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Today, the Court met for conference to discuss petitions for certiorari. It granted certiorari in 16 cases, for a total of 13 hours of oral argument, all likely to be argued this Term. The Orders List is here, and Amy Howe of SCOTUSblog discusses some of the grants here. In three different cases, consolidated for a single hour of argument, the Court agreed to consider whether the National Labor Relations Act, which protects’ employees right to engage in “concerted activities for the purpose of … mutual aid and protection,” means that an arbitration agreement cannot preclude an employee from bringing a class action. The National Labor Relations Board ruled that it did, and the courts of appeals had split. This is a very important case, pitting the Federal Arbitration Act against the NLRA. It will also be very interesting to see if the Trump administration continues to support the NLRB’s position, as the Obama Administration has.
Even before today, the eight-member Court was busy this past week. On Monday, the Court handed down a per curiam opinion in White v. Pauly, ruling without hearing oral argument and without full briefing. Samuel Pauly is a New Mexico man who was shot and killed by police officer Ray White after Pauly pointed a gun at White and a group of officers. Pauly’s estate sued the officers, arguing that his constitutional right against use of excessive force was violated. White argues he used a reasonable amount of force and that he is entitled to qualified immunity. The lower court considered the use of force from the perspective of the suspect instead of the perspective of a reasonable police officer. The lower court denied the officers’ motion for summary judgment on the basis of qualified immunity. The Supreme Court vacated, holding that the lower court incorrectly relied upon “general principles from other excessive force cases,” instead of identifying a case with similar facts and circumstances to the case at hand. It also held that as long as White did not violate “clearly established statutory or constitutional rights of which a reasonable person should have known,” then he is entitled to qualified immunity. Although the Court did not discuss the other officers’ qualified immunity claims in detail, it indicated it was expressing no opinion on whether qualified immunity might be available to them based on other arguments. Justice Ginsburg concurred, emphasizing that the Court’s opinion did not preclude denial of summary judgment on qualified immunity grounds on remand. Review the opinion, here.
Also on Monday, in orders issued from its January 6 Conference, the Court asked the U.S. Solicitor General to file briefs detailing the United State’s view in four cases: Rubin v. Iran, Bank Melli v. Bennett, Fenkell v. Alliance Holdings, and Bulk Juliana v. World Fuel Services. Two cases, Rubin and Bank Melli, involve lawsuits against the Islamic Republic of Iran and the Foreign Sovereign Immunities Act. Fenkell addresses the Employee Retirement Income Security Act of 1974. And Bulk Juliana discusses maritime-law. Read more about Monday’s orders on SCOTUSblog.
And on Monday, the Court heard argument in two cases: Nelson v. Colorado and Lewis v. Clarke. Nelson involves a challenge to Colorado’s Exoneration Act, which requires the state to return fees and other payments made by criminal defendants if their convictions are reversed or overturned — but only if the defendants establish their innocence by clear and convincing evidence. Colorado faced very skeptical justices, who appeared to believe that return of such payments should be routine without any special showing. USA Today breaks down Monday’s arguments in front of the Court. In Lewis, the Court addresses sovereign immunity of an Indian tribe. Todd Henderson of SCOTUSblog analyzes the arguments in front of the Court, notes how complex they are, and expresses doubt that the 8-member Court will issue a sweeping ruling.
On Tuesday, the Court heard Expressions Hair Design v. Schneiderman and Goodyear Tire & Rubber Co. v. Haeger. Expressions Hair Design evaluates at the constitutionality of no-surcharge laws and the difference between paying in cash versus paying with a credit card. The Washington Post’s Robert Barnes discusses the role the First Amendment plays in this case.
Finally, on Wednesday, the Court heard Endrew F. v. Douglas City School District involving the Individuals with Disabilities Act and what “appropriate” public education children are entitled to. In her latest Amicus podcast titled “And Then There Were Eight,” Slate’s Dahlia Lithwick speaks with Endrew F.’s lawyer about the case.