SCOTUS preview...the ones you haven't really heard about.

Aardvark86

HR All-American
Jan 23, 2018
2,782
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Hi there boyz and girlz (or...whatever). We're within shouting distance of the kickoff of the October term. Now sure, there are some sexy cases on the docket this year (the Harvard AA case, Alabama VRA redistricting, 1983, another masterpiece bakeshop type case except this time styled as a free speech claim)

But you know me. I'm a big believer in the principle that good governance is more about structure and process than about the substantive choices that may be made or rights that may exist. While governance cases tend to be pretty, well, dull, they're the ones to watch if you really want to think about the direction. And so, I bring you, my cases to watch (so far) for the upcoming term.

We start things off with a bang, on day 1, with Sackett v EPA, the saga of a couple that was blocked from building a house by the EPA, which viewed their property as a wetland through we'll charitably call a rather extended chain of logic. So this is both a statutory construction case and an agency deference case. Yet -- perhaps consistently with last term's AHA case, neither party seems particularly excited about using the word "Chevron" in their briefs. It'll be interesting to see if Chevron continues to be the (dead) elephant in the room and the argument just focuses on the statute.

A week later, a case that should be near and dear to Iowans: National Pork Producers Council, which presents some really interesting issues regarding when state regulatory schemes with out of state effects amount to an inappropriate regulation of interstate commerce. This one's actually pretty important. Basically, can California (which imports 99% of its pork from other states) require that pork producers provide sows with luxury condos (which would of course be policed by California inspectors visiting pork farms in Iowa)? A classic Federalism v. Commerce Clause face-off!

In the November term, we get Axom v FTC, a separation of powers/preclusion of judicial review case about whether you can be forced to go through administrative proceedings before challenging whether the agency's procedure itself is even constitutionally appropriate under separation of powers. In other words, can Congress actually strip the supremes of jurisdiction to review constitutional disputes? Oh, by the way, this is the third case from everybody's favorite Circuit, the Ninth (notice any themes here?), and counsel of record is everybody's favorite advocate, Mr. Paul Clement.

Then we have Mallory v. Norfolk Southern, considering whether a state can require an out of state corporation to consent to jurisdiction to do business within a state. Sounds pretty boring, until you consider that it effectively allows state residents to often have 'home court advantage' against out of state corporations with otherwise minimal contacts within a state other than a business registration of some sort.

Finally, no calendar date yet, but the Moore case (NC) considers whether state courts can have any role in overruling a state legislature's decisions with respect to electoral regulation.
 

Finance85

HR Legend
Oct 22, 2003
18,253
19,629
113
Good thread and post. You did a great job highlighting the interesting cases. Would you like to speculate on how they will go?
 
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BelemNole

HR Legend
Mar 29, 2002
33,407
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The Sacketts were stupid and didn't do their due diligence and have spent 20 years suing trying to make up for their own mistake. Anyone in the west would have had a wetland assessment done ahead of time (we do these every day at my company) and found out that the property likely had jurisdictional wetlands on it.
I'm sure the new court will find in favor of the Sacketts and once again throw the entire process into disarray.
 

Fijimn

HR Legend
May 7, 2008
11,886
19,539
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K
Hi there boyz and girlz (or...whatever). We're within shouting distance of the kickoff of the October term. Now sure, there are some sexy cases on the docket this year (the Harvard AA case, Alabama VRA redistricting, 1983, another masterpiece bakeshop type case except this time styled as a free speech claim)

But you know me. I'm a big believer in the principle that good governance is more about structure and process than about the substantive choices that may be made or rights that may exist. While governance cases tend to be pretty, well, dull, they're the ones to watch if you really want to think about the direction. And so, I bring you, my cases to watch (so far) for the upcoming term.

We start things off with a bang, on day 1, with Sackett v EPA, the saga of a couple that was blocked from building a house by the EPA, which viewed their property as a wetland through we'll charitably call a rather extended chain of logic. So this is both a statutory construction case and an agency deference case. Yet -- perhaps consistently with last term's AHA case, neither party seems particularly excited about using the word "Chevron" in their briefs. It'll be interesting to see if Chevron continues to be the (dead) elephant in the room and the argument just focuses on the statute.

A week later, a case that should be near and dear to Iowans: National Pork Producers Council, which presents some really interesting issues regarding when state regulatory schemes with out of state effects amount to an inappropriate regulation of interstate commerce. This one's actually pretty important. Basically, can California (which imports 99% of its pork from other states) require that pork producers provide sows with luxury condos (which would of course be policed by California inspectors visiting pork farms in Iowa)? A classic Federalism v. Commerce Clause face-off!

In the November term, we get Axom v FTC, a separation of powers/preclusion of judicial review case about whether you can be forced to go through administrative proceedings before challenging whether the agency's procedure itself is even constitutionally appropriate under separation of powers. In other words, can Congress actually strip the supremes of jurisdiction to review constitutional disputes? Oh, by the way, this is the third case from everybody's favorite Circuit, the Ninth (notice any themes here?), and counsel of record is everybody's favorite advocate, Mr. Paul Clement.

Then we have Mallory v. Norfolk Southern, considering whether a state can require an out of state corporation to consent to jurisdiction to do business within a state. Sounds pretty boring, until you consider that it effectively allows state residents to often have 'home court advantage' against out of state corporations with otherwise minimal contacts within a state other than a business registration of some sort.

Finally, no calendar date yet, but the Moore case (NC) considers whether state courts can have any role in overruling a state legislature's decisions with respect to electoral regulation.
Time to get rid of personal jurisdiction for multi-state business. It’s archaic. Seemed like the court was going in that direction with the Ford case. Next Congress needs to pass a law that foreign businesses need a presence and insurance to conduct business here.
 
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St. Louis Hawk

HR Legend
Gold Member
Feb 5, 2003
28,340
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Love me a good dormant commerce clause case

See California prohibits gas powered car sales in a few years ...

Mallory is the most interesting to me. I rep both Plaintiff and Defendants in cases, so no dog in the fight. But it seemed that the newer cases, starting with Mercedes Benz and Ford, were a little unfair.

Seems fairer to me that states have the power to say you want to do business in x, you have to consent to be sued in x.
 
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