Author: Stephen Wermiel

First-year law students learn that the Constitution requires lawsuits in federal court to be based on claims of sufficient injury to establish standing to sue. When the Justices return to the bench in the fall, they will tackle the question whether it is enough for that injury to be based on the violation of rights created by Congress in a federal statute. The case, Spokeo, Inc. v. Robins, raises the important question whether Congress can create a cause of action in a statute that will satisfy the requirement for actual injury that comes from the Constitution or whether there must be additional evidence of harm. The answer is important as a theoretical matter in further defining the role of Congress and the contours of the constitutional separation of powers. The answer also has enormous practical importance because, according to some briefs filed in the case, there are many federal causes of action that raise this issue and that open the door to lawsuits, including potentially large and costly class actions.

Few subjects are more timely than the use of excessive force by law enforcement officials, and the Supreme Court on Monday will consider an aspect of that issue: how to evaluate excessive force claims made by pretrial detainees. Specifically, the Court will try to resolve a deep split among the federal appeals courts over whether a pretrial detainee may demonstrate unconstitutional excessive force by showing conduct that was objectively unreasonable or whether evidence of a subjective intent to harm the detainee is also required. The importance of the case, Kingsley v. Hendrickson, may be lost in the shadow of the same-sex marriage dispute being argued the next day. Pretrial detention presents a set of fascinating analytical challenges for the courts, with both practical and theoretical ramifications that are important because by many estimates there are more than 450,000 individuals in pretrial detention in the United States on a typical day. While the overwhelming majority do not face issues of excessive force, complaints by detainees have arisen in almost all of the federal appeals courts.

When the Supreme Court takes up the Affordable Care Act again on March 4, the fate of President Obama’s health-care law will once again be on the line, as it was in 2012. Only this time, the Court will be playing a different role than in the landmark decision of National Federation of Independent Business (NFIB) v. Sebelius. In 2012, the Justices were exercising their power to interpret the meaning of the Constitution, but in the new case, King v. Burwell, they will be wrestling with the meaning of specific words in the statute passed by Congress. There is a tendency in law school to think of big cases as those involving the Constitution – for example Brown v. Board of Education, Roe v. Wade and the upcoming same-sex marriage appeals. Indeed, many law students, perhaps most, never study statutory interpretation or give it only cursory attention. But although it is, perhaps, obvious, it is worth remembering that statutory cases may sometimes have just as much impact, or more, than constitutional decisions.

There are many unusual cases that find their way to the Supreme Court, but none more than the docket of original cases. Start with the names. Original cases, so titled because they originate directly in the Supreme Court, have names like Virginia v. Maryland, a 2003 decision involving rights to the Potomac River; New Jersey v. New York, a 1999 dispute over Ellis Island; or New Hampshire v. Maine, a 1976 ruling on the boundary between the two states for lobster fishing rights. The most recent original case, to be argued on Tuesday, is Kansas v. Nebraska and Colorado, about which more later.

When Congress comes back into session this week, among the unfinished business is the question of what to do about a number of Supreme Court rulings from the spring. Although the most likely answer is that the deeply politically divided Congress will do nothing at all about recent Supreme Court decisions, the question raises important issues about the constitutional relationship between the Court and the legislative branch and the current health of the system of checks and balances. The authority of the Court to strike down acts of Congress as unconstitutional goes back at least to 1803 and Marbury v. Madison, a case studied by most law students in their classes on constitutional law.  Just how that process of judicial review works today, and how Congress responds, is a subject that should interest students of constitutional law, legislation, federal courts, and other subjects.

The recent, rather high-profile mistake and correction by Justice Antonin Scalia in a dissenting opinion raises the question of how the process of publishing decisions – and correcting them – works at the Supreme Court.  The answer centers on an office little known outside the Court, the Reporter of Decisions. The small office with only eleven employees is responsible for technical editing, proofreading and cite-checking all of the Court’s opinions, writing the syllabi that summarize the decisions and accompany their release, and preparing the opinions for final publication.