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.
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- 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.
