopardy, as well as two Sixth Amendment cases dealing with impartial juries and effectiveness of counsel. In the remainder of the post I go through the individual cases and discuss how they can be looked at comparatively.
With so few grants there are only a handful of attorneys with successful cert petitions. Some of these are well known Supreme Court repeat attorneys, while other are not as well known in this forum. The same can be said for the law firms that employ these attorneys. The petitioning counsels and firms lucky enough to have a case on the docket for next Term are listed below:
|Counsel of Record||Firm of Record|
|Martin Black||Dechert LLP|
|Kathleen Sullivan||Quinn Emanuel|
|John Cline||Law Offices of John D. Cline|
|Koren Bell||Federal Public Defender|
|John Bursch||Warner Norcross|
|David Cortman||Alliance Defending Freedom|
|Sheila Birnbaum||Quinn Emanuel|
|Jeffrey Fisher||Stanford Law School Supreme Court Litigation Clinic|
|John Groen||Pacific Legal Foundation|
|Christina Swarns||NAACP Legal Defense & Educational Fund|
|Lisa Blatt||Arnold & Porter|
|Michael Caruso||Federal Public Defender|
|Stanley Eisenhammer||Hodges Loizzi|
|Clifford Sloan||Skadden Arps|
|Stephen Rummage||Davis Wright Tremaine|
|Marc Elias||Perkins Coie|
The only repeat entities on the list thus far are Quinn Emanuel and the Deputy Federal Public Defender. While we will almost assuredly see more experienced Supreme Court counsel on cert grants for the upcoming Term, there are a handful of the regulars players already on this list (this includes Jeffrey Fisher from Stanford’s Supreme Court Law Clinic which I previously reported was the most successful cert petitioner from 2001 through 2015).
Three of the upcoming cases – Manuel v. City of Joliet, Shaw v. United States, and Buck v. Stephens – are in-forma pauperis or involve petitioners with sufficiently low funds that Court fees are waived. In terms of the lower courts with multiple cases granted for review, three (not shockingly) come from the Ninth Circuit, two from the Fifth, and two from the Federal Circuit.
The number of cert stage amicus briefs is oftentimes a good gauge of case importance. The table below has the cases accepted for next Term listed in order of the number of cert stage amicus briefs filed in them:
|Samsung Electronics Co. v. Apple||6|
|State Farm Fire and Casualty v. United States ex rel. Rigsby||6|
|Pena-Rodriguez v. Colorado||6|
|Trinity Lutheran Church of Columbia, Inc. v. Pauley||5|
|Moore v. Texas||5|
|Microsoft Corp. v. Baker||4|
|SCA Hygiene v. First Quality Baby Products, LLC||3|
|Star Athletica, LLC v. Varsity Brands, Inc.||2|
|Murr v. Wisconsin||1|
|Buck v. Stephens||1|
|Salman v. United States||0|
|Shaw v. United States||0|
|Bravo-Fernandez v. United States||0|
|Manrique v. United States||0|
|Manuel v. City of Joliet||0|
|Bethune-Hill v. Virginia State Board of Elections||0 (appeal)|
The three cases with six cert-level amicus filings are Samsung Electronics Co. v. Apple which deals with the profits attainable from a finding of patent infringement, State Farm Fire and Casualty v. United States ex rel. Rigsby dealing with the False Claims Act, and Pena-Rodriguez v. Colorado looking at the right to an impartial jury under the Sixth Amendment. For the two death penalty cases, there were five amicus briefs filed in Moore v. Texas and one in Buck v. Stephens.
One other important dimension of the new grants has to do with circuit splits. One of the main criteria that leads to cert grants, also specified in Supreme Court Rule 10, is the importance of Supreme Court review of cases in instances of inter-circuit disagreement. A main source for information on current circuit splits is the Seton Hall Circuit Review. In the latest issue the journal noted 44 different areas where there was a split between circuits. At very least this shows that there are ample sources for cases that the Court may examine next Term.
Of the cases already granted for next Term, ten of the petitions for certiorari (of the 16 total) allege circuit splits. The following table including the allegation a circuit split (if any) from each petition:
|Case||Alleged circuit split|
|SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC||NA|
|Samsung Electronics Co. v. Apple||NA|
|Salman v. United States||“But the Second, Eighth, and Ninth Circuits adhere to the position that a failure to investigate suspicious circumstances suffices to establish willful blindness, and the First, Fifth, and Eleventh Circuits have approved instructions that omit the ‘deliberate actions requirement.'” (No. 15-628 Petition For Certiorari, p 3-4)|
|Shaw v. United States||“With the Ninth Circuit’s minority-view
decision below, every circuit has now opined on the question and the split, post-Loughrin,
has only increased.” (No. 15-5991 Petition for Writ of Certiorari, p. 3)
|Star Athletica, LLC v. Varsity Brands, Inc.||“…Sixth Circuit’s Approach exacerbates
a widespread, mature circuit split, obtains an
outcome in this case that directly conflicts with
decisions by the Second and Fifth Circuits
a widespread, mature circuit split, obtains an
outcome in this case that directly conflicts with
decisions by the Second and Fifth Circuits.” (No. 15-866, Petition for Writ of Certiorari p. 33)
|Trinity Lutheran Church of Columbia, Inc. v. Pauley||NA|
|State Farm Fire and Casualty Co. v. United States ex rel. Rigsby||“A three-way circuit split exists as to the standard for determining whether to dismiss a relator’s claim for violation of the FCA’s seal requirement. Depending on the circuit, such a violation (i) mandates dismissal of the relator’s claim, as the Sixth Circuit has held; (ii)
mandates dismissal if the violation incurably frustrates the congressional goals served by the seal requirement, as the Second and Fourth Circuits have held; or (iii) warrants dismissal only if the seal violation caused actual harm to the Government pursuant to the balancing test applied by the Fifth Circuit in this case and the Ninth Circuit.” (No. 15-513 Petition for Writ of Certiorari, p. i)
|Pena-Rodriguez v. Colorado||“The Colorado Supreme Court here joined one federal court of appeals and one state court of last resort in holding that no-impeachment rules are constitutional even when applied to juror testimony regarding racially biased statements. See Pet. App. 16a. By contrast, two federal courts of appeals and seven state courts of last resort hold – as the dissent contended below – that the Sixth Amendment prevents courts from barring juror testimony on such statements.” (No. 15-606 Petition for writ of Certiorari , p. 9-10)|
|Murr v. Wisconsin||NA|
|Buck v. Stephens||“The Fifth Circuit’s troubling pattern has resulted in a demonstrable circuit
split with respect to the application of the COA standard. As described in Appendix
F, a review of electronically available capital § 2254 cases in the Fifth Circuit and
two other nearby circuits (the Fourth and Eleventh) in the last five years,
demonstrates a dramatic difference among the three circuits.” (No. 15-8049 Petition for Writ of Certiorari, p. 26)
|Bravo-Fernandez v. United States||” The court of appeals’ decision below also conflicts with decisions of two other State high courts. Like the Michigan Supreme Court, the New Mexico and Iowa Supreme Courts have held that an acquittal precludes retrial of a vacated conviction, if the acquittal necessarily determined a fact that is an element of the vacated conviction.” (No. 15-537 Petition for Writ of Certiorari, p. 11)|
|Manrique v. United States||“In this more focused context, the circuits split 4-1 on the jurisdiction of a Court of Appeals to decide a restitution challenge based solely on the filing of a premature notice of appeal. Four
circuits recognize their jurisdiction – the First (Cheal), Second (Hyde), Sixth (Stoian),
and Ninth (Castro) – while the Eleventh (Manrique) holds that it lacks jurisdiction.
But even that circuit split can arguably be counted differently, as 3-2, because
although the Ninth Circuit recognized its jurisdiction in Castro it still refused to give
effect to Rule 4(b)(2) ripening. (No. 15-7250 Petition for Writ of Certiorari, p. 17)
|Manuel v. City of Joliet||“The division between the Seventh Circuit and the ten other circuits that have ruled on this arises out of this Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994).” (No. 14-9496 Petition for Writ of Certiorari, p. 8)|
|Moore v. Texas||NA|
|Microsoft Corp. v. Baker||“Since Livesay, the courts of appeals have split
five-to-two over whether plaintiffs faced with adverse class determinations may evade Livesay’s prohibition against mandatory interlocutory appellate review by voluntarily dismissing their claims, thereby purportedly creating an adverse final judgment.” (No. 15-457 Petition for Writ of Certiorari, p. 8)
|Bethune-Hill v. Virginia State Board of Elections||NA|
There are sure to be more grants before the next Term and we may even see unique procedural moves like certain decisions moved to the following Term in hopes of the Justices finding greater consensus (possibly with the additional of a ninth Justice). At the current grant rate though, the Justices may have even more time on their hands next year for non-Court business than they have had in years past.