The United States Supreme Court receives about 7,000 petitions for review each term. Of those 7,000, the Court hears and decides about 1% of them, or about 70 cases. The October, 2017 term began with arguments in two cases on October 4, 2016. In all, 40 cases have been accepted for argument so far during the October term.
Most of the cases accepted for argument to date raise technical issues. For example, Manuel v. City of Joliet raises the question as to whether a falsely imprisoned individual has the right to raise a claim of malicious prosecution in federal court even though an adequate state remedy exists. McClane Company v. EEOC deals with the deference, if any, that is owed by a federal appeals court to the decision of the district court regarding the scope of an EEOC subpoena. And National Labor Relations Board v. SW General, Inc. concerns the legitimacy of an unfair labor practice charge filed by an acting general counsel of the NLRB, allegedly in violation of a federal law governing interim appointments when a permanent appointee has not been confirmed by the Senate.
Other cases deal with more substantive issues. McCrory v. Harris involves a challenge by the Governor of North Carolina to a federal court ruling that the State violated the Voting Rights Act by allegedly engaging in racial gerrymandering during redistricting of the State’s Congressional districts. Trinity Lutheran Church of Columbia, Inc. v. Pauley deals with a denial of state funds to a preschool and day care center operated by the Lutheran church. The church in that case argues that denying funds for a secular purpose on the basis of religion violates the First and Fifteenth Amendments. The State, on the other hand, points to a State constitutional provision prohibiting public money from being given to support a church. Finally, Moore v. Texas deals with the definition of the term “intellectual disability” as used in the determination as to whether a death row inmate is ineligible for capital punishment because of the “cruel and unusual punishment” that is inflicted on a criminal defendant with a severe mental impairment.
But perhaps the most interesting cases are those that are wending their way through the U.S. court system, that have been or are likely to be appealed to the Supreme Court, and that may be heard by the Court sometime later in the 2016 term. They include:
1) Gloucester County School Board v. G.G. This may be the first “gender identity” case to reach the Supreme Court. The Gloucester County School Board had a policy restricting the use of school locker rooms to students on the basis of biological gender, although there were single-stall bathrooms available to any student, regardless of gender. G.G., a biological female who identifies as a male, sued the School Board alleging that the policy violated Title IX of the Education Amendments of 1972, which denies federal funding to schools that engage in discrimination on the basis of sex. The initial regulations issued by the Department of Education allowed for separate bathrooms for male and female students but, in 2015, the Department changed the regulations to provide that “a school must treat transgender students consistent with their gender identity”.
The federal district court in Virginia that heard the case dismissed it on the ground that Title IX prohibits discrimination on the basis of sex and “not on the basis of other concepts such as … gender identity or sexual orientation”. The Court of Appeals for the Fourth Circuit reversed, citing the Supreme Court’s 1997 decision in Auer v. Robbins that held that courts must defer to an agency’s interpretation of its own regulation if the statute that it interprets is ambiguous. The Supreme Court has granted a stay of the Fourth Circuit’s decision pending the filing of a writ of certiorari by the School Board, allowing the School Board’s policy to remain in effect pending further action by the Court. The Supreme Court’s decision in the case is likely to turn on the question of whether the term “sex” in Title IX is ambiguous, as the Fourth Circuit held, or unambiguous, as the district court ruled.
2) Pro-Football, Inc. v. Blackhorse. Section 2(a) of the Lanham Act prohibits the registering of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The Blackhorse case involves the cancellation by the U.S. Patent and Trademark Trial and Appeals Board of six trademarks owned by the Washington Redskins NFL football team. While the case has not yet been heard by the U.S. Court of Appeals for the Fourth Circuit, the Redskins have petitioned the Supreme Court to combine this case with the case of Lee v. Tam, a Federal Circuit case in which the court ruled that the Patent and Trademark Board’s refusal on the basis of Section 2(a) to allow trademarking of the name of an Asian-American band called “The Slants” violated the free speech provision of the First Amendment to the United States Constitution.
3) House v. Burwell involves the payment by the Department of Health and Human Services of subsidies under Section 1402 of the Affordable Care Act to insurers that provided cost-sharing reductions to eligible individuals. The funds for these subsidies, however, were never appropriated by the U.S. House of Representatives, and the House sued the Obama Administration for spending unappropriated funds. The district court ruled for the House, and the Administration has announced that it will appeal the decision to the U.S. Court of Appeals for the D.C. Circuit. There is a possibility, although not a certainty, that the case will reach the Supreme Court before the end of its 2016 term.
