As the Senate decided the future of then-Supreme Court nominee Brett Kavanaugh, legal experts gathered in late September for a program entitled “On the Docket: Looking Ahead at the New Supreme Court Term,” sponsored by the ABA Division for Public Education and the American University Washington College of Law to discuss the cases that will soon come before the High Court.
The panel included experienced Supreme Court litigators Beth Brinkmann of Covington & Burling, LLP, and Sarah Harrington of Goldstein and Russell, P.C.; WCL law professor Angela Davis; and New York Times Supreme Court correspondent Adam Liptak.
“The Supreme Court has room in this current term on its docket for about 80 oral arguments” said Steve Wermiel, a WCL law professor, who moderated the discussion, noting that he expects the Court to use only about 60 of those available slots. As the Court opened on Oct. 1, the docket currently includes 43 cases.
Of those 43, the panel highlighted several cases to watch. Here are five of them:
- Timbs v. Indiana (Excessive fines)
The issue: Whether the Eighth Amendment’s exclusion of excessive fines applies to state and local governments.
Tyson Timbs was convicted of selling four grams of heroin in Indiana. While the state’s maximum fine for such a crime is $10,000, Tyson’s $43,000 Land Rover was seized under a civil forfeiture law because it had been used to transport the drugs.
As Liptak explained, Timbs went on to win in the lower court on the basis that seizing the Land Rover violated the excessive fines clause in the Eighth Amendment. However, the Indiana Supreme Court rejected the argument.
Liptak said that civil forfeiture laws are controversial among both liberal and conservative justices as a growing concern. Citing an opinion by Justice Clarence Thomas, Liptak said Thomas wrote, ‘civil forfeiture has in recent decades become widespread and highly profitable, and because the law enforcement entity responsible for seizing the property often gets to keep it, those entities have strong incentives to pursue forfeiture.’
- Madison v. Alabama (Death penalty)
The issue: Should someone with dementia be executed if he does not remember his crime?
In Alabama, Vernon Madison had been convicted three times in the killing a police officer, and was sentenced to death. While on death row, Madison suffered two strokes, causing at least some impairment. His lawyer says that Madison has dementia and cannot remember committing his crime.
Davis explained that the attorney is arguing that there is no deterrent or retributive value to executing someone in Madison’s condition. Madison’s execution violates Eighth Amendment protections against cruel and unusual punishment and Madison’s 14th Amendment guarantees of equal protection, the lawyer argues.
But the state believes that Madison is competent and the fact that he can’t remember does not make him incompetent.
Davis, an expert on criminal law and author of “Arbitrary Justice: The Power of the American Prosecutor,” said this is not the first time that “competency to be executed” has been decided by the Court, but that the Court was not clear enough in the past on what mental defects make a person incompetent.
- Apple Inc. v. Pepper (Antitrust)
The issue: Apple has monopolized the market through the sale of apps in its App store, say some iPhone users. But can these users sue the company under the current antitrust laws?
A group of consumers argue that Apple has a closed system for sale of apps on its devices and the company artificially inflates prices because developers must go through a single store that takes a sizeable 30-percent cut of their revenue.
In describing the case, Brinkmann said it involves a question of whether or not iPhone users who buy iPhone apps have standing to sue Apple.
“In order to do so, they have to be direct purchasers,” she said, citing Illinois Brick Co. v. Illinois, in which the Supreme Court in 1977 determined that indirect consumers of products lack Article III standing to bring antitrust charges against the producers of those goods.
“So, is Apple like a shopping mall …just setting up this platform for sellers and buyers to come in? [If so,] they’re not selling directly to the iPhone owner,” Brinkmann said. “Or, is the iPhone owner actually paying that 30 percent commission directly to Apple?”
According to Brinkmann, who has argued about two-dozen cases before the Court, the matter will have a “real impact” on e-commerce, as companies such as Amazon and Ebay also act as intermediaries between product producers and purchasers. “It’s bringing antitrust law into the modern economy, so keep an eye on it.”
- Nieves v. Bartlett (First Amendment)
The issue: Whether probable cause to arrest someone means that person cannot bring a First Amendment retaliatory arrest case.
Russell Bartlett was arrested and charged with disorderly conduct and resisting arrest at a public event in Alaska. Bartlett subsequently sued the officers, claiming false arrest and imprisonment, excessive force, malicious prosecution and retaliatory arrest. On all of the claims, the district court granted summary judgment to the police officers. Since then, the Ninth Circuit has held that a plaintiff can make a retaliatory arrest claim even if the arresting officers had probable cause.
“The Supreme Court often sides with law enforcement and will be wary of opening the door to what at least some members of the Court might think of as frivolous litigation,” speculated Liptak. “If I had to predict, they will align retaliatory arrest with retaliatory prosecution and say, so long as there is probable cause, you don’t get to come to court.”
- Gamble v. United States (Criminal procedure)
The issue: Whether the “separate sovereigns doctrine” should be overruled.
Harrington explained that the defendant in the case is arguing that the dual sovereign exception should be eliminated. The exception identifies federal and state governments as separate sovereigns; therefore, double jeopardy does not prohibit prosecutions against the same person for the same crime in federal and state court.
Harrington, who has argued 20 cases before the Supreme Court and has written merits briefs in more than a dozen additional cases, believes the Court will be reluctant to overrule law from 150 years ago, dating back to the 19th century.
What may be most interesting is the case’s implication on legal issues that may arise from Robert Mueller’s FBI investigation, said Harrington.
Many believe the separate sovereigns doctrine discourages President Donald Trump from pardoning his allies caught up in the investigation, as he can pardon those convicted of federal crimes, but not state ones. And, many say that an overruling of the doctrine could theoretically protect someone in receipt of a presidential pardon from any state action.
To watch to the entire “On the Docket” program, click here.