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Chambers Appellate Overview 2018 

by Sidley Austin LLP

Litigants, lawyers, and legal commentators alike are watching the Supreme Court with bated breath. On the first Monday in October 2017, the Justices returned from their annual summer recess and began grappling with a wide range of exceptionally important legal issues. In just the first two weeks of the term, the Court heard arguments in at least three “blockbuster” cases. One of those cases, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111, pits allegations of unlawful sexual-orientation discrimination against First Amendment values of free speech and free exercise of religion. Another, Epic Systems Corporation v. Lewis, No. 16-285, concerns the enforceability of arbitration agreements that prevent employees from collectively pursuing work-related claims. And perhaps the most politically charged case of the term, Gill v. Whitford, No. 16-1161, asks the Court to develop the judicial standards for assessing claims of unlawful partisan gerrymandering.

Some of the other prominent cases that will be decided this term include:

Carpenter v. United States, No. 16-402, presenting the question of whether the warrantless acquisition of cell-site location data, over 127 days, violates the Fourth Amendment.

Husted v. A. Philip Randolph Institute, No. 16-980, presenting the question of whether Ohio’s process for maintaining voter-registration lists, which is partly based on voter inactivity, violates the National Voter Registration Act.

National Institute of Family and Life Advocates v. Becerra, No. 16-1140, presenting the question of whether family-planning disclosures required by the California Reproductive FACT Act violate the Free Speech Clause.

Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466, presenting the question whether public-sector “agency shop” arrangements violate the First Amendment.

Lucia v. Securities and Exchange Commission, No. 17-130, presenting the question of whether Securities and Exchange Commission administrative law judges are Officers of the United States under the Appointments Clause.

Trump v. Hawaii, No. 17-965, presenting the question of whether Presidential Proclamation No. 9645, which bans immigration from several Muslim-majority countries, violates the Immigration and Nationality Act and the Establishment Clause.

Despite the prevalence of these high-profile cases, the Court has worked through its docket at a slower-than-usual pace. According to data compiled by Empirical SCOTUS, the Court was on course to issue “the fewest signed opinions by March 27 for any term since Chief Justice John Roberts was confirmed.” And by the end of the March sitting, two-thirds of the way through the term, the Court had issued only 17 opinions in argued cases. Other metrics confirm that the Court has taken a measured approach this term. Plenary review with oral argument is ordinarily granted in roughly 80 cases per year. But by the end of October Term 2017, the Court will have heard argument in just 63 cases—one of the lowest totals in recent memory.

With the emergence of Justice Gorsuch, the Court is no longer short-staffed. During his first full term, Justice Gorsuch has thus far authored three majority opinions. See Murphy v. Smith, No. 16-1067; SAS Institute Inc. v. Iancu, No. 16-969; Texas v. New Mexico, No. 141, Orig. Hints of Justice Gorsuch’s judicial philosophy emerged in Artis v. District of Columbia, No. 16-460, where, dissenting, he implored the majority to consider the “original reasons” and “rich common law . . . tradition” behind a statutory tolling provision. Justice Gorsuch wrote or joined two notable opinions relating to orders, which signaled his hostility toward judicial deference to administrative agencies. See Scenic Am., Inc., v. Department of Transportation, No. 16-739 (Gorsuch, J., statement respecting the denial of certiorari) (questioning whether deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an agency’s interpretation of contractual terms); see also Garco Constr., Inc. v. Speer, No. 17-225 (Thomas, J., dissenting from the denial of certiorari, joined by Gorsuch, J.) (encouraging the Court to overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)).

Although there is still much to anticipate over the last two months of this term, the Court has already issued opinions in several significant cases, including:

Jennings v. Rodriguez, No. 15-1204, holding that the Ninth Circuit misapplied the canon of constitutional avoidance in concluding that certain immigration detention statutes must be read to require periodic bond hearings.

Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439, holding that the Securities Litigation Uniform Standards Act of 1998 did not strip state courts of jurisdiction to adjudicate class actions alleging only violations of the Securities Act of 1933 or authorize removing such actions from state court.

Sessions v. Dimaya, No. 15-1498, holding that 18 U.S.C. §16(b), which defines “crime of violence” for purposes of the Immigration and Nationality Act’s removal provisions, is unconstitutionally vague.

Class v. United States, No. 16-424, holding that a guilty plea, alone, does not bar a federal criminal defendant from challenging the constitutionality of the statute of conviction.

Jesner v. Arab Bank, PLC, No. 16-499, holding that foreign corporations may not be sued under the Alien Tort Statute.

Hall v. Hall, No. 16-1150, holding that when one of several cases consolidated under Federal Rule of Civil Procedure 42(a) is finally decided, that decision confers an immediate right to appeal.

Digital Realty Trust, Inc. v. Somers, No. 16-1276, holding that the anti-retaliation provision of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act does not extend to an individual who fails to report a violation to the Securities and Exchange Commission.

Nonetheless, the Court has preserved some bandwidth for a handful of important intellectual property issues. For example, in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712, the Court held that inter partes review—an adversarial proceeding conducted by the Patent Trial and Appeal Board—does not violate the Seventh Amendment. And in another case concerning the inter partes review process, SAS Institute Inc. v. Iancu, No. 16-969, the Court held that, consistent with statutory directives, the Board must decide the patentability of all claims that the petitioner has challenged.

The Court has also decided a few consequential bankruptcy cases this term. For instance, in U.S. Bank National Association v. Village at Lakeridge, LLC, No. 15-1509, the Court held that a Bankruptcy Court’s determination of non-statutory “insider status” must be reviewed for clear error, rather than de novo. And in Merit Management Group, LP v. FTI Consulting, No. 16-784, the Court held that the Bankruptcy Code’s “securities safe harbor” provision does not prohibit courts from avoiding fraudulent transfers, even if those transfers pass through intermediaries acting as securities-clearing agencies.

All in all, the Court will have issued highly anticipated opinions in an array of important cases this term. With a remarkable comeback from a historic vacancy and subsequent period of inertia, the Court is back to the business of deciding cases that profoundly impact American life—touching on issues like sexual-orientation discrimination, abortion, voting rights, immigration, digital privacy, workers’ rights, religious liberties, and more. For good reason, then, Justice Ginsburg has said that October Term 2017 will prove to be “momentous.”