The U.S. Supreme Court October 2017-2018 Term Preview
The U.S. Supreme Court’s 2017-2018 term starts back up again on October 2, 2017. The Court is back to full strength once again and this is the first full term with the addition of Justice Neil Gorsuch. And it is shaping up to be an exciting one. With many interesting and important cases already on the Court’s calendar, and others potentially to be added in the coming months, here is a sneak peek into what is on the Supreme Court horizon.
The ABC’s of the Merits Cases: Arbitration, Betting, Cake, and More
The High Court already has some high-profile cases on its docket for the 2017-2018 term. Here are some cases the Court will consider that will be closely watched throughout the year.
Arbitration and NLRA: Will the Supreme Court Rein in the NLRB?
The National Labor Relations Board has been increasingly asserting control over how businesses institute policies and interact with employees. The Court will hear a series of cases about whether and to what extent certain arbitration agreements that include class action waivers can be used without violating the National Labor Relations Act. While important in its own right, a particularly interesting point about one of the cases is the fact that the Solicitor General, who normally advocates for the federal government at the Supreme Court, switched positions on this issue after cert was granted and filed a brief in support of the employer in the Murphy Oil case. The NLRB, however, is sticking to its position that the arbitration agreements in question violate federal law. This rare turn of events makes these cases all the more interesting.
These cases are set for oral argument in October and have been consolidated for a one hour argument: Ernst & Young LLP v. Morris; Epic Systems Corp. v. Lewis; NLRB v. Murphy Oil USA.
Federal Sports-Betting Ban and the Future of Federalism
The Court has agreed to hear a case involving whether Congress can tell the States what their own laws should be. This issue has come up before in other cases, and the Court has come down on different sides of the federalism coin. In this case—Christie v. NCAA—the issue involves the federal Professional and Amateur Sports Protection Act (PASPA), which prevents most states from legalizing gambling on sports. New Jersey passed a law that conflicts with PASPA and seems to acknowledge that it does. But New Jersey claims that the federal law violates the 10th Amendment, which prevents the federal government from commandeering the states to enforce federal law.
This case should be a fun one, because it involves not only an interesting topic—sports and gambling—but also the more academic and weighty issue of how the balance between the federal government and states’ rights should be struck.
Let Them Eat Cake: Public Accommodations v. Religious Freedom
This next case is the highly anticipated Masterpiece Cakeshop case that is sure to be a landmark decision, regardless of its outcome. Colorado’s own public accommodation law is front and center in this case, and the case will likely touch on issues like free speech, discrimination, public accommodation, and freedom of religion. This case has not yet been set for oral argument, and given its importance, it is likely a decision will be issued in true Supreme Court fashion at the end of the term. An interesting twist is that the Department of Justice just filed a brief in support of the baker and against the State of Colorado.
Appellate Jurisdiction and Extensions of Time
This last case is certainly less flashy than the previous cases we’ve discussed, but we couldn’t let this preview go by without touching on at least one appellate procedure case: Hamer v. Neighborhood Housing Services of Chicago. This case involves Federal Rule of Appellate Procedure 4(a)(5)(C). The question is whether the operation of this rule—which limits the time for extensions to file an appeal—can deprive someone of the chance to appeal. The federal courts of appeals are divided over this question. Can the rule operate as a jurisdictional bar, or is it merely a prudential consideration? The justices will weigh in this term.
Pending Petitions: Interesting Cases to Watch this Term
While there are a lot of high-profile cases already on the Court’s calendar, there are slots left to fill. And there are several petitions for certiorari pending that are sure to be watched. Here are a handful you might find interesting:
How Much Persecution is Enough? Xue v. Sessions
This case involves a Chinese national who was denied asylum after he fled to the U.S. after being persecuted for attending a house church. He has now petitioned the U.S. Supreme Court to weigh in on what standards are required in order to qualify for asylum for fear of religious persecution.
Federal Rules, Procedure and Practice: Bell v. McAdory & Scott v. Maryland State Dep’t of Labor
In our appeals and litigation blog, we often cover rulings of importance involving the rules of procedure. There are at least two cases currently vying for the Court’s cert grant in this category. The first, Bell v. McAdory, involves whether the denial of a motion under Fed. R. App. P. 4(a)(5)—which involves a motion for enlargement of time to file a notice of appeal—is a separately appealable final order. This case involves a similar issue to the Hamer case already on the Court’s docket in that it involves Rule 4(a)(5), but considers when rulings on motions for enlargement of time can be appealed, rather than whether the time limit in the rule is jurisdictional.
Another case, Scott v. Maryland State Dep’t of Labor, looks at a district court’s power under the Federal Rules of Civil Procedure. Specifically, this case involves Rule 4(m), the rule that requires a district court to dismiss a federal action if a defendant is not served within 90 days after a complaint is filed. Under the rule, a district court must extend this time limit for service if the plaintiff shows good cause for the failure. This case examines whether a district court has discretion to extend the time for service of process without a showing of good cause. The federal circuit courts of appeals are divided on this issue.
Free Speech and Abortion Access: the California “Reproductive FACT Act” Cases
There are also a host of free speech cases involving faith-based crisis pregnancy centers and their challenge to California’s law—the Reproductive FACT Act—that requires them to distribute information about abortions. These cases have it all: abortion, religion, free speech, and a circuit split to entice the Court. Will the Supreme Court take sides this term? The cases are: Livingwell Medical Clinic v. Becerra; National Institute of Family and Life Advocates v. Becerra; and A Woman’s Friend Pregnancy Resource Clinic v. Becerra.
This year’s Supreme Court term has no shortage of high-profile cases already on the docket, and more are sure to come. Telios Law will continue to monitor the happenings at the U.S. Supreme Court and provide updates as decisions relevant to our readers are handed down.
1 Amy Howe, Murphy Oil’s law: Solicitor General’s office reverses course in arbitration cases, supports employers, SCOTUSBLOG (Jun. 19, 2017, 7:12 AM), http://www.scotusblog.com/2017/06/murphy-oils-law-solicitor-generals-office-reverses-course-arbitration-cases-supports-employers/
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