A “momentous” U.S. Supreme Court term is underway, and a legal tsunami is heading toward the justices.
First, let’s catch up a bit. The new term began on the traditional first Monday in October—Oct. 2 to be exact. That day also marked the beginning of the October argument session, a two-week period in which the justices sit on the bench to hear cases they’ve agreed to consider.
There is a rhythm to the life of the Supreme Court which is rarely interrupted, not even by government shutdowns or blizzards.
How to follow the Supreme Court
The justices hear arguments two weeks of each month from October through April, and from Mondays through Wednesdays during those two-week sessions. The argument calendar is posted on the court’s website at www.supremecourt.gov.
The briefs that have been filed in the cases that will be argued can also be found on the court’s website, beginning Nov. 13. An argument session is the best time to visit the court to get a sense of its work and the justices’ personalities. But if you can’t get to the court to hear the arguments, transcripts are posted on the court website on the afternoon of the argument day, and both the transcripts and the audio are available on the website on Friday of each argument week.
The justices generally meet in a private conference each week to vote on argued cases and to review new petitions that they may add to their argument calendar. May and June are “quiet” months in which the justices write and issue the bulk of the term’s decisions.
Three cases to watch
Justice Ruth Bader Ginsburg predicted the “momentous” term because of some of the issues raised in cases that the justices will decide. Two of those cases were in the court’s October argument session and appeared to divide the justices.
First, the business community has been very successful in winning court approval—and just last week congressional approval– of arbitration agreements prohibiting consumers from banding together in class actions over their grievances. Business’ efforts now are directed at winning the same prohibition in employee contracts. Some 25 million employees have contracts with mandatory arbitration agreements banning class actions. The National Labor Relations Board told the justices that those bans violate federal labor law. Business and the Trump Administration—in a switch from the Obama Administration’s position– argued that the bans must be enforced under the Federal Arbitration Act.
And the second case to watch closely from October’s argument session is the partisan gerrymandering challenge from Wisconsin. The political stakes for both parties and for voters are enormous. The justices are asked to decide when the redrawing of legislative or congressional district lines are so infected with partisanship that it violates the Constitution. Just how to measure too much partisanship is the challenge facing the Supreme Court.
Now on to November’s arguments and beyond. The two-week November argument session begins Oct. 30, and, to be frank, the arguments are, well, pretty wonky—with one exception.
The exception–wonky, but important– asks when does Congress cross a constitutional line by directing the outcome of a court case through legislation? David Patchak of Michigan argues that Congress violated the Constitution’s separation of powers when it passed a law requiring courts to dismiss any lawsuit challenging the Department of Interior’s decision to take a tract of land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Band of Indians.
Patchak, who lives near the land, had filed a suit challenging the tribe’s plans to construct a casino and entertainment facility on the trust property. His case reached the Supreme Court in 2012 but only on the issue of whether his suit could go forward. The justices said yes, but after that ruling, Congress enacted the law removing jurisdiction from the federal courts over any actions relating to the property. Patchak v. Zinke will be heard on Nov. 11.
Separation-of-powers issues go to the fundamental structure of our Constitution. And these challenges offer a window into how the justices view their own role and roles of the other branches.
Four critical lawsuits
Now about that “legal tsunami.” In one remarkable week in October, our federal courts were busy with four critical lawsuits against President Donald Trump and Trump Administration policies. They heard arguments on whether the administration could end insurance subsidies under the Affordable Care Act and could penalize so-called sanctuary cities and counties that refuse to fully cooperate in enforcing federal immigration laws; whether the administration’s latest “travel ban” violates immigration law and the Constitution, and whether the president has violated the Constitution’s emoluments clause which bars federal officials from receiving benefits from foreign governments.
Any and all of those issues could reach the Supreme Court, if not this term, then in the near future. To paraphrase a famous Bette Davis line (remember which movie?): Fasten your seatbelts. It’s going to be a bumpy ride.