Conference Report: December 1 and 8 Conferences

Over the last two weeks, the Supreme Court has granted cert in eight new cases and has issued a number of rulings of note. First, on Friday, December 8, in a 5-4 order, the Court granted a stay of a discovery order in a case challenging the Trump Administration’s decision to end the DACA program — the program that grants deferred action for undocumented immigrants who arrived in the United States as children and who meet a number of other criteria. In the case, known in the Supreme Court as In re United States, the government sought a stay of a district court order requiring it to produce certain documents. The Supreme Court granted the the stay, pending resolution of a petition that the government filed, and it ordered any response to that petition to be filed by December 13. Justice Breyer wrote a 9-page dissent, in which he was joined by Justices Ginsburg, Sotomayor, and Kagan.

On December 4, the Court also issued stays in both of the pending travel ban appeals, allowing the current travel ban to go into effect. The Court also told the courts of appeals to render their “decision[s] with appropriate dispatch.” Justices Ginsburg and Sotomayor both noted dissents from these orders, although they did not write opinions. The Ninth Circuit heard oral argument in Hawaii v. Trump on December 6, and the Fourth Circuit heard oral argument on December 8.

On Friday, December 8, the Court announced that it would hear seven new cases. Most notable is a case called Benisek v. Lamone. Benisek involves a challenge to a partisan gerrymander in Maryland. The case that is similar, although not identical to, Gill v. Whitford, in which the Court heard argument in October (more about the case here). Perhaps significantly, one way the cases differ is in the party that controlled the redistricting: in Gill, Republicans controlled, while in Benisek, Democrats were in charge. As election law expert Rick Hasen explains, however, this decision to hear Benisek was a surprise, as most expected the Court simply to “hold” the case and then remand for consistency with whatever it decided in Gill. Adam Liptak of The New York Times has more here.

The Court also granted cert in Koons v. United States and Hughes v. United States. The cases raise similar issues related to sentencing reductions where the Sentencing Commission changes the Guidelines, but Hughes also asks a much more complex question about how to interpret Supreme Court decisions where there is no majority for any rationale — asking for a clarification of the 1977 decision in Marks v. United States. Scholarly commentary on this question from Ryan Williams of Boston College Law School is available here. And in China Agritech, Inc. v. Resh, the Court agreed to hear a case about whether the statute of limitations is tolled for potential class members when a putative class action is filed but no class is certified in situations where the those putative class members later wish to bring their own class action lawsuit. The Court has previously held, in American Pipe & Construction Co. v. Utah,  that such tolling applies where the class members want to file their own individual actions.

The other cases granted on December 8 included Upper Skagit Indian Tribe v, Lundgren, involving tribal sovereign immunity in a property dispute, United States v. Sanchez-Gomez, about appellate jurisdiction, Sveen v. Melin, about the scope of the Contract Clause.

And finally, on December 1, the Court announced that it would hear Salt River Project Agricultural Improvement and Power Dist. v. SolarCity Corp. Salt River is about whether interlocutory appeals are available from denials of immunity under the “state action” doctrine in antitrust law.

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