Conference Report: January 12, 2018 Conference

At its Conference on January 12, the Supreme Court announced that it would hear twelve new cases, including an important Texas voting right case and a potentially significant case about whether states can tax their residents’ purchases from out-of-state vendors.

In Abbott v. Perez, the Court agreed to hear a pair of appeals from the decisions of a three-judge district court to invalidate Texas’s congressional districts. (Three-judge district courts are convened in cases involving constitutional challenges to redistricting plans. Their decisions are appealed directly to the Supreme Court, which does not have discretion to turn them away, although it can summarily affirm or reverse without hearing argument or even issuing an opinion. More information on three-judge district courts is available here.) In Abbott, the lower court concluded that Texas’s redistricting plan was intentionally racially discriminatory, and the Court imposed an injunction demanding an immediate legislative session to redraw the districts.. Amy Howe of SCOTUSblog notes that these grants are unsurprising given the Court’s decision earlier this Term to stay the district court’s injunction.  Redistricting issues are a hot button issue for the Court this term. The Justices have already heard arguments in the Wisconsin partisan redistricting case, Gill v. Whitford and have granted a Maryland redistricting case, Benisek v. Lamone.  And Justin Levitt at the Election Law Blog has the latest on partisan redistricting litigation in North Carolina, where different courts have struck down both the state legislative and congressional maps, although the Supreme Court this week stayed the order to redraw maps

South Dakota v. Wayfair, the Court agreed to consider taxation of online sales. In 1991, in a case called Quill Corp. v. North Dakota, the Court significantly limited the circumstances under which a retailer that is not “physically present” in a state can be required to collect state sales taxes. Since 1991, of course, online commerce has led to a dramatic increase in interstate retail purchases, and many believe that Quill is crippling state treasuries. In the Wayfair case, South Dakota asks the Court to abrogate Quill. As Tax Law Professor Blog reports, thirty-seven tax law professors signed onto an amicus brief urging the Court to take the case and overrule Quill.  Above the Law believes that “[w]e need this case. Our polity needs this case. This case is going to put money back in the hands of state governments that are starved for cash.”

The Court also agreed to hear Washington v. United States, where it will examine a deal that the federal government made with Northwest Indian tribes that they were guaranteed a fair share of fish, which mean that they would get 50% of each salmon run, or less if their needs would be met by a smaller amount. The Court is being asked to answer three questions related to this case:

  1. Whether the right of taking fish meant that the number of fish allocated to the tribes always had to be enough to provide a moderate living;
  2. Whether the district court erred in dismissing the state of Washington’s equitable defenses against the government (asking the court to excuse their actions because the government’s actions were unjust)  when these treaties were signed in the 1850s, told Washington to make salmon culverts in a specific way, and then claimed that these designs violated the treaties previously signed; and
  3. Whether, in requiring Washington to replace hundreds of salmon culverts (costing billions of dollars) that would have no effect on the salmon, the district court violated principles of federalism and comity. Culverts are large pipes that let streams pass beneath roads while blocking salmon trying to migrate, and fixing the ones in dispute in Washington is reportedly going to increase the length of salmon habitat by hundreds of miles and ultimately result in more salmon.

Also on Friday, the Court granted Chavez-Meza v. United States, which looks at proportional sentence reductions under 18 U.S.C. §3582(c)(2). The question in the case is whether a district court must provide an explanation – when the reasons are not obvious from the record – for its decision in cases where it does not grant proportional sentence reduction; or, can the court issue its decision without explanation so long as it “is issued on a preprinted form order containing boilerplate language that the court has ‘tak[en] into account the policy statement set forth in 18 U.S.S.G. §1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.’” The Court likely took this case to resolve the circuit split on the issue.

In another interesting case from its Friday order list, the Court agreed to hear arguments relating to the Mandatory Victims Restitution Act (MVRA) in Lagos v. United States. The MVRA requires that courts order the defendant to reimburse their victim for expenses relating to attending proceedings related to the offense, such as lost income, travel expenses, and child care. It applies to a variety of federal crimes, such as property offenses, fraud, and some violent crimes. The MVRA is a tool that allows victims to recover for the cost of cooperating with the investigation and prosecution In this case, the Court must decide whether this also covers expenses neither required nor requested by the government, and that were not incurred because of some official government action but for the victim’s own purposes. The defendant-petitioner in this case pled guilty to five counts of wire fraud and one count of conspiracy to commit wire fraud, admitting to misleading General Electric Capital Corporation (GECC) in dealings having to do with revolving loans. In addition to resulting in substantial costs associated with GECC’s internal investigations, the fraud eventually caused Lagos’s companies to file for bankruptcy. At issue in this case is the legal basis for the expenses incurred by GECC as a result of their internal investigation into the fraud.

Summaries of the remaining cases granted on January 12 can be found on SCOTUSblog.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was edited by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

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