Zeroing in

As term ends, little to recap from the 7th Circuit

De Novo Review

Michael Scodro

Michael Scodro is a partner in the Supreme Court and appellate practice at Mayer Brown.  Previously, he served for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and currently serves as chair of the American Bar Association's Council of Appellate Lawyers.

As the U.S. Supreme Court term ends this month it’s time for a flurry of annual recaps and analyses of the term’s most significant decisions and, as always, a deep dive into a battery of numerical metrics summarizing the court’s work. Included in the latter category are end-of-term totals on the number of cases the Supreme Court decided on the merits from each of the federal courts of appeals. From the 7th U.S. Circuit Court of Appeals, that number this term is particularly interesting — it’s zero.

The court still may accept a case from the 7th Circuit before the end of June and dispose of it without full briefing and argument, as the court does in a small number of cases each term. But the likelihood of such a summary disposition in the term’s few remaining weeks (much less one from a particular circuit) is small. What we do know is that the court’s argument calendar for the 2018-2019 term is full, without a single case out of the 7th Circuit scheduled for traditional, plenary review with briefing and oral argument.

To be sure, there’s nothing earth-shattering in this fact as a purely statistical matter. The court accepts very few cases — typically fewer than 80 in recent years — of the thousands presented for its review each term. With such low overall numbers, hitting zero now and then is not extraordinary in the abstract. But this would mark only the second term in the past 15 when the 7th Circuit would not send a single case to the Supreme Court for merits review. (For statistics on the number of cases the Supreme Court decides per term from each circuit, see SCOTUSblog’s “Stat Pack Archive.”

What’s more, the complete absence of 7th Circuit cases this term contrasts sharply with last term, when our circuit’s seven cases accounted for 9% of the court’s output. Not only was this a large figure in a numerical sense (second only to the number that came to the court from the much larger 9th Circuit) but at least two of those seven were also among the most headline-grabbing of the term.

One of them, Janus v. American Federation of State, County & Municipal Employees, No. 16-1466, addressed the question of whether the First Amendment bars public unions from charging non-members in the bargaining unit a fee for work the union does as the unit’s collective-bargaining representative.

The issue had reached the court repeatedly in the years preceding Janus, most recently two terms earlier in Friedrichs v. California Teachers Association, No. 14-915, where the court failed to answer the First Amendment question by splitting evenly, 4-4, on the issue following Justice Antonin G. Scalia’s death. By the 2017-2018 term, Justice Neal M. Gorsuch had joined the court, which then ruled 5-4 in Janus that the challenged union fees violated nonunion members’ free speech rights. The decision, overruling a 1977 Supreme Court decision upholding such fees, was closely watched and became the subject of massive national media attention.

Another case arising out of the 7th Circuit that term was Epic Systems Corp. v. Lewis, No. 16-285, involving an extremely high-profile employment-arbitration dispute. Employees in Epic and two consolidated cases (from other circuits) challenged agreements with their employers requiring future disputes to be resolved in individualized arbitration rather than class or collective actions. In a highly publicized decision, Gorsuch wrote for a five-justice majority rejecting the employees’ claims.

The court concluded that the individualized-arbitration provisions did not run afoul of language in the National Labor Relations Act protecting employee rights to engage in “concerted activities for the purpose of … mutual aid or protection,” and the court therefore held that the provisions were enforceable — a significant holding in the employment and arbitration spheres.

With attention-grabbing cases like Janus and Epic among the several that made their way to the Supreme Court from the 7th Circuit in the 2017-2018 term, the complete absence of appeals from our home circuit this term is all the more conspicuous.

So how is next term stacking up? As of the date this column went to press, the court had accepted 10 cases for plenary briefing and argument for next term, none of which hails from the 7th Circuit. But the court has a long way to go before filling its calendar for next term, and statistically speaking the court is highly likely to hear one or more from our circuit. Maybe even a blockbuster or two.