When the justices meet for their next regularly scheduled conference, on September 27, they will face thousands of petitions for review. They will grant only a handful of those petitions – last year, seven new cases, for a total of four hours of argument time. Between now and the end of September, I will take a look at (and briefly summarize) some of the interesting petitions that have been distributed for the justices to consider at the so-called “long conference.”
In Epic Systems Corporation v. Tata Consultancy Services Ltd., Epic has asked the justices to weigh in on whether a state law that places a cap on punitive damages can provide the kind of fair notice that the Supreme Court has said the Constitution’s due process clause requires, so that a punitive damages award that complies with the law passes constitutional muster. The question comes to the court in a lawsuit filed by Epic, which creates and licenses software for electronic medical records in 2014 alleging the theft of trade secrets by Tata, a company hired by Epic’s largest client to implement Epic’s software.
At trial, a jury awarded Epic (as relevant here) $140 million in compensatory damages and $700 million in punitive damages. But relying on a Wisconsin law that limits punitive damages to either $200,000 or twice the compensatory damages award, the trial judge reduced the punitive damages award to $420 million.
On appeal, Tata challenged the amount of both awards. The U.S. Court of Appeals for the 7th Circuit upheld the compensatory award, and it agreed that Epic was entitled to punitive damages. But it ruled that the due process clause barred a punitive damages award that was greater than the amount of the compensatory damages award.
Epic went to the Supreme Court in April, asking the justices to weigh in. It tells the justices that the 7th Circuit’s decision conflicts with their earlier decisions, which have made clear that the due process clause requires a defendant to have notice of the potential magnitude of a punitive damages award – precisely, Epic contended, what the Wisconsin law provides.
Tata counsels the court to deny review, stressing that Epic “never once advanced the per se rule it urges here.” The 7th Circuit’s decision, Tata continues, is simply a “straightforward, fact-intensive, and correct application of the guideposts established” by the court in its decisions in BMW v. Gore and State Farm Mutual Automobile Insurance Co. v. Campbell.
In Doe Company v. United States, the justices have been asked to weigh in on a grand jury’s efforts to obtain documents as part of its investigation into a corporate deal. Many of the details of the dispute are redacted from the petition, including the names and countries involved, but the government alleges that the company being purchased provided misleading information about its actual value. As a result, the government contends, the buyer paid too much for it. The proceedings now before the court arose when a grand jury in northern California tried to subpoena documents from a third company, a foreign venture-capital firm known only as Doe Company, and one of its partners, known as Pat Roe, who used to work at the acquired company.
Doe Co. asked the court to block the subpoenas, but the court rejected that request and ordered both Doe Co. and Roe to turn over the documents. Roe agreed to comply, but the company refused, prompting the court to hold it in contempt. The company then appealed to the U.S. Court of Appeals for the 9th Circuit, which ruled that it lacked the power to review the district court’s order directing Roe to turn over documents. The court of appeals upheld the district court’s orders requiring Doe Co. to comply with the subpoena and holding the company in contempt for failing to do so.
Doe Co. came to the Supreme Court, asking the justices to weigh in on two questions – both of which, the company argued, “involve a circuit split, a sharp departure from this Court’s precedents, and sweeping implications for both civil and criminal subpoenas.” The first issue, Doe Co. suggested, was whether a court of appeals can review an order requiring a third party to produce documents when the party appealing the order has a substantial interest in the order that will be lost if it cannot appeal immediately. The second question is whether a federal court can enforce a subpoena that is directed to a foreign recipient and demands documents that are not related to the recipient’s contacts with the United States.
The federal government urged the justices to stay out of the dispute, countering that Doe Co.’s assertions “lack merit” and that the “decision below does not conflict with any decision of this court o another court of appeals.”
In May, the justices agreed to hear Dobbs v. Jackson Women’s Health Organization, the challenge to Mississippi’s ban on abortions after the 15th week of pregnancy. In Rutledge v. Little Rock Family Planning Services, Arkansas has asked the court to decide whether states can ban pregnant women from seeking abortions solely because of a prenatal diagnosis of Down syndrome.
The state law at the heart of the case was passed in 2019 in response, the state said, to “extraordinarily high rates of abortion” after a Down syndrome diagnosis. The challengers, who include the state’s only abortion clinic and its medical director, went to federal court, arguing that the law is unconstitutional because states cannot ban abortions before the fetus becomes viable. The U.S. Court of Appeals for the 8th Circuit agreed and struck down the law.
Leslie Rutledge, the state’s attorney general, came to the Supreme Court in April, asking the justices to take up the case. In the wake of the court’s 2020 ruling in June Medical Services v. Russo, in which Chief Justice John Roberts provided the key vote, in a separate opinion, to strike down a Louisiana law that required doctors who perform abortions in that state to have the right to admit patients at nearby hospitals, Rutledge urged the court to grant review “to make clear that, as is true everywhere else in constitutional law, state interests matter and can sustain abortion regulation.” The Arkansas law, Rutledge contended, advances two important state interests: the state’s “palpably compelling interest in preventing selective abortion from eliminating its population with Down syndrome”; and its “equally powerful interest in protecting its citizens with Down syndrome from the grotesquely stigmatic message that selective abortion sends them.”
The challengers asked the justices to leave the 8th Circuit’s ruling in place, telling them that the Arkansas “ban strikes at the core of the abortion right: the right of a pregnant person to decide for herself whether to terminate a pregnancy.” A state, the challengers stressed, cannot “dictate ‘right’ and ‘wrong’ reasons for terminating her pregnancy any more than it may legislate acceptable and unacceptable reasons for exercising other constitutional rights.”