(AP Photo/J. Scott Applewhite, File)

On Monday November 26th, the Supreme Court reconvenes for its December sitting.  They are scheduled to hear ten cases in this sitting which ends on December 5th.  The following is a synopsis of the cases to be heard.

Apple, Inc. vs. Pepper

This is an antitrust case out of the Ninth Circuit.  At issue is whether the case can even go forward and centers around iPhone apps.  The plaintiffs in the case allege that Apple is violating the law by requiring users to buy the apps through the Apple App Store at inflated prices.  Apple counters they are charging the price set by the app developer.  The original case was thrown out by the District Court, but the Ninth Circuit reversed and Apple appealed to the Supreme Court.  This is a complicated case to decide, under antitrust law, who is responsible for damages with the awards in this case that could cost Apple billions.  If the Court rules against Apple, the case will simply be remanded to the lower courts and the antitrust suit would continue.

Nieves vs. Bartlett

The Roberts Court has been described as possibly one of the strongest courts when it comes to free speech in history.  They are also known for giving discretion to law enforcement, especially in cases of lawsuits.  These two concepts collide here.  Bartlett was arrested by Alaska state troopers and charged with disorderly conduct and resisting arrest, charges that were ultimately dismissed.  He contends that his arrest was predicated upon his refusal to answer their questions, and his objections to the troopers questioning a minor without a guardian present.  At issue is whether there was probable cause to make the arrest in the first place.  If there was that lack of probable cause, then Bartlett can proceed with his lawsuit against the Alaska state troopers for retaliatory arrest.  The Court could have answered this question more directly last term in a somewhat similar case, but that involved a retaliatory arrest at the insistence of municipal officials, not a law enforcement agency.

Nutraceutical, Inc. vs. Lambert

A case sure to be as exciting as paint drying, the Court is asked about appeals court certification for class action lawsuits and whether certain Rules of Civil Procedure must be rigidly adhered to or not.

Carpenter vs. Murphy

The Supreme Court is asked to determine whether land given to the Creek nation in eastern Oklahoma is a reservation or not for purposes of a criminal complaint.  Murphy allegedly committed murder in the disputed area which would put his prosecution under state jurisdiction.  A ruling for Murphy could possibly shift the responsibility for law enforcement to the federal government for about half of the territory of Oklahoma, including Tulsa.  It would also mean that state prosecutions for crimes committed since 1907- the year Oklahoma became a state and the federal government ceded law enforcement responsibilities to the state- were invalid.

Dawson vs. Steager

A case out of West Virginia whether the state can exempt from state taxation state law enforcement personnel, but not members of the US Marshall Service who are residents of West Virginia.

Lorenzo vs. Securities and Exchange Commission

Certain elements have to be met under Supreme Court rules for a misstatement claim of fraud before the Securities and Exchange Commission.  At issue here is whether when a party fails to meet those elements, can they then repackage them to bring a fraudulent scheme charge.

Helsinn Healthcare vs. TEVA Pharmaceuticals USA

This is a patent case out of the Federal Circuit.  Again, paint drying may be more exciting than this one.

Beistek vs. Berryhill

This case involves expert testimony in social security benefit cases. Specifically, can a plaintiff in such cases prevail on their claim if that expert fails to provide the underlying data to the applicant upon request.

Gamble vs. United States

The Supreme Court is asked to reverse a doctrine known as “separate sovereigns” when it comes to the Fifth Amendment and the Double Jeopardy Clause.  For example, two states have been allowed to prosecute and convict the same person for a crime that spanned their borders.  Further, often a state and the federal government’s jurisdiction will overlap.  In the Rodney King trial of police officers for alleged civil rights violations, the officers were acquitted of the charges and then tried in federal court on the same charges.  In effect, dual sovereigns-two states, or a state and the federal government- can often get two cracks at convicting someone for the same crime.  The Constitutional text is quite blunt: “no person shall…be subject for the same offense to be twice put in jeopardy of life or limb.”  If you ever wondered why a person can be tried by both the state and the feds, the reason is not the Fifth Amendment, but a Supreme Court doctrine.  In effect, the Court is being asked to either overrule the doctrine, or reign it in with some guidance.

Timbs vs. Indiana

As most readers are aware, the Bill of Rights was ratified as a check on the powers of the federal government.  Over the years, through a doctrine known as incorporation, most of the first eight amendments have been applied to state actions also.  However, one that has not been incorporated is the Eighth Amendment’s prohibition against “excessive fines.”  In this case- which involves civil asset forfeiture- a young man named Tyson Timbs was convicted of selling four grams of heroin.  The state sought forfeiture of his $42,000 vehicle since it was used to transport the drug.  The maximum fine for possession or distributing four grams of heroin in Indiana is $10,000.  The District Court determined that an asset forfeiture equal to four times the maximum fine is “excessive” and violates the 8th Amendment.  The Indiana supreme court eventually disagreed and stated that this aspect of the Eighth Amendment was never incorporated against the states by the Supreme Court, nor by legislative action.

This is a direct challenge by Timbs to incorporate this aspect of the Eighth Amendment against the states.  If he succeeds, only two aspects of the Bill of Rights will not have been incorporated against the states: the Grand Jury Clause (which was addressed in a Supreme Court case) and the Third Amendment’s prohibition against the quartering of soldiers during times of peace (of which there has never been a Supreme Court case).  The notion of incorporation was justified under the non-denial of due process clause of the 14th Amendment.

Several writers here at Restate, me included, have pointed out how states and the federal government have often abused civil asset forfeiture.  It has led to, in some jurisdictions, a practice known as “policing for profit.”  While it is certainly understandable that convicted criminals should not be entitled to the fruits of their crimes, in many cases civil asset forfeiture attaches BEFORE a criminal conviction.  In some cases, charges are dropped, but the assets retained.  It is a system that has certainly been abused in the past.  Making the forfeiture commensurate to the crime certainly makes some sense in this particular case.  Where the Court may get around this issue is whether asset forfeiture constitutes a “fine” in the first place.  Since the Roberts Court loves to avoid controversy (and incorporation of any kind is verboten to Constitutional textualists and originalists), this just may be his way out of confronting the issue through a narrow reading.

This writer will be back in late December when the oral argument schedule is released for the January sitting of the Supreme Court.