With interest in the recent election, my attentions were elsewhere other than the Supreme Court and the cases before it. To recap November to this point, the Court has heard oral argument in eight cases- 4 involving criminal matters and four involving civil matters. In the criminal matters, they must determine whether if a lawyer fails to advise a client about the deportation implications of a guilty plea bargain, does it rise to the level of “ineffective counsel?” The second criminal case asks whether a person can be held by police while they execute a valid search warrant. Third, they must decide the elements of conspiracy and finally whether when a judge erroneously advises a jury of the elements of a crime if that error precludes retrial on the charges under the Double Jeopardy Clause.

In the civil cases heard thus far in November, two involve the determination of class action status and the rights of members of that class. Another involved whether courts have any standing in a trademark violation case if the alleged offender agrees not to use that trademark in commerce. The final civil case asks whether losers in a credit reporting lawsuit are liable for prevailing plaintiff legal fees.

In the week after Thanksgiving, the Supreme Court will hear four cases. The first is FTC v. Phoebe Putney Health Care where the Court must decide whether the state of Georgia intended to displace competitors in the health care delivery system of a county and, if so, whether they are immune from federal antitrust laws if they do so. In Vance vs. Ball State University, the extent of the supervisor liability rule in harassment cases is again explored. In brief, the Court has held that supervisors who must enforce and have a say in the hiring and firing of employees are liable for cases where lower level managers violate workplace harassment laws. This case asks how far that liability extends. In US Airways vs. McCutcheon, the Court will decide how far lower courts can go on rewriting contractual language in cases of ERISA violations. ERISA is the federal law governing employee pension and benefit plans. And in Henderson vs. United States, the Court will hear arguments on which standard should be used when trial guidelines change- the standard in effect at the time of appeal, or the one when the original verdict or judgment was entered? As mentioned many times previously, this last case is before the Court since different Circuit Courts have interpreted it differently. When this happens, it is a recipe for almost certain Supreme Court action.

The Court will meet only the first week of December and hear five cases. In the Genesis Health Care case, the Court will decide whether any court can continue with a lawsuit if a plaintiff receives an offer from a defendant that satisfies all the claims of the plaintiff. They must determine whether receipt of that offer renders the lawsuit moot. At first glance, the case of Decker vs. Northwest Environmental Defense Center (NEDC)- which was merged with a similar case involving Georgia-Pacific against the NEDC- would look like a case to reign in the EPA. However, there are two issues as stake here. The first is whether a citizen can bypass judicial review under one law in order to challenge the validity of an EPA rule promulgated under the Clean Water Act. The second part asks whether storm water runoff from logging roads is “industrial discharge.” According to the EPA, it is not and is, therefore, not regulated. However, the Ninth Circuit Court of Appeals turned a blind eye towards that EPA determination and ruled that it is “industrial discharge.” Although not a case to reign in an activist EPA, this case will likely reign in an activist Ninth Circuit Court of Appeals.

In Sebelius vs. Auburn Regional Medical Center, the oral argument will likely invoke several yawns. This deals with the 180-day limit in filing appeals on final payment orders under Medicare. This case is suspiciously like the Lily Ledbetter case which DID NOT involve equal pay for women per se, but the statute of limitations for filing lawsuits. This case is just like that one, but involves Medicare payments. My best educated guess is that the Supreme Court will upold the time limits established by Congress, liberals will cry that the average Joe is having the court door shut in their faces, and Congress will change the law in an effort to be more “equitable” after about four months of debate. Except the “average Joe” in this case is a huge medical center.

In Los Angeles Flood Control District vs. (again) Northwest Environmental Defense Center, the Court must determine whether water from a portion of a navigable river that passes through manmade concrete channels to a lower portion of a navigable river is “discharge from an outfall” and therefore covered under the Clean Water Act thus allowing the EPA to regulate such structures. Here, the Ninth Circuit sided with LA against the environmentalists.

The final case to be heard before the Justices adjourn for the Christmas holiday is Chafin vs. Chafin. The Court must decide that when a minor child returns to their country of origin, should a lawsuit to determine custody in American courts cease, or should the case continue? This case has international treaty implications under the Child Abduction Treaty and the Hague Conventions. It also has implications regarding the extent and reach of American courts into foreign countries.

Between now and adjournment, the Supreme Court will have held or will hold three conferences where they will decide whether to accept cases pending before them. Thus far, their grants of review are behind the rates of previous years. Most importantly, they have yet to accept any of the many gay marriage cases before them on appeal. These include not only the constitutionality of the Defense of Marriage Act (DOMA), but also a case involving California’s Proposition 8. Although previously considered, they have held over the case for further consideration. To date, the number of briefs filed by both sides and by the Solicitor General, as well as the “friend of the Court” briefs, is staggering. There is a lot on the line here and apparently they want to make sure they take the right test case in this area.

Another important case is whether disparate impact should be considered in urban renewal projects that involves affordable housing for the poor. This case originates out of New Jersey and the Court is awaiting the brief requested from the Solicitor General.

Probably the biggest case, besides the Fisher affirmative action case out of Texas heard earlier in October, the Court has taken on is Shelby County, Alabama vs. Holder. This is a direct facial challenge to the validity of the pre-clearance requirements under the Voting Rights Act of 1965 (VRA). It has yet to be scheduled for argument. The implications are broad and important here. Specifically, Shelby County argues that this section of the VRA should be struck down since it holds certain states or areas of parts of states to a different standard than other political entities based upon racially discriminatory actions in the past. The Roberts Court has been looking for cases to challenge racial practices like affirmative action. In the case of the VRA, they fired a warning shot over the bow of Congress to amend this law or the way jurisdictions should be covered thus triggering the pre-clearance requirements. Although they will likely uphold the VRA, Section 5’s days may be numbered. As many may know, Section 5 is an powerful tool that has been used by Eric “Fast and Furious” Holder to strike down voter ID laws in Texas and South Carolina.