The Big Seven (Plus One) Supreme Court Cases: Part 1

As I mentioned in my last post, there are seven important cases that have already been granted by the U. S. Supreme Court ("SCOTUS" for short) that will be argued during this term (October 2017-June 2018).  To keep the blog entries short, I'll cover two cases with each post, tossing in an extra case (so eight in all), and I'll present them in the order that they will be argued.

October 2: Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; NLRB v. Murphy Oil USA (consolidated)

These cases, consolidated for oral argument, may at first seem dry and technical, not the kind of cases that gets much play in the press. But they have the potential to change the relationship between employers and employees in a major way, specifically whether employees can bring collective (group) or class actions against their employers to enforce work-related legal claims.

Many employers condition employment on the employee's agreement to resolve workplace disputes through individual arbitration.  The question is: given those employment agreements, can employees join together (as the employees in these three cases did) to resolve disputes (in these cases, alleged violations of overtime and wage provisions of the Fair Labor Standards Act FLSA)) as a group or are they limited to individual arbitration? Does it matter that the FLSA specifically authorizes an employee to bring a collective action?  Does the National Labor Relations Act (NLRA) that allows for "concerted activities" for "mutual aid and protection" trump the Federal Arbitration Act that says arbitration agreements shall be "valid, irrevocable, and enforceable"?  Do the provisions of the FLSA and the NLRA make the arbitration clauses unenforceable because it impinges on a statutorily granted right?

And to top it all off, there is a split in the circuits: the employees won in the 7th and 9th Circuits, the employers won in the 5th Circuit.  It may seem a dry exercise in dueling statutes, but a decision favoring the employers could make collective/class actions for resolving employment claims a thing of the past.

October 3: Gill v. Whitford

Do you like partisan gerrymandering?  If you're honest, probably not, even if it's your party's turn to be on top because you likely remember what it's like to be on the bottom.  But even if you don't like it, you think, well, that's just the way it is.  (Notice that this is partisan gerrymandering, not racial gerrymandering.  The districts are drawn to benefit a political party, not to keep minority voters from voting, influencing an election, or electing a candidate). Gill v. Whitford could change that.  Maybe.

Election law challenges such as a redistricting case are decided by a three-judge panel, made up of two district judges from the state (in this case Wisconsin) and one judge from the federal Court of Appeals for the circuit that state is in (in this case, the 7th Circuit). Any appeal of that case goes directly to the Supreme Court (no certiorari petitions here). Here the trial court held, 2-1, that the 2011 Wisconsin state assembly map was unconstitutional partisan gerrymandering, violating the Equal Protection Clause of the Fourteenth Amendment and the First Amendment's freedom of association clause. [Editorial note: the opinion was written by Judge Kenneth Ripple of the 7th Circuit, who was my constitutional law professor at Notre Dame.  He is extremely bright, and very fair and thoughtful, although he's no one's idea of a liberal.  When I saw that he wrote the opinion I was frankly a little bit surprised].

The surprise I just mentioned is that while the Supreme Court has technically held that political gerrymandering cases are justiciable, which is a fancy way of saying we as a court will decide them, the reason they won't really decide them is they have not come up with a standard to decide them, at least not one that five or more justices can agree on.  The leading case is Vieth v. Jubelirer, 541 U.S. 267 (2004), a case out of Pennsylvania (and one where I knew most of the lawyers) where the Supreme Court couldn't even get five justices to sign an opinion.  While five members of the Court ruled that perceived partisan gerrymandering in Pennsylvania was not unconstitutional, four Justices believed it was impossible to define a standard to judge partisan gerrymandering and would have overruled the case that allowed partisan gerrymandering cases to ever be decided, while four others would have allowed the case to go to trial although not agreeing on a standard either.   Justice Kennedy, in his concurrence with the first group, believed that some manageable standard for determining partisan gerrymandering could be developed, and challenged lower courts to help identify this standard. 

Could Gill v. Whitford be it?  It all depends on how the Supreme Court perceives the standard that the District Court used in find unconstitutional gerrymandering.  And the case almost surely depends on how Justice Kennedy votes: does he think the challenge he issued in his opinion in Vieth has been met?  It is a somewhat complex mathematical/economic model that the plaintiff's attorney and a political scientist, both from the University of Chicago, devised.  Without going into the calculations, the method asks if the gerrymandering was meant to place a severe impediment on voters on the basis of their political affiliations, that impediment has been shown, and there are no other legitimate grounds for this.  (I know that sounds like any partisan gerrymander, but you have to do the math to see how it really works.  Details of that here; the opinion (all 159 pages) is here).

To be sure, I'll be watching this one.


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