Taking Stock: New Cases and an Emerging Picture of the Term

With the “long conference” before the beginning of the 2016 Supreme Court Term complete the Court has granted what could be the last set of cases before the Justices start hearing oral arguments next Tuesday (Oct. 4). The Court has two months of hearings scheduled with other cases still lacking oral argument dates. The Court’s docket is up to 40 cases and with three consolidated cases this will lead to 37 oral arguments. See the Figure below for the growth of the Court’s 2016 docket in terms of consolidated arguments up to the current time.

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The Court granted nine new cases today and since one of the grants consolidates two dockets, this will lead to eight new arguments. By comparison the Court granted 13 new cases in its long conference last year when Justice Scalia was still on the Court. While none of these cases contain the national importance of cases from years past, there are several notable aspects of the additional cases.

IP Heavy Docket
This Term is likely to be heavy with intellectual property (IP) cases. The Court has five IP cases making up 1/8 of its total caseload for the Term so far. The fifth case which was granted today is Lee v. Tam. This fairly publicized case involves a trademark that was not granted to an Asian American rock band because the U.S. Office of Patent and Trademark Office deemed the band’s name, The Slants, disparaging to Asian Americans. The other non-patent IP case the Court already granted is Star Athletica v. Varsity Brands. This case concerns whether aspects of cheerleaders’ uniforms should be copyright protectable or are non-copyrightable “useful articles.”

The other IP cases granted so far include Life Technologies v. Promega, Samsung v. Apple, and SCA Hygiene v. First Quality Baby Products.

OSG Involvement
In a recent post I mentioned how the cases the Court was most likely to grant involve the Office of the Solicitor General representing a petitioner on the merits or as an amicus. Three of the eight arguments granted today involve the OSG in one of these capacities. The OSG represents the petitioner in Lynch v. Dimaya, in Lee v. Tam, and recommended granting the petition in response to the Court’s request in Endrew F. v. Douglas County School District. In addition the OSG represents the respondent in a newly granted case McLane v. EEOC where the Court will examine the proper standard for a court’s review of an agency’s decision.

Most terms it seems that the Court grants somewhat unique issues in bunches. This Term there are already two cases examining aspects of the federal The Individuals with Disabilities Education Act (IDEA) statute. The Court’s prior grant was in the case Fry v. Napoleon Community Schools which looks at the necessary sequence when a party wishes to achieve a monetary remedy under s separate statute but already has filed a lawsuit under IDEA which does not provide for money damages.

In the newly granted Endrew F. v. Douglas County School District the Court will examine whether under IDEA parents should be provided with tuition for private school if they feel their designated public school cannot provide adequate services for a particular child’s needs.

Lots from the 9th Circuit
The Court added four cases from the 9th Circuit today bringing the total for the Term to nine cases from the 9th Circuit or almost 1/4 of the Court’s merits docket. The new grants include Lynch v. Dimaya, McLane v. EEOC, and the consolidated cases Goodyear Tire v. Haeger and Musnuff v. Haeger. These cases join those already granted from the 9th Circuit including Lightfoot v. Cedant Mortgage Corp., Microsoft v. Baker, Jennings v. Rodriguez, Shaw v. United States, and Salman v. United States.

More Supreme Court Regulars
As I’ve mentioned, a small, select group of attorneys has dominated Supreme Court litigation over the last several decades. As the Term continues to take shape, these attorneys inevitably are involved in a greater number of cases. This was apparent with the newly granted cases.
Representing parties along with Solicitor General Gershengorn, include attorneys Neal Katyal in Douglas County School District, E. Joshua Rosenkranz in Lynch v. Dimaya, and Deepak Gupta in Expressions Hair Design v. Schneiderman.
More attorneys from this select group have joined as representatives of amici as well. Two highly notable such attorneys include Lisa Blatt as representative for Pro-Football, Inc. in Tam v. Lee and Paul Clement as representative for Albertsons LLC in Expressions Hair Design. When added to the long list of veteran Supreme Court attorneys already involved in cases for this Term, this facet of Supreme Court litigation should appear quite similar this Term to what it has in the past.

What’s Missing
Much conversation surrounding the Supreme Court still involves the empty seat left by Justice Scalia and the stalemate against confirmation hearings for Judge Garland. The Justices function differently with eight rather than nine members on the Court. Two potential effects of this even number include the Court taking fewer cases generally and taking fewer cases specifically that will potentially divide the Justices evenly. This fear is likely only augmented when dealing with high-profile cases that will garner public spotlight.

Potentially providing credence to this sequence of logic, the Court has yet to grant cases dealing with contentious constitutional issues as it had in past years with cases concerning marriage equality, abortion, and national healthcare. Last Term, several of these highly anticipated cases including Zubik, US v. Texas, and Friedrichs divided the Justices evenly leaving the issues in the cases without resolution from the Court. These (in)decisions along with the fact that the Court has one fewer member to vote on cert (even though they still need four votes to grant any case) only increase the likelihood that the Justices will avoid similar divisive cases until a ninth member is added to the Court.

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