The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court has an interesting docket for next term but hasn’t accepted any blockbusters yet. That is likely to change soon. While the Supreme Court’s next term officially begins on Oct. 6, its “long conference” is Sept. 29.

At this conference the court will review a backlog of petitions that have been piling up over the summer. SCOTUSblog compiles a list of petitions that it thinks have a reasonable chance of being granted.

Looking at “long conference” petitions and petitions that haven’t yet been set for conference, four stand out as having a particularly significant impact on the states, if the court accepts them.

  • Legislative authority denied. In a provision added by citizen initiative, the Arizona Constitution removes legislative and congressional redistricting authority from the Arizona State Legislature and places it in an unelected commission.

 In Arizona State Legislature v. Arizona Independent Redistricting Commission, the court is asked to decide whether this violates the U.S. Constitution’s Elections Clause, which requires that the time, place and manner of congressional elections be prescribed in each state by the “Legislature thereof.” While the use of redistricting commissions is popular for drawing state legislative district lines, only Arizona and California have mandated them for congressional redistricting. The court will consider this petition at its “long conference.”

  • Same-sex marriage. Petitions challenging the constitutionality of Virginia’s and Oklahoma’s same-sex marriage bans are set for the court’s “long conference.”

The U.S. Court of Appelas for the 10th Circuit has also struck down Utah’s ban, and the 7th Circuit just struck down the Wisconsin and Indiana bans. The 6th Circuit is expected to rule any day on bans affecting Kentucky, Michigan, Ohio, and Tennessee. Only a Louisiana federal district court and a Tennessee state court have upheld same-sex marriage bans since the Supreme Court decided United States v. Windsor last year. That case struck down the Defense of Marriage Act which defined marriage for purposes of federal law as only between and man and a woman. A pre-Windsor decision from the 8th Circuit upheld Nebraska’s same-sex marriage ban, which creates a split in the federal circuits ripe for Supreme Court review.

  • Affordable Care Act exchanges. On the same day in July two federal courts of appeals issued opposite opinions on whether the Affordable Care Act (ACA) permits tax credits on health insurance purchased through federal exchanges.

The U.S. Court of Appeals for the 4th Circuit decision in King v. Burwell in favor of the federal government has been appealed to the Supreme Court but hasn’t yet been set for conference. The entire D.C. Circuit will rehear Halbig v. Burwell, in which a three-judge panel decided against the federal government. The 4th Circuit (and many others) predict the ACA will “crumble” if tax credits are unavailable on federal exchanges. Only 14 states and the District of Columbia have established exchanges. This petition is not yet set for conference.        

  • Medicaid private right of action. In 2012 in Douglas v. Independent Living Center of Southern California, the court was supposed to decide whether the Supremacy Clause allows private parties to sue states to enforce a Medicaid reimbursement statute. The court ultimately did not decide the issue. 

The majority of the court seemed skeptical that the Supremacy Clause provides a cause of action. Dissenting Justices John Roberts, Samuel Alito, Antonin Scalia  and Clarence Thomas concluded it does not. Unsurprisingly, this issues is before the court for consideration again. The petition in Armstrong v. Exceptional Child Center is not yet set for conference. The State and Local Legal Center filed an amicus brief in Douglas v. Independent Living Center of Southern California.    

While the “long conference” is only a few weeks away, it may be a while before the court decides whether to grant or deny any of these petitions, even those set for the “long conference.” The court frequently relists cases, or postpones deciding on petitions until later conferences during the term.  

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.

Posted in: Public Policy
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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.