Supreme Court convenes on Monday for the October sitting of the October 2018 term, 5 grants from the Long Conference

The Supreme Court held its Long Conference on Monday, September 24th and released 5 new grants today, which I have listed at the bottom of this post.

The highest profile case of the October sitting is Madison v Alabama, to be argued on Tuesday, October 2.

Madison v. Alabama, No. 17-7505 [Arg: 10.2.2018]

Issue(s): (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman , a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

This could end up as a 4 to 4 tie, which would uphold his death sentence as the State of Alabama prevailed at the 11th Circuit. The hopes of the defense were deflated when Kennedy left the court. If Kennedy was on the court, the defense has a plausible chance. Without Kennedy, the defense has zero chance. I think this will end as a four to four tie. While it would uphold the defendant’s sentence, it would create no national precedent.

(Note to Mods: Below content as well as the Madison v Alabama summary above is available under the Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. Required attribution is given to Scotusblog.)

  • Thacker v. Tennessee Valley Authority : (1) Whether the U.S. Court of Appeals for the 11th Circuit erred by using a “discretionary-function exception” derived from the Federal Tort Claims Act, from which the Supreme Court generally has declined to borrow rules, instead of the test set forth in Federal Housing Authority v. Burr when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority), to immunize the Tennessee Valley Authority from the plaintiffs’ claims; and (2) whether the U.S. Court of Appeals for the 11th Circuit correctly applied the discretionary-function test, in any case; and whether the lower court correctly held that safely raising a downed power line from the Tennessee River constitutes the sort of “policy”-laden discretionary work that this exception was designed to immunize from suit.
  • Home Depot U.S.A. Inc. v. Jackson : (1) Whether, under the Class Action Fairness Act – which permits “any defendant” in a state-court class action to remove the action to federal court if it satisfies certain jurisdictional requirements – an original defendant to a class-action claim that was originally asserted as a counterclaim against a co-defendant can remove the class action to federal court if it otherwise satisfies the jurisdictional requirements of the Class Action Fairness Act; and (2) whether the Supreme Court’s holding in Shamrock Oil & Gas Co. v. Sheets — that an original plaintiff may not remove a counterclaim against it — extends to third-party counterclaim defendants. [ Disclosure : Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in this case.]
  • Azar v. Allina Health Services : Whether 42 U.S.C. § 1395hh(a)(2) or § 1395hh(a)(4) required the Department of Health and Human Services to conduct notice-and-comment rulemaking before providing the challenged instructions to a Medicare administrative contractor making initial determinations of payments due under Medicare.
  • Rimini Street Inc. v. Oracle USA Inc. : Whether the Copyright Act’s allowance of “full costs,” 17 U.S.C. § 505, to a prevailing party is limited to taxable costs under 28 U.S.C. §§ 1920 and 1821, as the U.S. Courts of Appeals for the 8th and 11th Circuits have held, or whether the Act also authorizes non-taxable costs, as the U.S. Court of Appeals for the 9th Circuit held.
  • Tennessee Wine & Spirits Retailers Association v. Byrd : Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entitles that have resided in-state for a specified time.

The October sitting starts tomorrow morning, below are the cases up for oral argument.

(Note to Mods: The following quoted material is available under the Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. Attribution is given to Scotusblog.)

October Sitting

Mount Lemmon Fire District v. Guido, No. 17-587 [Arg: 10.1.2018]

Issue(s): Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.

Weyerhaeuser Company v. U.S. Fish and Wildlife Service, No. 17-71 [Arg: 10.1.2018]

Issue(s): (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Gundy v. U.S., No. 17-6086 [Arg: 10.2.2018]

Issue(s): Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Madison v. Alabama, No. 17-7505 [Arg: 10.2.2018]

Issue(s): (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman , a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Knick v. Township of Scott, Pennsylvania, No. 17-647 [Arg: 10.3.2018]

Issue(s): (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County ’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County , as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

New Prime Inc. v. Oliveira, No. 17-340 [Arg: 10.3.2018]

Issue(s): (1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

Stokeling v. U.S., No. 17-5554 [Arg: 10.9.2018]

Issue(s): Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

U.S. v. Sims, No. 17-766 [Arg: 10.9.2018]

Issue(s): Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

U.S. v. Stitt, No. 17-765 [Arg: 10.9.2018]

Issue(s): Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Air and Liquid Systems Corp. v. Devries, No. 17-1104 [Arg: 10.10.2018]

Issue(s): Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

Nielsen v. Preap, No. 16-1363 [Arg: 10.10.2018]

Issue(s): Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226© if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

I would note that with Justice Kavanaugh now on the Supreme Court, he can choose to participate in the cases that were argued the opening week, even though he did not participate in oral arguments. Nor do these cases need to be re-argued with him present.

This could be significant, particularly in Madison v Alabama, should Justice Roberts stay with the conservatives on this case, because it would allow for a 5 to 4 ruling in favor of Alabama, which would not have been likely with an empty seat.

The cases to be argued this upcoming week are listed above, though none is high profile.

Nothing all that high profile scheduled for the November sitting either, but some high profile cases could be heard in December, though the calendar for that sitting has not yet been released.