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Bump Stocks, Trump Ally Highlight Court’s ‘Long Conference’ (1)

Sept. 28, 2022, 8:45 AMUpdated: Sept. 28, 2022, 3:53 PM

The US Supreme Court was reconvening on Wednesday to review cases that have piled up all summer, including challenges to a federal ban on bump stocks and MyPillow founder and Trump supporter Michael Lindell’s attempt to get a defamation suit dropped.

The justices usually only decide to hear a handful of the cases they take up in their private conference, also known as the long conference, despite a backlog of petitions that can top 1,000. The rest of the cases likely will be denied.

The court tries to “wipe the slate clean” before arguments start Oct. 3, said Mayer Brown partner Nicole Saharsky, a veteran advocate.

But the “sheer number of matters before the justices make it harder for any one item to get focus, specialized attention from the justices,” said Adam White, a senior fellow with the American Enterprise Institute.

There are a number of possible reasons for why so few cases are granted. “It’s early enough in the term that the justices may be pickier about cases to fill out the argument calendar,” Skadden partner Shay Dvoretzky, another advocate, said.

While the court’s docket for the new term so far includes cases on affirmative action, voting rights, and LGBTQ rights, blockbuster appeals aren’t being considered this week. Still, there are notable cases to watch.

  1. Bump Stocks: A pair of cases challenge the Trump administration’s ban on “bump stocks” following the Las Vegas mass shooting in 2017. Though not in what University of Virginia law professor Daniel R. Ortiz calls the “heartland of Second Amendment cases,” the appeals focus on a foundational principle of administrative law known as the Chevron doctrine. The cases have the potential to touch every aspect of American life. Aposhian v. Garland and Gun Owners v. Garland.
  2. Patent Eligibility: This is another pair of cases, these dealing with patents. The patent bar has been asking the Supreme Court to sort out what makes an invention eligible for patent protection, a doctrine one of the parties called “perilously fractured” and responsible for “chaos” in the IP world. The court, however, has turned down a number of cases on this issue , including one last term despite the recommendation from the Justice Department for the court to intervene. There are other patent cases that the justices could add from the long conference, considering they typically hear at least one patent case per term. Interactive Wearables v. Polar Electro Oy and Worlds Inc. v. Activision Blizzard Inc.
  3. Greenhouse-Gas Emissions: This is another technical case about interstate greenhouse-gas emissions. There are a number of “friends of the court” urging the justices to take the case, including a handful of mostly GOP-led states that argue without the high court’s intervention, “a single State’s judiciary set climate-change policy for other States.” Suncor v. Boulder.
  4. MyPillow Founder: MyPillow founder and Trump supporter Michael Lindell is attempting to get a defamation suit brought by the makers of a voting machine used in the 2020 presidential election against him dropped. Not only did Lindell’s claims of election fraud make headlines, but the issue of whether there should be a heightened standard to prove defamation of so-called public figures has piqued the interest of some justices. MyPillow, Inc. v. US Dominion, Inc.
  5. Filter Teams: The case, about the propriety of using Justice Department “filter teams” to assess potentially privileged materials, has taken on new significance following the August raid and seizure of documents from former President Donald Trump’s Mar-a-Lago estate. Trump received a “special master” to review certain documents that otherwise would have been vetted by a Justice Department filter team. If granted, the case could clarify when using such a group of government lawyers who are not part of the investigation is appropriate and when a special master is required. A former federal judge was appointed special master in the Trump case. Korf v. US.
(Adds Adam White comment in paragraph 4. The previous version corrected date of first argument to Oct. 3. )

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com