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What We Expect From the Supreme Court Next Week

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By Mark Wilson, Esq. on May 15, 2015 3:53 PM

The Supreme Court has been quiet since May 4, when it issued a fairly prosaic opinion in Bullard v. Blue Hills Bank, concluding that an order denying a proposed bankruptcy repayment plan isn't a final, appealable order.

Monday, the Court will be in session, but it won't be entertaining oral arguments. Instead, it will probably announce new opinions and new cert. grants (or denials) for cases to be heard next term. Here's what we think is in store.

Opinions! Opinions!

As we reported last week, there are 35 cases still outstanding from the Court's October 2014 term, including Zivotofsky v. Kerry, which was argued in November and, six months later, still hasn't been decided. The length of time suggests that the Court believes this to be an important opinion (which it is), but also that it might be fractured, containing a lot of back-and-forth between the justices in different concurrences and dissents.

The jury is also still out, so to speak, on U.S. v. Elonis, the "Facebook threats" case. That was argued in December and presents touchy First Amendment issues, many of which can be resolved just by looking at the totality of Elonis' threatening statements.

Cert. Grants

A bevy of cert. petitions were scheduled to be presented at the justices' weekly conference yesterday. The vast majority of them will be denied, but some of them might not be. Of particular interest is Maricopa County v. Lopez-Valenzuela, in which the Ninth Circuit struck down a state law unilaterally denying bail to all undocumented immigrants arrested of a variety of felonies, whether or not the offense was violent and whether or not the defendant presents a flight risk.

Maricopa County petitioned the Supreme Court, suggesting that the Ninth Circuit's opinion could call into question other categorical-denial statutes in 17 other states. That seems like it would spark the Supes' attention.

Can You DIG It?

We could also see cases resolved using one of the Supreme Court's wildcard tricks, the "DIG," which stands for "dismissed as improvidently granted."

Rather than actually decide the merits of a case, the Supreme Court can say, "Whoops, you know what? We should never have granted cert. to begin with." DIGs usually happen when the case unfolds in a messy way, wrote John Culhane in Slate in 2013, musing on possible outcomes of California's Proposition 8 case. None of the cases this term has been as procedurally fraught as Prop. 8 was, and in the end, the Court decided to dismiss that case due to the proponents' lack of standing.

Whatever the Court decides to do, it will have to do it fast: There's only about a month and a half left in the term.

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