Order list for 11/2/18.
The Supreme Court granted six new cases, though two are consolidated for oral arguments and decision. Additionally, the court ordered re-argument in an additional case.
The most interesting are the two consolidated cases, both dealing with World War I memorials shaped like a cross on public land. The Supreme Court could very well use these cases as a vehicle for a major reshaping of establishment clause jurisprudence that would likely see the end of the Lemon test and create a much tougher standard plaintiffs to prove an establishment clause violation, at the same time expanding the scope of the free exercise clause.
Additionally, the following case has been restored to the calendar for re-argument, having been argued on October 3, 2018. Justice Kavanaugh will participate in the re-argument and decision of this case.
Docket for 17-647 (Link to Supreme Court docket #17-647.)
Knick v. Township of Scott, Pennsylvania - SCOTUSblog (Scotusblog record)
Today’s order for re-argument:
This case is restored to the calendar for re-argument. The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner’s alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner’s brief on the merits. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.
Today’s new grants are listed below:
(Note to Mods: Following quoted material available under the Attribution-NonCommercial-NoDerivs 3.0 United States (CC BY-NC-ND 3.0 US) license. Attribution is given to Scotusblog.)
The American Legion v. American Humanist Association, No. 17-1717
Issue(s): (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman , Van Orden v. Perry , Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
Mont v. U.S., No. 17-8995
Issue(s): Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.
Flowers v. Mississippi, No. 17-9572
Issue(s): Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky in this case.
Maryland-National Capital Park and Planning Commission v. American Humanist Association, No. 18-18
Issue(s): Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.
Smith v. Berryhill, No. 17-1606
Issue(s): Whether the decision of the Appeals Council—the administrative body that hears a claimant’s appeal of an adverse decision of an administrative law judge regarding a disability benefit claim—to reject a disability claim on the ground that the claimant’s appeal was untimely is a “final decision” subject to judicial review under Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g).
Gray v. Wilkie, No. 17-1679
Issue(s): Whether the U.S. Court of Appeals for the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting the Department of Veteran Affairs’ definitive interpretation of its own regulation, even if the VA chooses to promulgate that rule through its adjudication manual.
