The first four are today’s certiorari grants:
Issue : Whether Section 2(a) of the Lanham Act’s prohibition on the federal registration of “immoral” or “scandalous” marks is facially invalid under the free speech clause of the First Amendment.
My expectation is that the Supreme Court will strike down the Lanham Act provision at issue. As it clearly and obviously should.
Issue : Whether the U.S. Court of Appeals for the 9th Circuit correctly held, in express disagreement with five other courts of appeals, that Section 14(e) of the Securities Exchange Act of 1934 supports an inferred private right of action based on the negligent misstatement or omission made in connection with a tender offer.
I believe the 9th Circuit will likely be overturned and I believe that is most likely the correct ruling.
Issue : Whether, under the Bankruptcy Code, a creditor’s good-faith belief that the discharge injunction does not apply precludes a finding of civil contempt.
I will skip on this one.
Issue : Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague.
Really hard to say how the Supreme Court will come down this, yet another vagueness case in criminal law.
The last two cases are appeals of right, with the Supreme Court postponing the question of jurisdiction to hearing the cases on the merits.
Issues : (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
This is the North Carolina gerrymandering case, I will briefly comment on the Maryland case just below.
Issues : In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
Two gerrymandering cases, Republicans the perpetrators/Democrats the victims in North Carolina, Democrats the perpetrators/Republicans the victims in Maryland.
My current expectation is that the Supreme Court will ultimately remand both these cases to the respective District Courts, with orders to dismiss the cases as a non-justifiable political question. The main problem is that the Supreme Court has simply not found any workable standard by which a court may consistently judge a political map and determine whether it is an unconstitutional political gerrymander. Standards exist to measure racial gerrymandering, but no acceptable and consistent formula has been found to judge political gerrymanders
The Supreme Court may simply order courts to keep hands off, until a consistent formula for judging political gerrymanders is discovered.
The Supreme Court returns for the January sitting on Monday, January 7.
