New Cases for the Court: The September 2017 Long Conference

The Supreme Court has just announced that it will hear eleven new cases in the Term that begins on Monday. Between the end of June and the beginning of September every year, the Supreme Court is on recess. Over the summer, many of the Justices travel or teach. New law clerks begin work as well, generally on a staggered schedule that overlaps with outgoing clerks. Petitions for certiorari (or “cert petitions”) continue to be filed throughout the summer, however, and the law clerks help the Justices review them. Then, at the end of September, in what is often called “the Long Conference,” the Justices meet to discuss the backlog of cert petitions. Generally, more cert petitions are granted as a result of the Long Conference than any other Conference throughout the year.

This year was no exception. The Supreme Court held its Long Conference on Monday, September 25, and on Thursday, September 28, it released a list of orders from that Conference, including the new cert grants. Specifically, the Supreme Court granted certiorari in 11 cases, although three of those cases (Dalmazzi v. United States, Cox v. United States, Ortiz v. United States) present the same issue and have been consolidated for argument purposes.

(1) Janus v. American Federation of State, County, and Municipal Employees, Council 31 is the most high-profile of the cases granted on Monday. Janus marks the third time in recent years that right-to-work advocates have attempted to persuade the Court to overrule a 1977 case called Abood v. Detroit Bd. of Education. Abood held that the First Amendment allows a public-sector union to collect “fair share fees” from employees in a collective bargaining unit even if those employees chose not to become union members. Fair share fees reimburse a union for the work they do on behalf of the non-member employees.

In Harris v. Quinn in 2014, the Supreme Court considered a First Amendment challenge to fair share fees that personal care assistants to disabled individuals were required to pay the union. Although these assistants were paid by the State of Illinois, in some regards, the disabled individuals functioned as their employees. Holding that because these personal care assistants were not “full fledged employees,” the Court declined to apply Abood to them, meaning that they did not need to pay the fees, and the five-Justice majority expressed great skepticism about that case. It did not, however, overrule Abood.

The next chapter in this saga came in Friedrichs v. California Teachers Association, which squarely presented the question as to whether the Court should overrule Abood. After oral argument but before any opinion issued, however, Justice Scalia unexpectedly died. The Court subsequently affirmed the lower court (meaning that Abood remained intact) by a 4-4 vote. Commentators on both the right and the left agree that this time, the Court will actually reach the Abood issue and that the remaining four Justices from the Harris majority (Chief Justice Roberts and Justices Alito, Kennedy, and Thomas) will be joined by Justice Gorsuch to give the right-to-work forces the victory they have sought.

(2) In McCoy v. Louisiana, the Court will consider the rights of a death row inmate who was convicted for the murder of his estranged wife’s son, mother, and stepfather. McCoy’s lawyer tried to persuade him to take a plea deal, which McCoy refused. At trial, the lawyer conceded his guilt during the opening statement against McCoy’s clear intention to maintain his innocence. (The lawyer believed that the plea would make it possible to avoid the death penalty.) McCoy attempted to fire the lawyer and represent himself two days prior to trial but the judge denied his request. At trial, McCoy claimed the police were responsible for the murders and that the judge’s goal was to allow the lawyer to “throw away all aspects of my due process,” according to the ABA Journal. The lawyer attempted, but ultimately failed, to convince McCoy that the evidence against him was so strong that he should take a plea deal. Washington’s Top News reports that this case will determine “who is ultimately in charge of the case, the lawyer or his client, and whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes.”

(3)The Court also added two Fourth Amendment cases to its docket. The first is Collins v. Virginia. As Constitution Daily describes, the issue of Collins centers on the Fourth Amendment’s “automobile exception,” which the Court has previously held gives police officers the power to search a vehicle without a warrant if they have probable cause to believe it contains contraband. According to Cornell Law School’s Legal Information Institute, the exception could be invoked if, for example, the contraband is in plain sight and it is likely it and the vehicle will be gone by the time a warrant is issued. In Collins, the police saw a picture of what they believed to be a stolen motorcycle on Collins’s Facebook page. They then located the house where he was staying and found the motorcycle under a tarp near the house. Collins was then charged with receiving stolen property. He is arguing that the search was not covered by the exception and is unconstitutional. The Court will have to decide if the exception allows for a police officer to enter private property and search a vehicle there without a warrant.

(4) In its second Fourth Amendment case, Byrd v. United States, the Court will decide what privacy interests a driver of a rental car has when the driver was not authorized on the rental agreement. Terrance Byrd was driving his girlfriend’s rental car with her permission, when he was pulled over for a traffic violation in Pennsylvania. The police searched his car and found large amounts of heroin and body armor. Bryd was arrested and charged with possession of body armor by a felon and with possession with intent to distribute heroin. Byrd argued the police violated his Fourth Amendment protection against unreasonable search and seizure. Both the district court and the Court of Appeals for the Third Circuit disagreed, however, explaining that he had no reasonable expectation of privacy because he was not on the rental agreement. As Adam Liptak of the New York Times notes, however, the Third Circuit acknowledged that there is a circuit split among federal appeals courts as to “whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement.” The Court will address this question, though argument has yet to be scheduled in this case.

(5) The Court has also agreed to hear a Fifth Amendment case. In City of Hays, Kansas v. Vogt, Police officer Matthew Vogt, who worked for the City of Hays, applied for a position in a different cities. During the interview he stated that he had kept a knife given to him while he was an officer working for the City of Hays. According to Justia, he was offered the new job but only on the condition that he returned the knife to the Hays police department. He complied, but became the subject of a criminal investigation and lost the offer. The investigation led to two felony charges that were eventually dropped for lack of probable cause after a hearing. Vogt sued both cities and four individual police officers, arguing that the use of his earlier statements in the probable cause hearing violated his Fifth Amendment right against self-incrimination. The district court dismissed all of Vogt’s claims. The Tenth Circuit Court reversed the trial court’s dismissal as to the City of Hays, although it upheld the dismissal as to the other jurisdiction and the police officers. According to SCOTUSBlog, Justice Gorsuch, a former member of the 10th Circuit bench, has recused himself.

(6) In Encino Motorcars, LLC v. Navarro, the Court will revisit a case that it has reviewed before. Bill Chappell of NPR WVIK explains that the case “turns on the interpretation of labor and overtime laws as they apply to employees at car dealerships.” Navarro was a service advisor at a car dealership, and he is arguing he was protected by overtime laws, even though they do not apply to salesman or mechanics. According to Lynn White of The Federalist Society, service advisers were long considered exempt from the Fair Labor Standards Act’s overtime requirement. But in 2011 the Department of Labor (“DOL”) issued a rule stating that advisors are not exempt from overtime. The Supreme Court ruled that the DOL’s decision was “arbitrary and capricious,” and thus violated the Administrative Procedures Act. It ordered the Ninth Circuit to rule again without taking the DOL’s regulation into account. The Ninth Circuit has now ruled for a second time that service advisers are not exempt.

(7) In Rosales-Mireles v. United States, will address the standard for correcting plain error of a lower court and the application of a 1993 case, United States v. Olano. According to Amy Howe of SCOTUSblog, Rosales-Mireles pleaded guilty to reentering the United States illegally and was sentenced to 78 months in prison – an incorrect sentence calculation. Although the Fifth Circuit agreed that Rosales-Mireles sentence was incorrect, it refused to correct its error. The court argued that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Supreme Court is set to address this standard, which Rosales-Mireles argues is too high and too harsh.

(8) Finally, Dalmazzi v. United States, Cox v. United States, Ortiz v. United States (consolidated cases) all involve the propriety of a judge serving simultaneously on the United States Court of Military Commission Review and either the Army or Air Force Court of Criminal Appeals.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS co-director Carolyn Shapiro.


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