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Supreme Court Convenes To Review A Summer’s Worth Of Petitions

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Kevin Daley Supreme Court correspondent
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The “long conference” is sort of like the first day of school at the U.S. Supreme Court.

Like schoolchildren, the justices of the Supreme Court get a lengthy summer vacation after the term’s business concludes in late June. Though the odd emergency petition arises over the sultry days of July and August, as a general matter, the justices are at liberty to “teach in Europe” or take speaking engagements in interesting locales. The chief justice, for example, accepted invitations from Australia and New Zealand, while Justice Sonia Sotomayor appeared in South Africa.

But, just like schoolchildren, they also have summer reading. Though the Court is not session, petitions for review are filed with the justices at a steady clip. The Court will convene Monday for the first time since June to discuss the hundreds of petitions that so rudely interrupted their summer junkets.

As of this writing, the Court has accepted a paltry 32 cases, less than half the number of cases they typically hear over the course of a term. What’s more, time is short for the Court to grant cases that can be decided this term. Given the demands lawyers face in preparing briefs and oral arguments, as well as the institutional constraints of the Court, the justices have until January to grant cases that can be briefed and argued before June.

A number of high-profile matters await the justices at the long conference. One case, Final Exit Network v. Minnesota, involves a Minnesota law that criminalizes speech which enables suicide. Though the Minnesota Supreme Court agreed the First Amendment protects such speech, it upheld the law because of the state’s interest in protecting the vulnerable — the mentally ill or the elderly infirm — from being coerced into suicide.

A pro-assisted suicide group called Final Exit Network runs an “exit guide” program “under which its volunteers provide information, education, and counseling to Network members who have decided to terminate irremediable suffering,” according to the petition. The Network itself and four of its volunteers were indicted after they guided a Minnesota resident named Doreen Dunn through the program in 2007. On appeal to the high court, the Network argues the state does not have a legitimate interest in criminalizing speech which assists suicide, and that the purpose of the law is to “suppress ideas.”

The petition puts the stakes in stark terms:

“If a competent, terminally ill, imminently dying man speaks with his wife about hastening his death, the wife becomes a felon if she urges him not to shoot himself, and instead informs him of the exact amount and combination of drugs needed to die with certainty,” the Network writes.

Another, called Janus v. American Federation of State, County, and Municipal Employees, presents the matter of forced union fees for public employees, something of a hobby horse for the Court’s conservative justices. Though public sector unions cannot force public employees to give contributions to the organization for political activities, it can require contributions related to expenses incurred during contract negotiations. Janus argues these compulsory fees violate his First Amendment rights, as the nature of a contract negotiation clearly implicates political issues.

A third, Adhikari v. Kellogg Brown & Root, concerns the reach of the Alien Tort Statute (ATS), which allows foreign nationals to bring lawsuits for violations of “the law of nations or a treaty of the United States.” According to the petition, the case was occasioned when almost two dozen Nepali citizens brought claims alleging that agents of an American corporation engaged in human trafficking and forced labor in the course of fulfilling a contract to provide labor on a U.S. military installation in Iraq. The question here is about the reach of the ATS outside the U.S.

The Supreme Court held in 2o13 that an ATS claim must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application.” But, as the petition argues, federal appeals courts are divided as to how to apply this test. In this case, the 5th U.S. Circuit Court of Appeals concluded the ATS has no extraterritorial application at all, while other courts have found that the involvement of U.S. citizens and U.S. interests are relevant in assessing the reach of the ATS.

The corporation counters that it would be premature to grant review on this issue, because the lower courts are still coming to terms with a recent Supreme Court decision that held an ATS action may not be brought if the “violation of the law of nations or a treaty of the United States,” occurred abroad. Once the ruling has sufficiently “percolated” in the circuit courts, it argues review will be unnecessary.

The justices will hear a related ATS controversy on Oct. 11, concerning whether corporate liability exists within the law.

The Court will announce grants from the long conference Thursday.

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