The Final Stretch: Cases from the Last Two Months of Supreme Court Oral Arguments

Two months of oral arguments remain on the Supreme Court’s calendar. That equates to twenty-four arguments with eleven in March and thirteen in April (some with consolidated cases).  The Court usually saves some of the most publicly recognized cases for the end of the term.  Last year in March and April the Court took up the healthcare mandate in Zubik v. Burwell and immigration in United States v. Texas. In 2014 the Justices heard the same-sex marriage case, Obergefell v. Hodges, the death penalty case Glossip v. Gross, and a challenge to the EPA’s interpretation of the Clean Air Act in Michigan v. EPA. The year before that the Justices examined rights to TV broadcasts with ABC v. Aereo as well as the first challenge to the ACA’s contraception mandate with Burwell v. Hobby Lobby.

There are important cases on the Court’s agenda over the next two months, and yet none of the cases has received the type of press coverage as cases did in recent years past.  This aspect of the Court’s current term happens to fall into place well with some of the term’s other anomalies such as the slow early pace of case grants, the slow release of decisions, and the large number of unanimous rulings released so far.  Much of this can likely be attributed to a risk-adverse eight-member Court that doesn’t want to divide evenly, especially on important national issues like immigration policy.

Ironically, the one case that garnered significant national attention, Gloucester v. G.G. was remanded from the Court’s docket due to the Trump Administration’s differing stance on the rights of transgender students’ choice of which bathroom they use.  This case generated plenty of discussion as it made its way through the lower courts and took on a new life as a Supreme Court case.  How do we know that this case was anticipated more than some of the others on the Court’s docket? One way is through the count of cert stage amicus briefs filed before the Court decided it would take the case.  These briefs which are generally geared at convincing the Justices to hear a case are not filed in every case.  As the figure below shows, when Gloucester v. G.G. is added to the cases the Court will hear over the next two months, it is the case with the most cert stage amicus filings.

AmicusBriefs.png

Based on this scale alone, there are several other cases in which groups utilized their resources (and money) to try to get cases to the Supreme Court.  Leading this pack are two patent cases: Impressions Products v. Lexmark, a case with large-scale implications for patent rights, and TC Heartland v. Kraft Foods, a case dealing with venue in patent cases.  Big corporations are often interested in patent cases due to their economic implications and some of the cert-stage amici in these cases are of this ilk including Dell, Costco, Intel, Sandisk, as well as thirty-two internet companies, retailers and associations that joined together on one brief.

This goes to the point that cert-stage amicus filings are not, by themselves, necessarily accurate gauges of the general population’s interest in a case.  Since merits stage amicus briefs have yet to be filed in all of these cases, this is not a measure we can rely on yet.  A much smaller handful of cases have amicus briefs filed at the appeals court level and this can provide some insight into cases that generated sufficient interest that groups and individuals wanted to have a say on the cases’ policy implications at a lower court stage.  While several of the cases had between one and three amicus briefs filed in the lower courts, the two cases with the most such briefs by a large margin were Impressions Products v. Lexmark with eighteen, and Saint Peter’s Healthcare System v. Kaplan (a case examining the implications of the church-plan exemption in the Employee Retirement Income Security Act of 1974) with ten.

How else can we differentiate between these cases? The Court called for the views of the Solicitor General regarding whether to grant cert in four of the upcoming cases: Howell v. Howell, a case looking at benefits afforded to a former spouse under the Uniformed Services Former Spouses’ Protection Act, Impressions Products v. Lexmark, Amgen v. Sandoz, and Sandoz v. Amgen. The latter two cases look at patent litigation procedures under a federal statute dealing with the FDA’s route to approving biologic products.  The Office of Solicitor General under former-SG Gershengorn recommended the Court grant all four of these now granted petitions.

We can also define the cases by their respective issue areas.  When the remaining cases are broken down this way, we get the following chart.

Issue Area.png

Most of the remaining cases are split equally between criminal matters and cases that deal with civil procedure.  Civil procedure here broadly encompasses appeals procedures and procedure in class action cases as well.  The four IP cases make up the next largest group of cases and after these there are several cases split between a handful of areas.

Another way to differentiate between these cases is by the amount of and ways they have been covered in the media.  Supporting the point that there is not significant generalized interest in the majority of these cases, most have only received very targeted coverage.  This coverage is typically through specialized legal press although not in all cases.  Examples of the broader coverage in some of these cases include, County of Los Angeles v. Mendez which was detailed in the Huffington Post, Impressions Products v. Lexmark was discussed in the New York Times,  and BNSF Railway v. Tyrrell was looked at by Reuters.

When the cases are broken down by their respective types of media coverage, ranging from minimal or issue specific to national, the percentages break down into the chart below.

Media

According to this characterization more than half of these cases either received minimal or issue specific coverage with just over 10% receiving national coverage.

Some cases made news for other reasons as well. Microsoft v. Baker, Murr v. Wisconsin, and Trinity Lutheran v. Pauley all were atypically granted many months before they were scheduled for oral argument.  There was additional coverage of this issue particular to the Microsoft case.

Trinity Lutheran has also gained substantial attention as it is the only case tackling First Amendment issues in the coming months.  The case deals with public aid to churches through a secular aid program, in a vein similar to notable prior cases like Lemon v. Kurtzman (which led to the development of the Lemon Test).  Trinity Lutheran is also noteworthy for possessing all of the previously discussed attributes of case importance.  There were three amicus briefs filed when the 8th Circuit heard the case, five cert-stage amicus briefs were filed, it has received substantial national news coverage (The Hill characterized it as one of the most important cases of the term), and there are thirty three merits stage amicus briefs that have already been filed in the case (this number of amicus briefs is among the most a case has seen filed so far this term).


On Twitter: @AdamSFeldman

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