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SCOTUS News is Back!

And there is quite a lot going on this term. Today we’ll take a look at some of the cases that have been argued so far, and about which the FantasySCOTUS Crowd is currently abuzz.

Sessions v. Dimaya

Note: Our FantasySCOTUS case page stills names the previous Attorney General, Loretta Lynch, in order to retain all information and predictions made since the case first came on the docket.

Originally argued back in January, this case has a lot of ups and downs to consider. (Which may explain the Crowd’s wide range of predictions.) Chief among these variables was that we still only had eight Justices during initial argument. Immigration cases like this one have taken center stage since the beginning of the Trump administration, and Neil Gorsuch has now filled the vacant seat, but these are not the only reasons the Justices may have chosen to take their time. This case concerns not only due process for a non-citizen subject to deportation, but also whether overly broad statutory language may be unconstitutional. Dimaya committed several burglaries considered “crimes of violence” under statute. But how violent is burglary? And what level of violence constitutes the threshold for removal from the country? The statute in question contains language similar to other statutes previously litigated (see, e.g., Johnson v. U.S.). One might think that Dimaya has an edge over the government’s case here.

Jennings v. Rodriguez

This is another immigration-related case, though the issue is substantially different. Several statutes in immigration law govern the detention of aliens of various categories. Removal proceedings may or may not occur depending on an alien’s criminal history, possible terrorism connections, or flight risk. The Justices here will decide whether and for which types of aliens bond hearings must proceed.

An important part of the case also concerns the length of detention. At multiple points during argument, it became clear that most detained aliens are not held for an unreasonable length of time, and that many who remain in detention do so as they wait for the resolution of their civil case. During argument, Justice Kennedy in particular seemed a bit perturbed by the circumstances that lead to arbitrary detention length. Chief Justice Roberts, too, had some pointed questions for counsel. The Crowd reflects this potential for either Kennedy or Roberts to perhaps vote to affirm, but it is probably unlikely. We will find out, but probably not for at least a few months.

Epic Systems Corp. v. Lewis

Consolidated with NLRB v. Murphy Oil and Ernst and Young LLP v. Morris. These cases concern competing federal statutes that differ on whether employees who have signed arbitration agreements with their employers have the right to class action. During argument, the Justices appeared to split along their familiar ideological lines. The Crowd has by and large predicted that Justice Kennedy will side with the conservative wing of the Court for a 5-4 ruling. Congressional intent is crucial here, as is whether or not employees still have access to alternate mechanisms of action when filing suit against their employer.

Somewhat confusingly, the consolidation of the cases produced an argument session where the Solicitor General argued on behalf of petitioners, but the NLRB argued on behalf of the respondents in the other two named cases. Predictors, make sure you’ve cast your votes accurately.

Gill v. Whitford

This case is next in a line of gerrymandering cases stretching back into last term. There were some tough questions during oral argument. The liberal wing, with Kennedy at times, pushed back strongly against the counsel arguing for Wisconsin. Concern mounted about the consequences for the fundamental right of voting, and what it means to vote in a district that might be heavily partisan gerrymandered. Meanwhile, Roberts led the conservative Justices in asking questions about how far the Court can and should go in determining the bounds of partisan gerrymandering, something enormously difficult to prove, and even harder to find a balancing test for. It remains to be seen if Kennedy, or even Roberts or one of the other conservatives, may be swayed by the analysis of the new mechanism for district drawing – the Efficiency Gap. The Crowd has a theory. We’ll find out soon.

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