5 Cases to Watch at Friday's US Supreme Court Conference
The U.S. Supreme Court starts the term's second-to-last argument cycle on Monday. But first: the March 16 conference. Here are five cases on the justices' plate for review.
March 15, 2018 at 02:14 PM
4 minute read
The U.S. Supreme Court starts the term's second-to-last argument cycle on Monday but first it must wade through a list of pending petitions marked by controversies involving the death penalty, the behavior of ACLU lawyers in an abortion case, an unusual cy pres settlement, and the Flint, Michigan, water crisis.
For federal regulatory diehards, the justices also are being asked to grant review in a head-on challenge to so-called “Auer” deference—the judicial doctrine in which courts defer to an agency's interpretation of an ambiguous regulation. The business community favors review.
The Supreme Court in mid-January passed the usual cutoff point for adding cases to the current term's argument docket. Any cases granted review from the justices' March 16 conference likely would be heard in the October 2018 term.
Here's a quick look at five pending petitions.
The constitutionality of the death penalty is in play.
Two cases directly challenge the constitutionality of capital punishment under the Eighth Amendment: Hidalgo v. Arizona, filed by Hogan Lovells partner Neal Katyal, and Evans v. Mississippi, brought by Alison Steiner of the Office of State Public Defender. The Arizona petition has been on the justices' conference list 10 times.
DOJ's Noel Francisco wants ACLU lawyers reprimanded.
In Azar v. Garza, the U.S. solicitor general is asking the justices to vacate a federal appellate court decision that gave an undocumented pregnant teenager access to an abortion. U.S. Solicitor General Noel Francisco contends that American Civil Liberties Union lawyers for the teenager misled the government about the timing of her abortion and he suggests sanctions against them as well as vacating the lower court ruling. Friday's conference is the eighth time the petition is on the conference list. Sidley Austin partner Carter Phillips is representing the ACLU in opposition to the petition.
Too much deference?
Several justices have indicated in prior opinions that they are unhappy with so-called Auer deference, an administrative law doctrine that stems from two Supreme Court decisions: Bowles v. Seminole Rock & Sand (1945) and Auer v. Robbins (1977). William Consovoy of Consovoy McCarthy Park offers the court a chance to overrule the doctrine in Garco Construction v. Speer, Secretary of the Army. This petition has been listed seven times for the justices' conference. The U.S. Chamber of Commerce, represented by Covington & Burling, filed an amicus brief supporting Garco Construction Inc.
The “hot oil” cy pres challenge.
In Speedway v. Wilson, Shook, Hardy & Bacon partner Tristan Duncan represents Speedway and other objectors to $24.5 million in class settlements over claims that oil companies and gas stations overcharged consumers for gasoline on hot days. Duncan is challenging cy pres settlements, which set up a fund to induce state regulators to change the law to require gasoline to be sold by a “temperature-adjusted” gallon instead of the current actual volume. Duncan's petition argues the cy pres settlements violate the Rules Enabling Act and federal rules. There's another pending cy pres challenge: Frank v. Gaos and Google.
Poisoned water in Flint, Michigan.
A trio of petitions—Wright v. Mays; Wyant v. Mays; City of Flint v. Boler—anchored in the Flint water crisis challenge the U.S. Court of Appeals for the Sixth Circuit's ruling that the federal Safe Drinking Water Act does not bar Flint residents' constitutional claims. Representing the challengers are John Bursch of Bursch Law in Caledonia, Michigan; Gregory Meihn of Foley & Mansfield in Ferndale, Michigan; Frederick Berg of Detroit's Butzel Long and William Kim of Flint Law Department.
Counsel for the Flint residents are Samuel Bagenstos of the University of Michigan Law School and Nicholas Szokoly of Baltimore's Murphy, Falcon & Murphy. The justices will be taking their first look at these cases at the March 16 conference.
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