Supreme Court Term Coming to a Close (sort of)

by: tmess2

Thu Jun 14, 2012 at 20:22:42 PM EDT

Today, in a meeting room in the Supreme Court, a key decision was made.  What was that decision?  We will not know until Monday.

When the Supreme Court is in session, they hold a private meeting (referred to as the conference) once a week.  For most of the term, that meeting is on Friday.  During the weeks after the last oral argument session, that meeting is on Thursday.  The decisions reached during that conference are then issuesd as a formal order on the following Monday.

Today's conference is one of the last four conferences of the term.  For all intents and purposes, however, it is the next to last regular conference.  Next week will be the last regular conference.  The week after that is the so-called "clean-up" conference which consists primarily of sending back to the lower courts cases that the Supreme Court has held off deciding because they are related to pending cases.  As the remainder of the opinions from this term's arguments are released over the next two weeks, those cases can be sent back to the lower courts for the lower courts to apply the new opinions.  Then in September, the Court will hold its "long" conference at which it decides all the petitions that it gets over the summer.  While the absolute number of cases that the Supreme Court sets for argument tends to be highest at the long conference, that number tends to be small as a percent of the petitions submitted.

The key case at this week's conference is American Tradition Partnership v. Bullock a/k/a Son of Citizens United.  In this case, the Montana Supreme Court found a factual basis in Montana history supporting a compelling interest in preventing corruption in government by banning corporate political spending.  The Supreme Court has several options.  The option which the corporation wants is what is called summary reversal in which the Supreme Court will issue an opinin without oral argument reversing the lower court for blatantly disregarding binding precedent.  Many outside groups would like the court to actually take the case and consider discarding Citizens United (not likely this quickly).  My hunch says that the court might just try to push this case down the road until after the election by "Calling for the Views of the Solicitor General" -- a request that the US file an amicus brief on whether the case should be taken.  That would give cover to the Supreme Court not deciding the case immediately (as they already have enough hot potatoes on their plates). 

Besides Bullock, there are a pair of cases -- decided in opposite manners by the lower court -- involving the role of courts in resolving disputes over the ownership of church property when two different groups within the church claim to be the proper owners under the rules of that religion.

Finally, about thirteen-fifteen opinions remain to be issued in cases argued this term (including two argued in December).  Besides the two biggies of health care and the Arizona immigration law, the remaining cases are also likely to be closely divided.  They are (in order of argument):

1) First American Financial -- whether the federal law authorizing a law suit for improper fee splitting in mortgage service is valid when the fee splitting does not impact the total fee charged.

2)  Williams -- Another Confrontation Clause case -- this time involving whether lab personnel who conduct preliminary tests on evidence have to be called as witnesses.

3) Knox -- Must a state give closed-shop public union employees notice of their right to opt out of paying the portion of the union dues which go toward political expenditures.

4) Fox -- Constitutionality of FCC indecency standards

5) Alvarez -- Constituionality of Stolen Valor Act (falsely claiming to be recipient of military honors)

6) Southern Union -- Whether a criteria that increases the potential fine which a corporation must pay is an element of the offense that must be proven beyond a reasonable doubt to a jury.

7) Miller & Hobbs -- Companion cases on whether it is permissible to sentence a juvenile to life without parole for murder

8) Health Care cases

9) Christopher -- Application of Fair Labor Standards to Pharmacy Reps and equivalent employees

10) Dorsey & Hill -- Companion cases on whether change in the weights of crack cocaine for various drug offenses shoujld be applied retroactively (weights were increased to reduce disparity between crack and powder cocaine)

11) Ramah Navajo -- Resolving a conflict in the statute governing federal reimbursement for tribal education expenses -- one provision appears to require reimbursement of all expenditures but another caps the total appropriations to the Department of Interior

12) Patchak -- Question of soverign immunity related to tribal lands held in trust by the US.

13) Arizona Immigration case

 Of course, at this time of the year, especially on the older cases, the opinions are more likely to be 6-3 or 5-4 and in some of the cases will feature weird splits in which no opinion has 5 votes or in which different opinions have 5 votes on different issues.  I would expect 3 or 4 on Monday, another 3 or 4 next Thursday with the remaining coming out on the 25th and 26th.