This is going to be a big year in front of the Supreme Court. Likely with more fireworks than the last few. Since Justice Scalia passed away during the 2015 Supreme Court Term, the Court has been in an adjustment period. There was the long stint without a ninth justice. Justice Gorsuch was finally confirmed at the tail end of the 2016 term. At the end of his first full term in 2017 Justice Kennedy announced his retirement. This past term was Kavanaugh’s first term on the Court.
Justices are often prone to agreement with other justices during their first term on the Court leading to a high frequency in the majority (Kavanaugh had the highest frequency in the majority of the justices last term at 88%) and they begin to develop their own pattern of voting in subsequent terms. The consensual norm in a justice’s first year is known as the “freshman effect.” Research from Professor Lee Epstein and others has shown how justices’ preferences change over time.
Now that Kavanaugh is in his second term on the Court and the justices have begun to establish new voting relationships with one another we might expect more coalition voting among the justices. As it was last term, the more conservative justices voted together in seven 5-4 decisions and the liberal justices voted together in the majority of ten 5-4 decisions. One major shift this term from last is in the tenor of the cases the Court has granted. While the Court heard some noteworthy cases last term and perhaps one of its most profound decisions in years with Rucho v. Common Cause, the Court’s overall docket was far from electrifying. That is likely to change this term with cases dealing with issues ranging from Second Amendment rights, to the legality of DACA and other immigration rights, to cases dealing with employment discrimination based on sexual orientation. Based on the justices past decisions in cases dealing with similar issues, we might expect them to diverge along ideological lines in these cases as well as in many others.
There are several of important points raised in briefs in these cases that do not merely highlight the cases main issues.
Briefs in several cases request the Court to examine and potentially overrule its past decisions. These include examining the possibility of overturning the following cases:
- Employment Division v. Smith, 494 U.S. 872 (1990) and Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) in Bostock v. Clayton County, Georgia
- The Insular Cases in Financial Oversight and Management Board For Puerto Rico v. Aurelius Investment, LLC
- Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) in Mathena v. Malvo
- Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) and Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) in Comcast Corporation v. National Association of African American-Owned Media
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999) in Allen v. Cooper
- District of Columbia v. Heller, 554 U.S. 570 (2008) in New York State Rifle & Pistol Association, Inc. v. City of New York, New York
That means with just the partial list of cases granted for the 2019 term, parties are asking the Court to examine and possibly overturn nine cases with parties in two upcoming cases requesting the Court to examine the same past decisions (Price Waterhouse in Comcast and R.G. and G.R. Funeral Home and Espinoza v. Farah Manufacturing in R.G. and G.R. Funeral Home and Bostock).
Beyond overturning past decisions, parties are also already asking the Court to revisit and possibly overturn several prominent federal laws and policies. These include:
- Title VII of the Civil Rights Act of 1964 in whole and part in Bostock v. Clayton County, Georgia
- The EEOC policy change to prevent employers from taking sex into account in any employment decision in Bostock v. Clayton County, Georgia
- Parts of Title VII in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission
- The insanity defense in Kahler v. Kansas
- The non-delegation doctrine in Department of Homeland Security v. Regents of the University of California
- DACA (and the constitutionality thereof) in Department of Homeland Security v. Regents of the University of California
- The constitutionality of Financial Oversight and Management Board for Puerto Rico as “Officers of the United States” within the meaning of the appointments clause in Financial Oversight and Management Board For Puerto Rico v. Aurelius Investment, LLC
- The current interpretation of the Clean Water Act in County of Maui v. Hawai’i Wildlife Fund
- Chevron Deference to the Bureau of Immigration Affairs in Barton v. Barr
What do the cases have in common this coming term? They deal with many similar general issues and will help the Court confront and clarify doctrine in several key areas. The following figure goes through the general issues in the cases already granted for the coming term:
The most cases, nine, deal with criminal procedure issues. Some of these cases in include Ramos v. Louisiana looking at whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict., and Kahler v. Kansas looking at whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. The predominance of criminal procedure cases this term is in line with what we have seen over the past number of years as the following graph for the 2005-2017 Supreme Court Terms from the Supreme Court Database shows:
The coding in this post does not totally align with the issues coded in the Supreme Court Database though as the post looks at case areas more granularly. This approach shows the Court will focus much of its energy in defining civil procedures as well as continue its focus on intellectual property and immigration related cases from past terms.
When we break down the cases so far on the Court’s docket by the type of law or legal issue involved, we get a different take on the areas of the Court’s focus.
The Court as usual will focus its energies in interpreting the meaning and constitutionality of federal statutes. As the first figure made clear though, the Court will also review a good deal of its past precedent. The Court has more Eighth Amendment cases so far on its slate than cases dealing with other Amendments and it will also review provisions from several international conventions (something not terribly common for the Court). Invariably, we will see more cases where Constitutional Amendments come into play as the Court adds more cases to its 2019 merits docket.
Who is Involved
While the Supreme Court has yet to release a hearing list for 2019 oral arguments, we already have a sense of the attorneys, firms and amicus groups. The Supreme Court dockets contain information on the counsel of record in each case. Although these are not necessarily the arguing attorneys, they tell us attorneys and firms involved in the cases. Furthermore, outside of the Solicitor General’s Office (OSG) which lists SG Noel Francisco as the counsel of record in every instance where the OSG is involved in a case, most other firms list a primary attorney on the case as the counsel of record. The Supreme Court’s Guide for Counsel highlights the importance of the counsel of record: “The Merits Cases Clerk should be notified as soon as possible of changes in counsel of record at the merits stage in addition to the filing of a notice of appearance through the Court’s electronic filing system. A party, or parties jointly filing, may have only 1 counsel of record.” Counsel of record for merits parties in cases also granted for the upcoming term are shown in the graph below:
Not surprisingly, SG Noel Francisco is listed most often as counsel of record as discussed above. All other attorneys listed as counsel of record in multiple cases are already prominent practitioners before the Supreme Court. They include Kansas’ SG, Toby Crouse (Kansas has three cases upcoming before the Supreme Court this term) and several other attorneys that have each previously argued multiple cases before the Court including Paul Clement, Sarah Harrington, Shay Dvoretzky, Paul Hughes, Neal Katyal, Lisa Blatt, Joe Palmore, and Donald Verrilli.
When we look at the firms of record for the merits parties in these cases as listed in the Supreme Court docket, we see many prominent firms with extensive Supreme Court experience as well.
After the United States OSG, Sidley Austin, Kirkland & Ellis, and Gibson, Dunn, & Crutcher are the three most frequent firms of record listed four times apiece. This goes to show that multiple firms with expertise in Supreme Court practice will once again have a role in a large swath of cases before the Court.
With only two of the seven oral argument sittings already scheduled for the 2019 Term and many briefs left to be filed, groups have already filed over 260 amicus briefs on the merits. This level of interest from non-parties gives a sense of the importance of these cases to the greater population as well as to the specific groups named in the filings. SCOTUSBlog lists the filings on its case pages (see for example). The following graph tracks the groups that already filed multiple amicus briefs on the merits of upcoming cases (note that the brief names often cover the first named groups on the briefs but not always each later listed group):
As is usually the case, the United States is the most frequent amicus group of the merits so far this term. The Chamber of Commerce has filed the second most briefs so far with seven, followed by the American Bar Association with five, and the Washington Legal Foundation and American Civil Liberties Union with four apiece. Many of these groups are repeat amicus filers before the Court and several are regularly cited in Supreme Court opinions.
The number of amicus filings so far this term provides even greater evidence of the interest in the cases so far granted on cert. We can expect the Court to grant more cases for review in the 2019 term in the upcoming months. Some may deal with contentious and political issues and will more than likely lead to lengthy debates among scholars as well as members of the press. We have to wait to see if the Court stays out of the political fray as some justices advocate, or continue to take on heavily politicized issues as has often been the case in past years aside from the interlude after Justice Scalia passed away when only eight justices sat on the Court.