U.S. solicitor general's office at Main Justice. Credit: Mike Scarcella/ ALM

The U.S. Supreme Court enters its first conference meeting of 2018 with a list of heavyweight petitions ranging from constitutional attacks on administrative law judges at the U.S. Securities and Exchange Commission, an ethics fight between the U.S. solicitor general and the ACLU, and Arizona's death penalty.

Traditionally, mid-January marks the time the justices finish adding cases for argument during the current term. At the end of 2017, only nine cases were awaiting argument dates. That leaves considerable room for the justices to fill the March and April argument calendars.

Here's a look at seven cases scheduled for the Jan. 5 conference that might garner those necessary four votes to grant review.

The lawfulness of the SEC's in-house judge scheme is questioned.

Back in November, U.S. Solicitor General Noel Francisco said the Trump administration would no longer defend a federal appeals court decision that said administrative law judges at the Securities and Exchange Commission were “employees” and not “officers” subject to U.S. Constitution's appointments clause. The SEC then moved immediately to “ratify” the appointments of its five in-house judges.

Francisco urged the court to grant review in Lucia v. SEC to resolve the status of the ALJs, an issue that has split the lower federal appeals court. He also suggested that the justices appoint on outside lawyer to defend the decision by the U.S. Court of Appeals for the D.C. Circuit. Mark Perry of Gibson, Dunn & Crutcher represents investment adviser Raymond J. Lucia. Another case, from the Tenth Circuit, is also on the docket. That dispute, SEC v. Bandimere, poses a possible recusal from Justice Neil Gorsuch.

The SG's office wants the court to sanction the ACLU.

The Trump administration lost a court fight over a pregnant immigrant teen's request to have an abortion in Garza v. Hargan when the D.C. Circuit, in a per curiam opinion, upheld a lower court order allowing the teen's abortion. Solicitor General Francisco subsequently filed a high court petition seeking to vacate that decision and urging the justices to impose sanctions on the teen's ACLU lawyers for alleged unethical conduct in misleading the government about when the abortion would be performed. Both sides have filed briefs in Hargan v. Garza and non-record materials with the high court. Sidley Austin's Carter Phillips represents the ACLU, which has denied the charges.

Should online retailers have to pay state-based sales taxes?

South Dakota Attorney General Marty Jackley asks the Supreme Court to overturn the “physical presence” requirement that prevents states from requiring out-of-state retailers to remit taxes for sales made within the state. The physical presence requirement comes from the justices' 1992 decision in Quill v. North Dakota.

South Dakota's law adopts an “economic presence” test. It requires a seller who does not have a physical presence in the state to remit sales tax if the seller, in the prior or current year, meets either of two, alternative criteria: (a) the seller's gross revenue from sales delivered into South Dakota exceeds $100,000; or (b) the seller made sales for delivery into South Dakota in 200 or more separate transactions.

South Dakota and a number of other states are hoping to attract Justice Anthony Kennedy's vote for review. Kennedy, in a 2015 case, said the high court should re-evaluate Quill and its predecessor, National Bellas Hess v. Illinois Department of Revenue “in view of the dramatic technological and social changes that had taken place in our increasingly interconnected economy.” Nearly two dozen amicus briefs have been filed in the case South Dakota v. Wayfair.

Will the court take Breyer's call to re-examine the death penalty?

Hogan Lovells partner Neal Katyal may be hoping at least four justices are ready to accept Justice Stephen Breyer's repeated invitation to the court to reopen the debate over the constitutionality of the death penalty. Katyal attacks Arizona's capital sentencing scheme and then launches a broadside against the death penalty as cruel and unusual punishment in Hidalgo v. Arizona. “Together with more than 20 retired judges and prosecutors experienced with Arizona's capital system, I have urged the high court to take Hidalgo v. Arizona to eradicate arbitrariness and overbreadth from the death penalty system,” Rudy Gerber wrote recently in a National Law Journal op-ed.

A patent owner seeks lost profit from outside the U.S.

Ah, what would a conference list be without at least one patent case seeking to overturn the Federal Circuit? Kirkland & Ellis partner Paul Clement asks the high court in WesternGeco v. ION Geophysical whether a patentee who has proven a domestic act of infringement may recover lost profits it would have earned outside of the United States if the infringement had not occurred.

A jury found that ION had infringed six different claims from WesternGeco's four patents and awarded $12.5 million in royalties. The jury also awarded $93.4 million in lost profits. The Federal Circuit imposed a per se bar against recovering lost foreign profits. Clement got a boost from the U.S. solicitor general, who urged the justices to grant review.

California's gun regulations are on the docket.

Fallout from the justices' 2008 landmark Second Amendment decision continues to reach a high court reluctant to step back into the gun regulation arena. Silvester v. Becerra, according to its supporters, is a narrow constitutional challenge. The petition contends California's application of a full, 10-day waiting period to gun purchasers who already own a firearm and who clear a background check in fewer than 10 days is an “arbitrary and irrational burden” on their Second Amendment rights. The issue for the justices is what type of scrutiny courts should apply to gun regulations. D.C.'s Erik S. Jaffe is counsel to Jeff Silvester and two gun rights organizations.

On climate change and seals.

Alaska and the Alaska Oil and Gas Association, with support from the U.S. Chamber of Commerce and others, challenge the federal government's listing of the bearded seal—presently not endangered—as endangered because the species “will lose its habitat due to climate change by the end of the century.” The Trump administration opposes high court review.