Written By: Abbott M. Jones*

Christian & Small LLP

Birmingham, AL

With the opening of October Term 2011 on Monday October 3, Justice Scalia celebrated his 25th anniversary on the Supreme Court bench.

Since convening on the first Monday in October, the Court has heard more than 20 cases at oral argument and has issued opinions in 3 cases not argued orally and 1 opinion in an argued case. The Court has set its oral argument schedule for the first three months of the new term. The oral argument schedule for October may be found here, the schedule for November may be found here, and the schedule for December may be found here.

Below is an update on Court-related news, an overview of the issues currently pending before the Court, and brief synopses of the opinions issued thus far.

I.    Supreme Court: Breaking News

All eyes have been on the cert petitions before the Court in the various challenges to the Patient Protection and Affordable Care Act (“PPACA”). On November 14, 2011, the Court granted 3 of the 5 petitions for writs of certiorari that were conference on November 10, 2011. Prior to this grant, the Circuits had split on numerous key issues:

The Sixth Circuit was the first court of appeals to hear a challenge to the PPACA, and that court ruled that the individual mandate—requiring all individuals to maintain minimum essential health insurance coverage—was within Congress’s authority under the Commerce Clause.

The Eleventh Circuit issued the next decision regarding challenges to the PPACA. To begin, the Eleventh Circuit upheld the expansion of Medicaid. Unlike the Sixth Circuit, however, the Eleventh Circuit determined that the individual mandate overstepped the power allotted to Congress under the Commerce Clause. Finding that the individual mandate was severable from the other provisions of the PPACA, the Eleventh Circuit upheld the remainder of that Act.

The Fourth Circuit was the last to weigh in. It ruled 2-1 that a constitutional challenge to the PPACA was premature based upon its determination that the individual mandate is a form of federal tax and the Anti-Injunction Act bars suits seeking to block enforcement of a tax measure before it goes it effect.

Late to join the fray, the D.C. Circuit just last week issued its decision regarding challenges to the PPACA. In a 2-1 decision, the majority sided with the Sixth Circuit and upheld the individual health insurance mandate as constitutional. The dissent, on the other hand, sided with the Fourth Circuit and would have determined that the challenges were premature. Acknowledging its tardiness in joining the discussion, the majority opinion begins: “Since so much has already been written by our sister circuits about the issues presented by this case—which will almost surely be decided by the Supreme Court—we shall be sparing in adding to the production of paper.”

As expected by Supreme Court observers, and as explicitly anticipated by the D.C. Circuit just days before, the Supreme Court will consider the key issues of dispute, including:

1. Whether the Medicaid expansion provisions are constitutional;
2. Whether the individual health insurance mandate is constitutional;
3. If the individual health insurance mandate is nullified, whether that provision may be severed from the rest of the PPACA;
4. Whether the challenges, specifically the challenges brought by the states, are barred by the Anti-Injunction Act.

In an historic move from the modern Court, the Court has decided to allow a total of 5 ½ hours for oral argument of these issues. Oral argument likely will be scheduled for March, and observers expect an opinion from the Court near the end of the Term in June.

II.    Upcoming Issues

Besides the upcoming debate regarding the challenges to the PPACA, which will no doubt reach a fever pitch by the time the cases are argued in March, many other important issues are coming before the Court this Term.

The Court’s October argument calendar was dominated with issues related to criminal and habeas corpus proceedings, ranging from the timeliness of filing a petition if the petitioner was blameless for the delay to the custodial status of prisoners isolated from the general prison population for questioning. The Court also heard Supremacy Clause challenges to the Medicaid Act related to the preemption of state reimbursement rates. The Court also heard a Progress Clause challenge to congressional attempts to take works out of the public domain, which could have vast repercussions on U.S. copyright law.

In November, the Court will hear an important challenge under the Fourth Amendment to the use of GPS tracking device on the respondent’s vehicle without a warrant and without his consent. The Court will also hear a case that asks whether Bivens actions will lie against individual employees of private companies that contract with the federal government to provide prison services. The November calendar also includes several cases that raise questions regarding preemption of state law in various contexts.

In November and December, the Court will hear arguments in several cases addressing claims of ineffective assistance of counsel in the context of criminal actions.

In December, the Court will hear a case that asks the Court to determine when the statute of limitations begins to run under Section 16 of the Securities and Exchange Act. The Court will hear arguments regarding whether a plaintiff who alleges only emotional injuries can establish “actual damages” under the Privacy Act. In another important criminal case, the Court will consider whether a district court may direct that a defendant’s federal sentence be served consecutively to a state sentence that had not yet been imposed. Mid-December will see the Court focusing on expert testimony regarding DNA testing and patent claims regarding blood testing results.

III.    Opinion Update

So far this Term the Court has issued three opinions in cases not argued orally, and one opinion in an argued cases. Overviews of the opinions issued thus far follow:

Arbitration

In a per curiam decision in KPMG v. Cocchi, the Court held courts must carefully examine complaints seeking to invoke their jurisdiction to determine whether some claims are subject to arbitration. The Federal Arbitration Act reflects an “emphatic federal policy in favor of arbitral dispute resolution” such that arbitrable claims must be sent to arbitration, even if nonarbitratble claims remain in the court and result in piecemeal litigation. The Court vacated the decision of the Florida appellate court and remanded with instructions to consider whether two of the four claims asserted in the complaint should be handled through arbitration proceedings.

Habeas Corpus

In its first opinion in an argued case, Greene v. Fisher, the Court considered an appeal from a habeas petition. Under the Antiterrorism and Effective Death Penalty Act, a federal court may not grant habeas relief to a state prisoner on any claim that has been “adjudicated on the merits in State court proceedings” unless that adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Court held that “clearly established Federal law” in that context means only that Court’s decisions as of the time of the relevant state-court adjudication on the merits.

In a per curiam decision in Cavazos v. Smith, the Court held that a reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. Even if the federal court disagrees with the state court’s decision to reject a sufficiency of the evidence challenge, it may only overturn that decision if it was “objectively unreasonable.” The Court reversed the decision of the Ninth Circuit and remanded the case for further proceedings consistent with the opinion.

In a per curiam decision in Bobby v. Dixon, the Court held that a habeas petitioner is entitled to relief only if the state court’s conviction “was contrary to, or involved an unreasonable application of, clearly established Federal law.” The Court reiterated its prior holdings that a person cannot invoke his Miranda rights anticipatorily in a context other than “custodial interrogation.” The fact that the petitioner had attempted to invoke his right to an attorney during a chance encounter with the police did not preclude the state from introducing his voluntary confession taken several days later, because the petitioner was not in custody during that chance encounter.  Finding no precedent to support the Sixth Circuit’s decision to overturn the conviction, the Supreme Court reversed and remanded the case for further proceedings consistent with the opinion.

* Abbott is the Editor of Stare Decisis and a Member of the Primerus Young Lawyers Section Executive Committee. She is an associate with Christian & Small LLP in Birmingham, Alabama, where she is a member of the firm’s appellate, post-verdict, and briefing practice group.

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