Petitions to watch | Conference of January 12

Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; and (4) whether the Texas legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.

Issues: (1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw Texas House of Representatives districts unless the governor called a special legislative session to redraw the Texas House map within three business days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted Texas House of Representatives districts originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether any of the invalidated districts that were unchanged from the 2012 court-imposed remedial plan to the 2013 legislatively adopted plan (in Bell, Dallas and Nueces Counties) are unlawful, when the district court in 2012 issued an opinion explaining why these districts were lawful; and (4) whether the Texas Legislature had a strong basis in evidence to believe that consideration of race to maintain a Hispanic voter-registration majority was necessary in House District 90 in Tarrant County, when one of the plaintiffs in the lawsuit told the legislature it had to keep the district’s population above 50 percent Spanish-surnamed-voter registration to avoid diluting Hispanic voting strength.

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit, in conflict with the decisions of three courts of appeals, erred in exercising jurisdiction under 28 U.S.C. § 1291 over a pretrial order denying a motion to dismiss following a full trial on the merits; (2) whether a court may exercise independent review of an appearing foreign sovereign’s interpretation of its domestic law (as held by the U.S. Courts of Appeals for the 5th, 6th, 7th, 11th and District of Columbia Circuits), or whether a court is “bound to defer” to a foreign government’s legal statement, as a matter of international comity, whenever the foreign government appears before the court (as held by the opinion below in accord with the U.S. Court of Appeals for the 9th Circuit); and (3) whether a court may abstain from exercising jurisdiction on a case-by-case basis, as a matter of discretionary international comity, over an otherwise valid Sherman Antitrust Act claim involving purely domestic injury. CVSG: 11/14/2017.

Issue: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred—to the point of warranting summary reversal—in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

Issue: Whether 18 U.S.C. § 3663A(b)(4) covers costs for reimbursement under the Mandatory Victims Restitution Act that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.

Issue: Whether (and, if so, when) a statement concerning a specific asset can be a “statement respecting the debtor’s … financial condition” within Section 523(a)(2) of the Bankruptcy Code. CVSG: 11/09/2017.

Issue: Whether administrative law judges of the Securities and Exchange Commission are officers of the United States within the meaning of the appointments clause.

Issues: (1) Whether the Endangered Species Act authorizes the federal government to designate as critical habitat private land that is unsuitable as habitat and has no connection with a protected species; and (2) if the Act authorizes such a designation, whether it would be consistent with the United States Constitution.

Issues: (1) Whether voting districts, to the degree that they are not drawn to conform to court-recognized criteria, burden the First and 14th Amendment political rights of parties and their adherents; (2) whether there is a frequent-election objective in Article 1, Section 2, of the United States Constitution that requires a redistricting to allow as many voters in a district as possible who have voted in a previous election in the district to use their First Amendment-based accumulated knowledge of an incumbent or candidates to vote in a subsequent election; and (3) whether court-recognized redistricting criteria and a frequent-election objective together present a reliable means by which to measure the representational rights of political parties and their adherents.

Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Issue: Whether administrative law judges of the Securities and Exchange Commission, who act as hearing officers in administrative proceedings, are inferior officers under the appointments clause.

Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency when the jury returns a guilty verdict that is set aside for a new trial.

Issue: Whether the Supreme Court should abrogate Quill Corp. v. North Dakota‘s sales-tax-only, physical-presence requirement.

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Issues: (1) Whether partisan gerrymandering claims are justiciable; and (2) whether the district court erred by dismissing appellants’ partisan gerrymandering claims without discovery and an evidentiary record.

Issues: (1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state’s equitable defenses against the federal government where the federal government signed these treaties in the 1850’s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred in holding that lost profits arising from prohibited combinations occurring outside of the United States are categorically unavailable in cases in which patent infringement is proven under 35 U.S.C. § 271(f). CVSG: 12/06/2017.

Issues: (1) Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Issue: Whether stock that a railroad transfers to its employees is taxable under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1).