The Cases On The Court's Issuance Calendar

The Court will issue several term-end decisions this week. Three of the cases on the issuance calendar will reshape the practice areas they cover in ways the contemporary commentary has not adequately characterized. The three are Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., Hamm v. Smith, and M & K Employee Solutions, Inc. v. Trustees of IAM National Pension. Each presents a distinct doctrinal question. Each has consequences beyond the immediate parties that the briefing has, in different ways, addressed too narrowly.

The Court's deliberation pattern, as visible in the November and January oral arguments and in the procedural posture of each case across the term, points toward decisions that consolidate doctrinal positions the Court has been developing in adjacent matters. The decisions will not, in any of the three cases, produce surprise dissents or reorderings of the typical voting alignments. The decisions will produce, in each case, the kind of clarifying rule that practitioners in the affected areas have been waiting for.

Havana Docks And The Helms-Burton Architecture

Havana Docks Corp. v. Royal Caribbean Cruises, Ltd. addresses the application of Title III of the Helms-Burton Act to a U.S.-based entity whose pre-revolution Cuban concession was nationalized by the Cuban government in the 1960s. The doctrinal question is whether the entity's residual rights, under the original 1928 concession, survive in a form that permits Title III recovery against parties whose post-revolution use of the Port of Havana the entity characterizes as trafficking in confiscated property.

The Court's likely holding, on the close reading of the briefs, will clarify the temporal architecture of Title III claims in ways that have been the practical question for trafficking-claim plaintiffs since the statute's Title III provisions were activated in 2019. The clarification will affect not only the immediate parties but the broader population of trafficking-claim litigation that has accumulated in the federal courts of the Southern District of Florida. The decision will likely reduce, rather than expand, the practical reach of Title III claims, on a textualist reading of the original concession's expiration clause.

Hamm v. Smith And The Method-Of-Execution Doctrine

Hamm v. Smith addresses the application of the Eighth Amendment to a specific method-of-execution challenge brought by an inmate of the Alabama Department of Corrections. The doctrinal question is whether the inmate's challenge, which proposes an alternative method of execution that the state has declined to adopt, satisfies the Court's framework for method-of-execution claims as articulated in Glossip v. Gross in 2015 and Baze v. Rees in 2008.

The Court's likely holding will refine the alternative-method framework in ways that the lower courts have been struggling to apply with consistency. The refinement, on the available signals from oral argument, will address two specific procedural questions that recent Eleventh Circuit and Sixth Circuit decisions have answered inconsistently. The procedural questions involve the inmate's burden to demonstrate the state's feasibility of adopting the alternative method, and the standard of review the federal courts apply to the state's feasibility determination.

The refinement will not, on the available signals, produce a meaningful expansion of method-of-execution-claim availability for the underlying inmate population. The refinement will produce greater predictability for the lower courts adjudicating the existing class of claims, and will likely reduce the litigation friction the inconsistent application has been generating.

M & K Employee Solutions And Withdrawal Liability

M & K Employee Solutions, Inc. v. Trustees of IAM National Pension addresses the multiemployer pension withdrawal liability framework under the Employee Retirement Income Security Act and the Multiemployer Pension Plan Amendments Act of 1980. The specific question is whether plan actuaries calculating withdrawal liability for employers exiting an underfunded plan may use actuarial assumptions current as of the plan year of withdrawal, or whether the actuaries must use assumptions established at the time the plan's funding shortfall was measured.

The doctrinal question is narrow. The practical consequence is large. The withdrawal liability framework is one of the principal exit-cost components for participating employers in multiemployer pension plans, and the choice of actuarial assumptions can produce material variation in the calculated liability. The plaintiffs in the case, four employers who withdrew from an underfunded plan in 2018, argued that the plan's use of assumptions less favorable than the plan-year assumptions inflated their withdrawal liability by amounts that exceed the standard expectations under prior circuit precedent.

The Court's likely holding, on the close reading of the oral argument, will permit plan actuaries to use up-to-date assumptions in assessing withdrawal liability costs. The holding will clarify, in plain reading, that the underlying statutory framework does not require the actuaries to use stale assumptions in a manner that distorts the contemporary economics of plan funding. The holding will favor the plans in the immediate case and will, in the broader population of withdrawal liability disputes, shift the analytical posture in the direction the multiemployer plan administrators have been advocating for since the 2014 circuit-split development.

The Voting Alignment Across The Three Cases

The voting alignment across the three cases, on the available signals from oral argument, will follow patterns the practitioners in each area can predict with reasonable confidence. Havana Docks will likely produce a narrower majority than the alignment the recent international-law cases have shown, with the Chief Justice and Justices Roberts, Barrett, and Kavanaugh joined by Justice Sotomayor on the textualist concession-expiration argument, against a dissent grouping that combines Justices Thomas and Alito on the structural argument with Justices Kagan and Jackson on a separate equity-based argument.

Hamm v. Smith will likely produce a more familiar majority, with the Chief and Justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh on the procedural-refinement holding, against a dissent by Justices Sotomayor, Kagan, and Jackson focused on the broader Eighth Amendment principle. M & K Employee Solutions will likely produce the broadest majority of the three, with most or all of the Justices joining the actuarial-assumption holding, on the strength of the statutory-text and ERISA-policy arguments the multiemployer plan trustees have made consistently throughout the case's procedural posture.

The Forward Read

The forward read is that this week's decisions will produce three clarifying rules whose practical consequences will, in each affected area, exceed the immediate parties' particulars. Practitioners in Helms-Burton litigation, in capital-defense method-of-execution claims, and in multiemployer pension withdrawal liability disputes will need to update their analytical posture against the holdings the Court will issue. The updates are the work that follows the decisions.

The text admits of no other interpretation in each case once the holdings are read. The doctrinal architecture the Court has been building in adjacent areas produces the outcomes the close reading of the briefs anticipates. The forward read is the forward read. The decisions will be the decisions. The practitioners will adjust. The architecture of constitutional and statutory interpretation that the Court has been articulating will, in the aggregate of these three decisions, be the architecture the country lives under.