Stephen Miller of Cozen O’Connor.

While Judge Brett Kavanaugh awaits confirmation, the U.S. Supreme Court will spring back into action this month with a roster of eight. The first batch of cases chosen for review lack the “wow” factor of several of last term’s cases, but they nonetheless present several interesting issues.

Here are some of the cases in which the court will hear oral argument in the coming months:

Criminal Law

  • Gamble v. United States (11th)— whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
  • Timbs v. Indiana (Ind.)—whether the Eighth Amendment’s excessive fines clause is incorporated against the states by the Fourteenth Amendment.
  • Madison v. Alabama (Circuit Court of Mobile County)—whether the state may execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense.
  • Bucklew v. Precythe (8th)—whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Constitutional Law

  • First Amendment: Nieves v. Bartlett (9th)—whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. Section 1983.
  • Fifth Amendment: Knick v. Township of Scott, Pennsylvania (3d Cir.)—whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state-court remedies to ripen federal takings claims.
  • Eleventh Amendment: Franchise Tax Board of California v. Hyatt (Nev.)—whether the Supreme Court should overrule Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent.


  • Merck Sharp & Dohme v. Albrecht (3d Cir.)—whether a state-law failure-to-warn claim is pre-empted when the FDA rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury to determine why the FDA rejected the proposed warning.
  • Virginia Uranium v. Warren (4th)—whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining) but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings).

International Law

  • Jam v. International Finance (D.C. Cir.)—whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments possess under 22 U.S.C. Section 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. Sections 1602-11.
  • Republic of Sudan v. Harrison (2d Cir.)—whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C Section 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States.


  • New Prime v. Oliveira (1st)—whether a dispute over the applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration; and whether the Section 1 exemption is inapplicable to independent contractors.
  • Henry Schein v. Archer & White Sales (5th)—whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”


  • Class Action: Frank v. Gaos (9th)—whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable and adequate.”
  • Products Liability: Air & Liquid Systems. v. Devries (3d Cir.)—whether products liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.
  • Immigration: Nielson v. Preap (9th)—whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
  • Antitrust: Apple v. Pepper (9th)—whether consumers may sue for antitrust damages anyone who delivers goods to them, even where they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
  • Securities: Lorenzo v. Securities & Exchange Commission (D.C. Cir.)—whether a misstatement claim that does not meet the elements set forth in Janus Capital Group v. First Derivative Traders can be repackaged and pursued as a fraudulent-scheme claim.
  • Intellectual Property: Helsinn Healthcare S.A v. Teva Pharmaceuticals USA (Fed. Cir.)—whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.
  • Procedure: Nutraceutical v. Lambert (9th)—whether equitable exceptions apply to mandatory claim-processing rules that can excuse a party’s failure to timely file a petition for permission to appeal, or a motion for reconsideration, within the Rule 23(f) deadline.
  • Environmental: Weyerhaeuser v. U.S. Fish & Wildlife Service (5th)—whether an agency decision not to exclude an area from critical habitat under the Endangered Species Act because of the economic impact of designation is subject to judicial review.
  • Employment: Mount Lemon Fire District v. Guido (9th)—whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, or whether the ADEA applies instead to all state political subdivisions of any size.

Early this month, the court will announce additional cases that it intends to consider in the coming months. Combined with the potential addition of a new Justice, activity at the court promises to heat up very soon.

Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.