Monthly Archives: September 2016

OT 2016, Weekly Roundup

Weekly Roundup—September 30, 2016

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Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow @ISCOTUS on Twitter.)

On Monday, September 26, the Supreme Court met for the Long Conference, preceding the official start of the October 2016 Term on October 4. In addition to the 31 already granted cases for the term, the Court granted writs of certiorari for eight more cases from the Long Conference. Of these, Nelson v. Colorado and Lee v. Tam are particularly noteworthy.

Nelson considers a Colorado statute requiring defendants who have their convictions reversed to provide additional clear and convincing evidence of their innocence in order to recover any monetary penalties from their conviction. The question for the Court is whether this policy violates the defendant’s due process rights.

Lee centers on an Asian-American band called “The Slants,” founded by defendant Tam. The band’s name is Tam’s attempt to “reclaim the name” and “divorce The Slants of the slur.” (Read more about the history of The Slants and Tam’s fight against Asian stereotypes, here.) The case itself focuses on the Lanham Act, a section of the U.S. Code, stating a trademark cannot be used as grounds for refusal unless it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  The Court will determine if this provision violates the Free Speech Clause of the First Amendment. Interestingly, the owners of the Washington Redskins filed an amicus brief on June 10, 2016, because the U.S. Patent Trade Office relied on the Lanham Act when it rescinded the Redskins’ patent registrations due to their disparaging nature towards Native Americans.

Greg Stohr of Bloomberg attributes the number and types of cases selected for the October docket to the vacancy left by Justice Antonin Scalia. He argues that the uncertain impact of the upcoming presidential election on the Court has made the justices hesitant to take on particularly divisive issues.

Linda Greenhouse of the New York Times describes the character of the post-Scalia Court by recounting the Court’s recent denial of North Carolina’s emergency request to reinstate discriminatory voter ID provisions that a federal appeals court struck down this summer. “Would it be unseemly to suggest that only Justice Scalia’s death has preserved democracy in North Carolina?” she asks.

October 4 kicks off the October 2016 Term! Come back next Friday for our Weekly Roundup of the first week of the Term.

OT 2014

The Term Begins: The Long Conference

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By ISCOTUS Co-Director Carolyn Shapiro

The Supreme Court’s new Term officially begins on the first Monday in October with oral arguments (although this year, due to Rosh Hashanah, it will be the first Tuesday in October). But before that happens, the Court has some very important business. The justices have not met since the end of June, so they have a large number of pending cert petitions. Every fall, generally the week before the first Monday, they meet for what is known as the Long Conference, where they decide which of those petitions to grant. This year, they are meeting on Monday, September 26. They could announce new grants as early as Monday afternoon.

There are a handful of cases and issues worth keeping an eye on when the Court issues its orders. The two most prominent are the petition for rehearing in United States v. Texas and the cert petition in Gloucester County School Board v. G.G.

United States v. Texas involves the challenge to President Obama’s effort to provide an opportunity for certain undocumented immigrants, such as those with citizen children, to apply for “deferred status.” (Deferred status essentially means that the government is not planning to begin enforcement proceedings. Some immigrants in deferred status can obtain permission to work legally.) A district court in Texas enjoined the program nationwide, and the Fifth Circuit affirmed. The Supreme Court heard argument but was unable to decide the case, issuing an order that the lower court decision was “affirmed by an equally divided court.” The government is asking the Court to rehear the case once it has a full complement of justices. Rehearing under such circumstances is not unprecedented.

G.G. is the case from Virginia involving a transgender student’s access to the bathroom corresponding to his gender identity. The district court had granted an injunction requiring the school to provide such access, and the Fourth District affirmed. The Supreme Court, however, granted a stay of that injunction. The chances of the Court taking this case are very high.

Aside from these two high profile cases, most of the cases to be considered next week are not headline-grabbers, but many of them are quite interesting and potentially important Here are a few cases to watch out for:

There are several cases involving the scope of the Federal Arbitration Act. The cases the Court could take address issues such as a challenge to the impartiality of an arbitrator (Masimo Corp. v. Ruhe) and whether the arbitrator or the court decides if an arbitration agreement precludes class or collective action (Scout Petroleum, LLC v. Chesapeake Appalachia, LLC).

Vanessa G. v. Tennessee Department of Children’s Services asks whether there is a constitutional guarantee of effective assistance of counsel in a proceeding for termination of parental rights.

In Packingham v. North Carolina, a former sex offender brings a First Amendment challenge to a law prohibiting him from accessing websites that enable communication between users if minors are known to have accounts. The petitioner was convicted for a Facebook post announcing the dismissal of a traffic ticket.

Iowa v. Jackson addresses whether consent to search a room necessarily includes consent to search a closed container within that room.

In Armstrong v. Thompson, a law enforcement officer brought a lawsuit for defamation and intentional interference with contractual relations. The defendant was a former coworker who told the officer’s new prospective employer that the officer was under investigation for serious breaches of integrity and that hiring him would be a “grave error.” The issue in the case is whether a law enforcement official a public figure, which provides the speaker significantly wider latitude under the First Amendment than if the official is not.

H. v. California involves the scope of the privilege against self-incrimination for a 10-year-old child.

OT 2016

Prof. Shapiro Discusses the Upcoming Supreme Court Term

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On Wednesday, ISCOTUS Co-Director Carolyn Shapiro spoke on a panel about the upcoming Supreme Court term at the National Press Club in Washington, D.C. The panel was sponsored by the American Constitution Society. Information about the panelists and a video are available on the ACS website.

Professor Shapiro recently returned to Chicago-Kent full time after two-and-a-half years serving as Illinois Solicitor General.