Welcome

This page is primarily for recommending Supreme Court cases to my undergraduate students.  I won’t mention all cases (see scotusblog for that), but rather will highlight days when at least one case is likely to be interesting and accessible to a casual observer with interests that coincide with my course themes.  If a case intrigues you enough, see this page for tips on attending the argument.  Browse the other pages for more info about me and my courses.

Nov 30 & December cases

The Court returns after Thanksgiving week with a number of major cases, some of which are getting a great deal of attention and others are deserving of more attention. [This blog took a brief hiatus for the early November cases, for personal reasons and because the ACA and other cases were getting plenty of coverage. But I’m back now.]

Monday, November 30 – Trump v. NY

Trump v. New York is partially about the census but most importantly about representation in the House of Representatives. Scotusblog pithily sets the context:

Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.

Amy Howe, Court fast-tracks census appeal, SCOTUSblog (Oct. 16, 2020, 7:13 PM), https://www.scotusblog.com/2020/10/court-fast-tracks-census-appeal/

In 2016, the Court considered a related but distinct issue in a case brought by voters who wanted to require their state to draw voting districts such that each would include a roughly equal number of eligible voters (rather than roughly equal total population). The Court rejected that claim in Evenwel v. Abbott, but held only that basing districts on total population was a permissible system that did not violate the principle of one person, one vote. The Court did not consider whether a state had to choose such a system (“we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population”).

Beyond the issues in Evenwel, this case raises additional important issues regarding the role of the federal government and the census specifically. I recommend perusing at least a few amici briefs in addition to the Scotusblog overview linked above. The briefs collected here notably include NAACP LDEF, Former Directors of the US Census Bureau, and Common Cause.

The second case today involves the Computer Fraud and Abuse Act — a broad law that makes for strange ideological alignments and opposition. In Van Buren v. United States, a police officer is accused of taking money in order to look up license plate information on a system he had legal access to for work purposes. The Electronic Privacy Information Center supports the prosecution, while Electronic Frontier Foundation opposes this reading of the statute.

Tuesday, December 1

First up is an argument that should be getting more public attention:

Nestlé USA and Cargill are alleged to have contributed to a system of child slavery and forced labor in the Ivory Coast for decades. Plaintiffs are six people who were trafficked from Mali and formerly enslaved as children on cocoa plantations in the Ivory Coast as part of this system.

https://ccrjustice.org/home/what-we-do/our-cases/doe-et-al-v-nestl-usa-inccargill-inc-amicus

The case is brought under the Alien Tort Claims Act — a law passed by the first Congress, creating a right for non-citizens to sue for violations of international law that occurred abroad. There has been much controversy in recent decades over the intent and scope of the law. Arguments based in the history of the law run the gamut from a claim that this was really about piracy on the high seas and nothing more, to claims that this was a desire to make the US a place where victims of human rights abuse could come for refuge and to seek justice, to something of a mid-point that we at least did not want the US to be a place where bad international actors could have refuge from accountability. Some human rights advocates have used the ATCA, but the Court has been severely limiting its scope over the past several years. Take a look at this interesting amicus brief by professors of legal history, and at this one by smaller cocoa producers (“Amici are at a competitive disadvantage to companies that source cocoa produced with forced and trafficked child labor”).

The two cases, Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, are consolidated for one hour of argument.

[The second case today, CIC Services LLC v. IRS, involves the Anti-Injunction Act and challenges to tax regulations, and is not one I would recommend for the casual observer.]

Wednesday, December 2

The first argument today is a major case involving House committee access to grand jury materials from the Mueller investigation: Dept. of Justice v. House Committee on the Judiciary. I needn’t say more here; see the Scotusblog overview (or probably a huge amount of news coverage to come closer to the arguments).

The second argument today will likely be overshadowed but is an important and interesting criminal law case. It was only in 2020 that the Court held that criminal convictions require a unanimous verdict. Ramos v. Louisiana. In today’s case, Edwards v. Vannoy, the Court will decided whether that decision “applies retroactively to cases on federal collateral review.”

Monday, December 7

On this anniversary of Pearl Harbor Day, the Court will hear two cases involving property taken during World War II. The legal issues in both cases involve whether the Foreign Sovereign Immunities Act bars lawsuits against Hungary and Germany under these circumstances. The factual contexts in the two cases are summarized by Oyez:

Republic of Hungary v. Simon

Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law.

https://www.oyez.org/cases/2020/18-1447

The Court has accepted cert. on “Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.”

Republic of Germany v. Phillip

In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then.

In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection.

https://www.oyez.org/cases/2020/19-351

For this case, the Court has accepted cert. on:

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Both cases have been consolidated for a total of 90 minutes of oral argument.

Tuesday, December 8

The first case today, Facebook v. Duguid, involves whether Facebook violated federal law by sending automated text messages. Facebook users can enter a cell phone number to be alerted of authorized access attempts. Duguid never signed up for Facebook but started receiving such text messages and could not make them stop. He sued under the 1991 Telephone Consumer Protection Act (TCPA), which prohibits using an autodialer (or automatic telephone dialing system (ATDS)).

TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The case today is essentially a grammatical issue — whether it’s a fair reading to define an autodialer as something that can “store . . . numbers to be called” or only one that can “store . . . numbers to be called, using a random or sequential number generator.” The 9th Circuit held that Facebook’s automated system fit that definition. On the contrary, “Facebook asserts that a system lacking the capacity to randomly or sequentially generate numbers cannot be an ATDS, even if it can store and automatically dial them.” See this useful overview of the legal and commercial issues.

Next up is arbitration agreements — a subject of many Supreme Court decisions in recent years, including in earlier stages of this same dispute, Henry Schein, Inc. v. Archer and White Sales, Inc. In general, the Supreme Court has been interpreting the Federal Arbitration Act to require courts to send many disputes to arbitration if the parties had agreed to arbitrate such disputes. But an open question is who decides if the parties have agreed to arbitration, especially if the contract contains a provision that otherwise appears to grant the arbitrator authority to interpret the meaning of the contract. This dispute in particular involves agreements that incorporate the rules of the American Arbitration Association, which some courts have held is sufficient to constitute agreement to have the arbitrator decide “questions of arbitrability,” but which the Fifth Circuit held was not controlling in this case. This is an important case because of the sheer number of contracts (including online terms of service for which people reflexively hit “agree”) that include arbitration clauses, but the arguments may be a little difficult to follow. The amicus brief by a group of arbitrators and arbitration scholars may help.

Wednesday, December 9

The last set of December cases involves the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis. The legal issues start with the structure: a single agency head who could be removed by the President “for cause,” raising separation of powers issues. Then there is the question of severability; can other agency powers survive if the appointment provisions are unconstitutional? And then there are various factual details surrounding exactly what the FHFA did and how it impacted the Fannie Mae shareholders. (And don’t get excited about all the mention of the “Third Amendment” — it’s not about quartering soldiers, but renegotiated terms between FHFA and Treasury!) In short, an important set of cases but it could be difficult to follow. Oyez has a useful start, then see the Fifth Cir. opinion.

October Arguments by Phone, without RBG

Last Wednesday, the Supreme Court confirmed that the October arguments (cases are previewed here) will be conducted by telephone, following the same method used last spring. I have a separate page with information about online access (live and later), but if you’re just looking for a good way to listen live, then I recommend https://www.c-span.org/supremeCourt/. Arguments begin at 10am Eastern.

When the 2020-21 session opens in October with those telephonic arguments, it will be the first time in 27 years that Justice Ruth Bader Ginsburg (who was confirmed in 1993, about two months before the session opened) will not be a member of the Court. I have no words that can contribute to understanding this loss of such an extraordinary jurist. I am appreciative of the survey of her life’s work that Linda Greenhouse has offered us, and of the thoughtful statements and renewals of commitment from advocacy groups like the Center for Constitutional Rights.

Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG

“Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG” by Mpls55408 is licensed under CC BY-NC 2.0

October 2020 arguments

The Supreme Court term traditionally begins on the “First Monday” of October, and the Court has announced (earlier than usual) a full schedule for that month. (“Full schedule” means Monday through Wednesday for two weeks out of the month.) Exactly what that will look like, of course, is still unknown.  The Court held unprecedented telephone arguments last May, but the virus will decide if we can return to in-person arguments and the Court will decide what adjustments to make if not.

I will make a post about how to watch or listen when we know how the arguments will be conducted.  Meanwhile, some highlights of cases below, including a First Amendment case involving political affiliations of judges, a RFRA challenge to the no-fly list, intellectual property, rape under the UCMJ, and other issues.  Each of these cases had been scheduled for argument last year but were held over when arguments were canceled due to the pandemic.

First Monday, October 5

The session opens with an unusual First Amendment case, Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’” The Brennan Center is heavily involved and has an amicus brief that should provide a good foundation for understanding the facts and legal issues in this case.

The second argument today, in Texas v. New Mexico, involves a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.”  This will be hard to follow and not have much public interest.  However, it does have the allure of being the extremely rare case that begins in the Supreme Court under its original jurisdiction — and this case has been on the Court’s docket, with various disputes, since 1960.  If that’s enough to grab your attention, take a look at this article to get a sense of the current issues and then peruse the extensive docket just to see how actively this dispute has been litigated over the years.

Tuesday, October 6

The first case today is not one I would recommend for a casual observer.  Although the context is important (pharmaceutical drug reimbursement rates), the Court will consider quite technical issues of federal preemption under the Employee Retirement Income Security Act (ERISA). Rutledge v. Pharmaceutical Care Management Association.

The second case, however, is a politically important and legally interesting case:  a challenge to the “no fly list” brought in part under the Religious Freedom Restoration Act. Tanzin v. Tanvir. RFRA has been embraced by conservative advocates and jurists in “culture wars” contexts, so its invocation by Muslims in a national security context should, at the very least, make for interesting arguments. Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

Wednesday, October 7

Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use.  See the amicus brief from the Electronic Frontier Foundation.

Next up is a pair of cases, Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court, that involve technical civil procedure issues but are extremely important for product liability litigation.  When people allege they were harmed by products that are marketed and sold nationwide, plaintiffs’ lawyers have to decide where to file the lawsuit, and where a violation occurred is not always the jurisdiction with courts that are most friendly to such plaintiffs.  Last year, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of San Francisco County put severe limits on “forum shopping” by clarifying the standards of “personal jurisdiction” (the requirement that there be significant connection between the defendant and the jurisdiction of the court where the lawsuit is filed), but some courts have continued to find personal jurisdiction in product liability cases even where the alleged injuries or misconduct did not occur in that state. There’s a useful overview of the legal issues here.

[The Court observes Columbus Day on Monday, October 12]

Tuesday, October 13

First up is argument in two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.

The second case today is not one I would recommend to the casual observer.  Chicago v. Fulton involves a technical bankruptcy issue.

Wednesday, October 14

Torres v. Madrid, addresses an important and unresolved legal issue related to what constitutes a seizure under the Fourth Amendment.  It is unresolved in that lower courts have come to different conclusions where an officer used force to detain a suspect but was unsuccessful; this is known as a “circuit split” and is one thing that makes it very likely the Court will agree to hear a case.  The official “question presented” makes this clear:  “Whether an unsuccessful attempt to detain a suspect by use of physical force is a ‘seizure’ within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a ‘seizure,’ as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.

The last October argument is in Pereida v. Barr, an immigration law case.  Federal immigration law permits non-citizens to challenge their deportation on certain bases, but not if the individual has been convicted of a “crime involving moral turpitude” (CIMT) under state or federal law.  But state statutes are often complex and plea agreements are not always clear, so it is not always obvious whether a CIMT is involved.  In this case, Pereida was charged with attempting to use a false Social Security Number and pled no-contest to violating a statute, some but not all subsections of which could be read to constitute a CIMT. The issue is “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.

About that one Gorsuch opinion….

Yesterday’s Supreme Court decision that Title VII of the Civil Rights Act of 1964 prohibits firing an employee simply because of sexual orientation or gender identity is truly momentous and will mean improved employment security for countless people throughout the country, notably those who live in the majority of jurisdictions with no state- or local-level prohibition on such discrimination. Beyond that wonderful take-away, there is a lot to digest. Much of the mainstream coverage matches my thoughts when I was reading the opinion, but I have a few additional thoughts I’d like to set out regarding Justice Gorsuch’s role and the similarities and differences between this decision and the sexual orientation cases of recent years.

That an opinion prohibiting LGBT discrimination would come from Justice Gorsuch is certainly a major surprise, but Reagan-appointee Justice Kennedy was no obvious ally when he wrote Lawrence v. Texas (striking down sodomy laws) in 2003 or US v. Windsor (striking down the federal Defense of Marriage Act) ten years later, and we were still on the edge of our seats in 2015 before he released the majority opinion in Obergefell v. Hodges (holding that the 14th Amendment requires the state to recognize same-sex marriage). (As an aside, all those decisions were issued on June 26. Yesterday was a break from what some people thought was a tradition, even if based on a very small sample size.)

Still, there is a notable difference in style and tone. The opening paragraph in Lawrence declares that “[t]he instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Obergefell begins “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” and Kennedy gets more poetic and philosophical from there.

In contrast, Bostock begins “[s]ometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” It then adds that “[i]n our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” but that’s as close as we get to recognition of the importance of the rights at issue in these cases. The emphasis — the chosen framework — is on the meaning of the words in the statute; an academic exercise rather than an examination of the principles of rights.

That difference is legally appropriate and, to some extent, required because Kennedy was interpreting constitutional provisions that required him to expound the meaning of “liberty” while Gorsuch was charged with interpreting the meaning of the word “sex” in a Congressional statute. Moreover, other cases had already made clear that “sex” includes sex stereotyping and sexual harassment, and that the statute prohibits other kinds of discrimination that might be given a label that is not one that actually appears in the text of the statue. It is very hard to see an intellectually satisfying way to say LGBT discrimination is not sex discrimination if we’ve already accepted that it is unlawful to discriminate against a woman for being a “tomboy” (to say nothing of the fact that we also (almost) universally accept that it is discrimination on the basis of race even if the person has no bias against any individual’s race but only interracial marriage).

So the Gorsuch opinion is rather bland as judged by its analysis and certainly by its rhetoric. His approach is methodical: there’s a statute that uses specific words, we have established analytical frameworks for how we decide what those words mean as well as significant relevant precedent, and so Gorsuch went through a routine analytical process and came to a logical conclusion.

What is remarkable is that he did not shy away from his own conclusion. It is reassuring that he would rule in a way that almost certainly is against his personal political views and it is deeply troubling that it’s remarkable to us that a Supreme Court Justice appointed by Trump actually cares about analytical consistency and intellectual honesty.

This most certainly does not mean that he is likely to side with what remains of the liberal wing of the Court as a general matter. It doesn’t even mean that he has moderated his views or shifted to an understanding of the law that is closer to those who believe in a “living constitution” or employ other analytical frameworks that more often lead to progressive conclusions. It only means that he might not engage in the kind of tortured logic on display in the dissenting opinions in order to avoid a particular outcome when his own legal analysis happens to bring him to a conclusion that is also one a progressive (or even someone like Posner) might arrive at through different means.  (My initial reaction to Obergefell five years ago also noted that Kennedy got there through a narrow framework that was less valuable for other LGBT rights issues.)

We’ll have to see if this lasts, and it will only be relevant in rare instances. The way Gorsuch approaches other legal issues (such as the free exercise clause and how it applies the the ministerial exception, to mention just one case that should be decided later this month) almost certainly won’t wind up pulling him to conclusions that conflict with his ideology. Regardless, it’s nice to be surprised in this way. Scalia used to occasionally rule in ways that contrasted with how people thought of him, Roberts has repeatedly done so now, and it looks like there’s another Justice who just might surprise us from time to time.

Decision days

There are 3 more decision days scheduled in this term (on Mondays until the end of June) and about 18 decisions still to come (depending on whether consolidated and similar cases get one or multiple decisions, and whether some cases get resolved without a decision).  Amy Howe has a handy list of all the unresolved cases, organized by argument date and with some information about most likely author when available. It’s possible that the Court will extend its usual term and issue decisions into July, but that seems unlikely.

Decision days used to be attended by court-watchers and people who wanted to be there for an historic moment when a decision came down in a major case. There were smaller lines to get into the courtroom compared to argument days.  The Justices would take the bench and announce the decisions, and sometimes a dissenter would make a statement as well. It could be a really meaningful experience.  But because of COVID-19 concerns, the Court is not taking the bench this month.  Instead, orders are released on its website and to the press — one-by-one, spaced out by 10 minutes.  Scotusblog.com offers a live-blog starting at 10:00, quickly reacting to each decision when it is released.

There is something of a history of decisions in cases involving sexual orientation being released on June 26, at least when it involves an expansion of rights.  That was true for Lawrence v. Texas back in 2003 (striking down sodomy laws) and the marriage equality cases in both 2013 and 2015 (even though the 26th in those years did not fall on a Monday, the usual day for decision announcements), while the fractured Masterpiece Cakeshop decision was released June 4, 2018.  For this term, the cases involving whether Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity were argued back in October and are the only cases from October that have not yet been resolved. And the next-oldest cases involve the rescission of DACA.  Everything else argued in 2019 has been resolved.  So it may well be that the Court won’t issue decisions in these controversial cases until the last-scheduled decision day on June 29 or a yet to be announced decision day on Friday the 26th.

There are several important and interesting cases still to be resolved beyond the Title VII cases above, but I’ll highlight just three more and recommend Howe’s page (linked above) for details on the others.  June Medical Services (the Louisiana abortion law) was argued in March.  Little Sisters of the Poor (the Affordable Care Act’s “birth-control mandate”) was argued in the first week of May.  And the cases involving subpoena’s for Trump’s tax and financial records weren’t argued until May 12, the second to last day of oral arguments this term.

Live streaming

Two historic firsts this morning:  the Supreme Court heard oral arguments in a case via teleconference and it allowed the public to listen in live.  A few quick notes on what I found interesting and tips if you’re considering listening in for other cases this month.  (Notes on the cases are here; this Wednesday and next week are going to be particularly interesting.)

  • The best way to get the arguments appears to be c-span.org/supremeCourt/ .  Other likely sites I checked either weren’t streaming the arguments or had poor audio quality.  Also, c-span followed the arguments with an interesting virtual-panel discussion moderated by National Constitution Center’s Jeff Rosen.
  • The Justices are taking turns!  For anyone who is used to the back-and-forth questioning, this is truly bizarre.  Arguing counsel is allowed to make an opening statement uninterrupted for about 2 minutes, then the Chief Justice asks questions for about 4 minutes, and then each Justice, in order of seniority, gets no more than 4 minutes.  Yes, this also means they ran a little over the usual 30 mins/side. I don’t know if the Chief will become more or less strict with the timing, but this orderly turn-taking is the plan.
    • Justice Thomas used his time and asked multiple questions!  He has previously said that he so rarely participates in oral arguments because he wants to hear arguing counsel make their case without interruptions, so maybe this new format is more acceptable to him.
    • You definitely lose something. Justices can’t follow-up on others’ questions (except as continuation of the prior question) and the “flow” makes less sense, since the questions are based on whose turn it is rather than a topic of inquiry. But it did seem to allow arguing counsel to offer more structured points (although it’s hard to say with a sample size of two; they might have just been especially good litigators).

May cases

For the first time ever, it will be possible to listen to Supreme Court arguments as they happen from outside the building. C-SPAN has confirmed that it will provide live coverage and identify the Justice who is speaking. Presumably SCOTUSBlog will stream live as well. (If you can’t listen live, there will still be after-the-arguments options. From the Court’s website, you can get transcripts the same day as the arguments and the audio is released that Friday.  In addition, on Oyez you can get transcript-synchronized audio; it’s not available quite as immediately, but the transcript scrolls and highlights automatically as you listen.)

Next week brings cases involving trademarks, compelled speech, the ACA birth control mandate, and robocalls as free speech.  The following week is even more contentious, with Trump subpoenas, faithless electors, and religious exemption from nondiscrimination laws. 

Monday, May 4

For the first day of teleconference arguments, the Court is starting with just one case, US Patent & Trademark Office v. Booking.com. It may not have terribly broad allure, but it’s an interesting trademark case. You cannot trademark a generic term, but can you trademark “[generic term].com”? For a useful overview, see this “Brief amici curiae of Trademark Scholars in support of neither party.”

Tuesday, May 5

Also just one case today, United States Agency for International Development v. Alliance for Open Society International, Inc. It is an important case involving First Amendment limits on conditions for federal funding. Congress originally provided funding for HIV intervention programs subject to two restrictions: (1) no funds “may be used to promote or advocate the legalization or practice of prostitution,” and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.”  In 2013, Alliance for Open Society won in an earlier Supreme Court case with the same name, which held that the second restriction “violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). The case today asks whether that principle protects only this US-based organization or extends “to legally distinct foreign entities operating overseas that are affiliated with” the organization.

Wednesday, May 6

The Affordable Care Act’s birth-control mandate is the issue in two consolidated cases that will be argued first today, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania. These are cases that would have drawn huge crowds, long lines, and demonstrations in front of the Court in pre-covid times.  Scotusblog has a very helpful overview. Briefly, it is important to note the administrative law concerns that will complicate the argument.  The ACA left many details to the Department of Health and Human Services to enact through administrative rulemaking.  Initially, those rules required health insurance plans to include birth control at no cost to the women but exempted religious institutions and included an “opt-out” system for religious nonprofits. The 2014 Hobby Lobby decision gave for-profit religious companies access to that opt-out. There was then a challenge to that opt-out process, but with Justice Scalia’s death and the prospect of a 4-4 split on such an important issue, the Supreme Court sent the cases back in hopes of a compromise. And now, HHS under the Trump administration has rewritten the rules, allowing any employer with a religious or moral objection to opt out.  New Jersey and Pennsylvania have challenged those Trump administration rules as inconsistent with the ACA and as violating other principles of administrative procedure, particularly since the final rules relied on interim rules that did not allow for the usual public comment period. The Court will need to address a number of technical administrative procedure questions as well as the substantive.  So I strongly recommend taking some time to understand the argument preview before trying to follow along with the oral arguments. 

The second argument today is robocalls as free speech.  Back 1991, the Telephone Consumer Protection Act outlawed automated calls to cell phones, except for emergency calls or with the consumer’s prior consent — and importantly, the law was amended in 2015 to allow debt collection calls for federally guaranteed loans. 47 U.S.C. § 227. In Barr v. American Association of Political Consultants, a group that would like to use automated calls for political purposes is challenging the law on First Amendment grounds, arguing that by making exceptions for certain types of calls, the law discriminates on the basis of content (which is highly disfavored and subject to strict scrutiny under longstanding First Amendment doctrine).  Interestingly, Public Citizen is supporting the law, and their amicus brief is worth reviewing along with the scotusblog overview.

Monday, May 11

The first case today, McGirt v. Oklahoma, is an interesting if rather narrow question of tribal sovereignty: “Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.” 

Most attention today will be on the second argument, a pair of consolidated cases involving the “ministerial exception” to employment discrimination laws, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. The cases today involve teachers at Catholic schools who allege they were discriminated against on the basis of age and disability.  The issue is whether the teachers are “ministers,” within the meaning of the exception that the Court has previously held the First Amendment requires in order to prevent excessive state governance of churches. There’s a useful NY Times article about the cases, and an interesting perspective from Clergy and Laity United for Economic Justice in their amicus brief

Tuesday, May 12 — Trump subpoenas 

Two major arguments today.  First are the cases involving Congressional subpoenas to banks and accounting firms seeking records related to President Trump and his businesses.  In Trump v. Deutsche Bank, the House Committee on Financial Services and the House Permanent Select Committee on Intelligence sought records as part of an investigation into possible foreign influence in U.S. elections; in Trump v. Mazars, the House Committee on Oversight and Reform subpoenaed an accounting firm for documents as part of its investigation into possible reform of government ethics laws. In both cases, Trump is asserting that the committees do not in fact have a “valid legislative purpose.”  In essence, this is about presidential immunity from congressional oversight. The backdrop includes Supreme Court cases that expressed concern with the executive branch’s ability to function but ultimately sided with Congress in disputes with Presidents Nixon and Clinton. 

The second argument also involves Trump business records, but in Trump v. Vance they were sought by a grand jury. Grand jury records are sealed, but it appears to involve the Manhattan District Attorney’s investigation into hush money to silence Stormy Daniels during the 2016 campaign, and whether any of those payments led to false business and tax filings in violation of state law. Trump sued to block the subpoena to his accounting firm, claiming that the president is immune from criminal investigations while in office.  In rejecting that argument, the Second Circuit relied heavily on US v. Nixon

Scotusblog has a useful overview as well as a symposium reflecting a range of views. 

Wednesday, May 13 — “faithless electors”

Both cases today involve “faithless electors” (individuals at the Electoral College who do not vote according to the state’s popular vote) at the 2016 election.  They have not been consolidated; each will be argued separately for one hour. 

A few electors from Washington cast a vote for Colin Powell even though Hillary Clinton had won the state.  Washington fined them $1,000.  The issue in Chiafalo v. Washington is “whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.” 

Similarly, a few electors from Colorado voted for John Kasich.  Colorado responded by replacing them with electors who would vote as instructed. The issue in this second case, Colorado Department of State v. Baca, is “(1) whether a presidential elector who is prevented by their appointing state from casting an electoral-college ballot that violates state law lacks standing to sue their appointing state because they hold no constitutionally protected right to exercise discretion; and (2) whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.”

Again, Scotusblog has a useful overview and a symposium with a range of views. 

Rescheduled and Postponed Cases

There has been a lot of attention to yesterday’s Supreme Court announcement that it will conduct a teleconference to hear oral arguments in some cases that had been scheduled to be heard in March and April. Currently, the Court is contacting the parties and deciding which cases will be heard on which dates (May 4, 5, 6, 11, 12 or 13). I’ll provide a blurb about each case when we know when they will be heard, as well as details about how to listen in. It appears that – for the first time ever – the Court will give direct access to media outlets, and that they will in turn be able to provide public access.

Meanwhile, it’s worth noting the cases not yet rescheduled. There are 11 cases that had been on the Court’s schedule before the COVID-19 disruptions, are not on yesterday’s press release, and now instead appear to be postponed until some time in the next term (after the Court goes on summer recess and then returns on the first Monday in October). They are:

  • Two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.
  • Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use.  See the amicus brief from the Electronic Frontier Foundation.
  • An important “no fly list” case brought in part under the Religious Freedom Restoration ActTanzin v. Tanvir.  Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

  • Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’”  The Brennan Center is heavily involved in such issues and has an amicus brief that should provide a good foundation.
  • Torres v. Madrid, “Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.
  • Pereida v. Barr, “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.
  • The remaining cases are ones that I would not have highlighted on this site, since they won’t be of much public interest or really accessible to the casual observer: Chicago v. Fulton (a technical bankruptcy issue); Texas v. New Mexico (a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact”); Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court (technical civil procedure issues); and Rutledge v. Pharmaceutical Care Management Association (an ERISA preemption issue).

Confirmed: Arguments canceled through end of April

The Court confirmed today that it would not hold arguments this month. After cancelation of the March arguments, the next set of arguments had been scheduled for April 20-22 and 27-29.

The Court is continuing to do business.  Briefs are being filed in pending cases and the Justices are meeting by telephone and issuing decisions in cases that were argued earlier in the term.  (And Justice Ginsburg is still using the gym!)

Today’s press release raised the prospect of coming up with something other than in-person arguments for final consideration of postponed and remaining cases if it is not possible to reschedule and resume meetings soon:  “The Court will consider a range of scheduling options and other alternatives if arguments cannot be held in the Courtroom before the end of the Term.”  That would be truly unprecedented — conference calling did not exist the last time the Court suspended arguments, due to the Spanish Flu in 1918.

March arguments postponed

Arguments that had been scheduled for the last two weeks of the month are postponed. “The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.”

But the Court also offered us the best lines in any institution’s response to the virus: “The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”