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 who’s 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.”

Week of March 23

[EDIT: The March arguments are postponed.]

The Supreme Court building “is closed to the public” but “will remain open for official business.”  It’s not entirely clear what this means for oral arguments, and particularly for members of the public or members of the Supreme Court Bar who wish to observe the arguments.  As of posting, there are no docket entries suggesting that next week’s cases will not be heard as scheduled.

Assuming arguments go forward — and regardless of whether or not you could attend — this may be a good time to learn about the availability of audio recordings and transcripts!  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 (the transcript scrolls and highlights automatically as you listen). It’s a great service. Scroll to the bottom of the page to see the latest; go to the case page then click the link in the left column. I’m not sure how long they take, but seem to be fairly quick to produce this after the audio is released.

There are some important and interesting cases coming.  I’ll note next week’s cases now, and add a new post for the week of March 30 when there’s more certainty about what’s happening in response to concerns about the pandemic.

Monday, March 23

Two consolidated cases (one hour total) are up first, and involve 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.

Next up is an interesting trademark case, US Patent & Trademark Office v. Booking.com.  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, March 24

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 Act, Tanzin v. Tanvir, is the second argument.  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, March 25

Two First Amendment cases today.  First is 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.

Finally, United States Agency for International Development v. Alliance for Open Society International, Inc., involves 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.

February & Early March Cases

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania.  Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25 

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended.  She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision.  Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case.  There’s also an interesting NYT article about the case. 

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed.  It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process.  The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape.  But in 2013 he was convicted of receiving stolen property, which triggered a removal process.  An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.”  The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA.  The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.”  The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies.  But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process.  That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue.  It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
          There’s a lot of politics surrounding this case.  Elizabeth Warren had a very significant role in the creation of the CFPB.  Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue).  And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018). 

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains.  A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly.  There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments. 

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles.  If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law.  It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close.  Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views. 
          This case will draw a huge crowd.  Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before.  So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance.  If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court.  Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front.  During and immediately after arguments are typically when the crowds outside are biggest and most active.  The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long.  With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.