The justices this morning issued orders from their October 6 conference. They did not act on the two challenges to President Donald Trump’s March 6 executive order, often known as the “travel ban,” nor did they grant review in any new cases. However, they did call for the views of the U.S. solicitor general in one case and set two original-jurisdiction cases for oral argument “in due course.”
On Thursday of last week, the two sides in the dispute over the travel ban weighed in on the future of the challenges in the wake of Trump’s September 24 proclamation, which restricted travel to the United States indefinitely by nationals from eight countries (Somalia, Syria, Libya, Iran, Yemen, North Korea, Venezuela and Chad). The September 24 proclamation came as a provision of the March 6 order that suspended travel by nationals from six Muslim-majority countries (Libya, Iran, Somalia, Syria, Sudan and Yemen) was due to expire. The Supreme Court removed the two cases, which had been scheduled for oral argument today, from its oral argument calendar and directed the federal government and the challengers to file briefs addressing whether the disputes are moot in light of the September 24 proclamation and the looming expiration of another provision of the March 6 order that suspended the admission of refugees into the United States. The justices did not take any action on the disputes in their regular order list, but a separate order could come later.
The justices called for the views of the U.S. solicitor general in Apple Inc. v. Pepper, in which the computer giant has asked the Supreme Court to review a ruling by the U.S. Court of Appeals for the 9th Circuit on who qualifies as a “direct purchaser” and can therefore file an antitrust case seeking damages. The plaintiffs in the case, purchasers of iPhones and iPhone apps, contend that Apple monopolized the market for the apps; Apple counters that the 9th Circuit’s decision allowing the suit to go forward is a “dangerous” one because of the “explosive growth of electronic commerce.” There is no deadline for the federal government to file its brief in the case.
The court also put two original-jurisdiction cases, Florida v. Georgia and Texas v. New Mexico, on a path toward oral argument. As Stephen Wermiel explained nearly three years ago, original-jurisdiction cases are lawsuits – usually, although not always, between two states – filed directly in the Supreme Court. Original-jurisdiction cases frequently involve disputes over water rights, as both of these cases do. Although the Supreme Court could in theory hold a trial itself in an original-jurisdiction case, it generally will instead appoint a special master to gather evidence and put together a report, to which both sides can respond. The justices will now hold oral arguments, presumably this term, on the questions raised in the parties’ responses to reports by the special masters in the two cases.
The justices also denied review in several noteworthy cases, including al Bahlul v. United States, in which a Yemeni national held at Guantanamo Bay had asked the court to decide whether military tribunals can try detainees for violations of U.S. law, and Conagra Brands v. Briseno, a class action filed by purchasers of Wesson Oil, who allege that Conagra misleadingly marketed the oil as “100% natural” when it was not. Conagra had argued that the trial court should not certify a class of purchasers, because it is impossible to reliably identify who bought the cooking oil during the time frame at issue, but the district court certified the class, and the 9th Circuit affirmed.
This post was also published on SCOTUSblog.