On the Merits
The most prolific player before the Supreme Court, the federal government through the Office of the Solicitor General (OSG), should have its hands full this year. As is often the case, the OSG is involved in a large portion of the term’s first set cases. Even before the term begins though the OSG is making news with its brief in Masterpiece Cake v. Colorado Civil Rights Commission, which defends a baker’s decision to decline making a wedding cake for a same-sex couple due to his religious beliefs. If it wasn’t already obvious, this is clearly not the same Department of Justice that defended right to same-sex marriage in Obergefell v. Hodges. One inference from such a policy position shift is that other shifts are likely as well. That assumption is examined in some depth as we plumb the already granted cases for OT ‘2017 with the OSG is a participant.
In some ways there are consistencies between the OSG’s work in the Supreme Court this year and in other recent years. These consistencies begin with the count of cases where the OSG is a direct party on the merits.
Although there is a notable dip in the OSG’s November cases this term, the OSG case count is approximately normal for the first two months of oral argument. Add to that five more scheduled cases where the OSG filed an amicus brief and will participate in oral argument (Wesby, Jesner, U.S. Bank National Association v. Village at Lakeridge, Leidos, and Husted) and the OSG will play a role in at least eleven of the eighteen oral arguments already on calendar this upcoming term.
Along with its role in Masterpiece Cake, the OSG’s caseload is already one of the most consequential in recent memory. This caseload is highlighted by the travel ban case – Trump v. Int’l Refugee Assistance Project – which may prove to be one the most important executive power decision in recent memory. Several important immigration cases were pushed off from last term with Sessions v. Dimaya and Jennings v. Rodriguez.
In Dimaya the Court reviews the question,
“Whether 18 U.S.C. 16(b) [specifically the ‘aggravated felony’ language], as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague?”
In Jennings one of the main questions is
“Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months?”
Interestingly, the OSG has not filed a brief in the significant gerrymandering case to start out the term – Gill v. Whitford. In granted cases yet to be scheduled for oral argument, the OSG is participating in the major Fourth Amendment search and seizure case, Carpenter v. United States, and patent cases, Oil States Energy Services, LLC v. Greene’s Energy Group and SAS Institute Inc. v. Matal.
In Carpenter the Court looks at the question of
“[w]hether the government’s acquisition, pursuant to a court order issued under 18 U.S.C. 2703(d), of historical cell-site records created and maintained by a cellular-service provider violates the Fourth Amendment rights of the individual customer to whom the records pertain?”
The question in Oil States is,
“[w]hether inter partes review, an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury?”
In SAS Institute the Court examines,
“Whether the USPTO may agree to institute inter partes review regarding the patentability of a subset of the patent claims of which review is requested. 2. Whether, if the USPTO institutes review of some but not all of the claims that are challenged in a petition for inter partes review, the Board must address the unreviewed claims in its final written decision?”
While the OSG filed a brief at the cert stage recommending the Court deny hearing the sports betting case Christie v. National Collegiate Athletic Association, the OSG has yet to file a brief and take a position on the merits of this case.
While the OSG has many cases currently in its pipeline, its current petitions to the Supreme Court tend to predominately correspond to criminal and immigration-related concerns (the OSG provides information on case subject matter on its website).
The list of currently pending government petitions includes
|17-312||United States v. Sanchez-Gomez|
|17-97||United States v. Jenkins|
|17-58||Sessions v. Larios-Reyes|
|17-2||United States v. Microsoft Corp.|
|16-1450||United States v. Supreme Court of New Mexico|
|16-1363||Kelly v. Preap|
|16-991||Sessions v. Shuti|
|16-978||Boente v. Baptiste|
|16-966||Boente v. Golicov|
|16-800||National Labor Relations Board v. PJ Cheese, Inc.|
|16-801||National Labor Relations Board v. SF Markets, LLC|
|16-689||National Labor Relations Board v. 24 Hour Fitness USA, Inc.|
|16-617||United States v. Hernandez-Lara|
|16-398||Lynch v. Miranda-Godinez|
|15-1494||Lynch v. Magana-Pena|
|15-1496||Lynch v. Lopez-Islava|
|15-1205||Shanahan v. Lora|
The OSG has three briefs petition stage briefs in response to calls for the views of the Solicitor General. These three cases are Magee v. Coca-Cola Refreshments, Snyder v. John Does, #1-5, and Bank Melli v. Bennett.
The OSG recommended denying the Magee petition that asks,
“Whether Title III of the Americans with Disabilities Act of 1990 applies only to physical spaces that people can enter?”
It also recommended denying cert in Snyder which looks at,
“Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders’ activities within school zones imposes “punishment” in violation of the ex post facto clause?”
The question in Rubin is,
“Whether 28 U.S.C. § 1610(g) provides a freestanding attachment immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether assets are otherwise subject to execution under Section 1610.”
The questions in Bank Melli also concern 28 U.S.C. § 1610(g)’s exceptions for attachment immunity.
A multitude of petitions are regularly filed against the federal government; many more than the OSG could possibly respond to substantively. Instead the OSG waives the right to respond (here is an example of the waiver form) to the majority of these petitions allowing the Court to look at the petitioner’s question without the aid of a response from the OSG. Looking just at the last 90 days, the OSG waived the right to respond to 125 petitions against the federal government.
That said, much of the OSG’s work at the Supreme Court level is in responding to the petitions its officers feel are most compelling. The OSG filed responses to at least 35 pending petitions. These petitions break down according to the following subject matter:
These cases are criminal heavy and yet they also include a diverse array of other issues. The cases with active responses include:
|16-1206||Batato v. United States|
|16-1323||Supreme Court of New Mexico v. United States|
|16-790||Butka v. Sessions|
|16-961 and 16-1017||Dalmazzi v. United States/Cox v. United States|
|16-739||Scenic America, Inc. v. Department of Transportation|
|16-1044||Alaska v. United Cook Inlet Drift Ass’n|
|16-1369||Arizona v. Bahr|
|17-8||Town of Vernon v. United States|
|16-1413||Blankenship v. United States|
|16-1526||Celgard, LLC v. Matal|
|16-1423||Ortiz v. United States|
|16-1298||Bekteshi v. United States|
|16-1370||MasTec Advanced Technologies v. National Labor Relations Board|
|16-1356||Piszel v. United States|
|16-1454||Ohio v. American Express Co.|
|16-1310||Harley Marine Services, Inc. v. Department of Labor|
|16-1400||Wilson v. Department of the Navy|
|16-1371||Byrd v. United States|
|16-1259||Farias v. United States|
|16-1239||Rothe Development, Inc. v. Department of Defense|
|16-1301||Patel v. United States|
|16-1351||Board of County Commissioners of Otero County v. United States|
|16-1190||Davis v. United States|
|16-1320||Upstate Citizens for Equality, Inc. v. United States|
|16-1197||QinetiQ U.S. Holdings, Inc. v. Commissioner of Internal Revenue|
|16-1422||In re Arpaio|
|16-1149||Daugerdas v. United States|
|16-1045||Nowlin v. United States|
|16-1200||Samuel v. United States|
|16-1120||Con-Way Freight, Inc. v. National Labor Relations Board|
|16-1231||Elonis v. United States|
|16-1307||al Bahlul v. United States|
|17-43||Dahda v. United States|
|17-41||Ventura v. United States|
|16-1344||Nosal v. United States|
There is no shortage of intensity in the OSG’s Supreme Court docket at the beginning of this term. With President Trump’s rhetoric regarding the importance of the Supreme Court in upholding his political agenda we can only expect more of the same to come which will in all likelihood heighten the political importance of the Supreme Court in the current administration of federal policies.
On Twitter: @AdamSFeldman
[Note: This post follows up on a prior post looking back at the government’s success before the Supreme Court]