Posted Thu, July 30th, 2020 1:00 pm by Andrew Hamm
This week we highlight cert petitions pending before the Supreme Court that ask the court to assess the constitutionality of a Mississippi abortion law, a Texas liquor law and a federal law governing the appointment of patent judges. In Dobbs v. Jackson Women’s Health Organization, Mississippi asks the court to weigh in on the state’s Gestational Age Act, which bans abortions after 15 weeks of pregnancy except in cases of medical emergencies or severe fetal abnormalities. The state wants the court to take the case in order to “clarify whether abortion prohibitions before viability are always unconstitutional.” In Wal-Mart Stores v. Texas Alcoholic Beverage Commission, Wal-Mart asks the court to consider whether a Texas law that prohibits publicly traded corporations from obtaining a permit to operate a liquor store violates the Constitution’s commerce clause by discriminating against out-of-state businesses. And in United States v. Arthrex Inc., the federal government wants the court to decide whether administrative patent judges of the U.S. Patent and Trademark Office are “principal officers” who must be appointed by the president with the Senate’s advice and consent.
These and other petitions of the week are below the jump:
Walmart Stores Inc. v. Texas Alcoholic Beverage Commission
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioners in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issue: Whether a state law that has the predominant effect of protecting in-state retailers from out-of-state competition is immune from constitutional scrutiny just because it does not facially distinguish between in-state and out-of-state businesses of the same form.
Dobbs v. Jackson Women’s Health Organization
Issues: (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey‘s “undue burden” standard or Whole Woman’s Health v. Hellerstedt‘s balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.
United States v. Arthrex Inc.
Issues: (1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred by adjudicating an appointments clause challenge brought by a litigant that had not presented the challenge to the agency.
Manzano v. United States
Issues: (1) Whether the United States may seek a writ of mandamus in a criminal case to bring an interlocutory appeal that is not permitted by 18 U.S.C. § 3731; and (2) whether a writ of mandamus may issue when the applicant does not have a clear and indisputable right to it by established law, but the issuing court is firmly convinced that the lower court is wrong.
Arthrex Inc. v. Smith & Nephew Inc.
Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit’s severance remedy is consistent with congressional intent, when Congress has long considered tenure protections essential to secure the independence and impartiality of administrative judges; and (2) whether the Federal Circuit correctly held that the elimination of administrative-patent-judge tenure protections was sufficient to render APJs inferior officers, even though their decisions still are not reviewable by any principal executive officer.
Duke University v. Biomarin Pharmaceutical Inc.
Issues: (1) Whether a court of appeals can invoke forfeiture to refuse to address an appointments-clause violation in a pending appeal despite an intervening change in law; and (2) whether the U.S. Patent and Trademark Office Director’s delegation of authority to institute inter partes reviews to administrative patent judges acting as principal officers outside the director’s review violates 35 U.S.C. § 314, which vests institution authority solely in the director; and (3) whether establishing a nexus between a patentee’s invention and objective evidence of nonobviousness under Graham v. John Deere Co. requires the patentee to negate every other conceivable reason for a product’s commercial success and industry praise.
Petitions of the week: Abortion, alcohol, appointments and more,
SCOTUSblog (Jul. 30, 2020, 1:00 PM),