October 2021 Arguments

The Court has not yet said how arguments will be conducted when it returns from summer recess on “First Monday,” October 4, for its 2021 term. There had been considerable speculation that it would return to in-person arguments, but that was before we saw the full impact of the Delta variant. I’ll update this page when I can, or check the Court’s page on covid announcements. edit: has now announced that although the public will not be allowed in the courtroom this calendar year, the arguments will be in-person with counsel and Justices in the courtroom, so presumably following the old style of questioning.

On the substance of argument options, Scotusblog has an interesting symposium; I fully agree with Lyle Dennison’s critique of the way arguments had been conducted by phone, although others at that symposium feel differently. See the link at the top of this page for “online access.”

Regardless of how the arguments will be conducted, there are some interesting and important cases in the first block of arguments. Highlights include the CIA state secrets privilege, an abortion case (although a preliminary procedural issue this month), and the Boston Marathon bomber’s death penalty appeal.

First Monday, October 4

The first case this term is the unusual case in which the Court has original jurisdiction — a dispute between states. That gives it a certain interest, but I’m afraid that anyone not invested in the dispute (or hydrogeology in general) might find it a bit less compelling than the typical Supreme Court argument. Mississippi v. Tennessee involves groundwater contained in the Middle Claiborne Aquifer; “Mississippi believes the City of Memphis is stealing its groundwater.” That’s the opening line from the Special Master’s report, which is a good place to start if you want to understand the dispute.

Next up is a criminal law case, Wooden v. U.S. The Armed Career Criminal Act provides for enhanced penalties for someone in illegal possession of a gun if they had “three previous convictions . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In this case, the defendant committed theft from 10 different units in a mini-storage facility. The Court has accepted cert. on “Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were ‘committed on occasions different from one another’ for purposes of a sentencing enhancement under the Armed Career Criminal Act.” NACDL has an interesting amicus brief arguing that whether individual criminal acts are committed on the same “occasion” or not is a factual question that should be resolved by a jury rather than the judge.

Tuesday, October 5

Today’s first case involves federal habeas review of criminal convictions. Two important concepts for this case: “harmless error” and AEDPA’s “clearly established Federal law” standard. Harmless error means the trial court allowed something legally wrong to occur but the outcome would have been the same regardless. In this case, the defendant was shackled during trial, which the Michigan state courts agree was unconstitutional but found to be “harmless error.” The federal courts disagreed, noting that the defendant was claiming self-defense and being shackled might have made a juror less likely to believe that claim (so it was not harmless but rather may have prejudiced the jury). Michigan now says, even if the state court was wrong about harmless error, there needs to be a separate finding that the reasoning was contrary to clearly established Federal law. The Sixth Circuit says that question was “subsumed” in the harmless error analysis (failing to recognize prejudice to the defendant is, necessarily, contrary to clearly established law). There is a “circuit split” on this — several other federal courts of appeal have held that there needs to be a further finding beyond what the 6th Circuit said was sufficient to require a new trial. I’d suggest reading the 6th Circuit’s opinion.

Today’s second case, Servotronics, Inc. v. Rolls-Royce PLC, is an interesting factual context: “Servotronics, which manufactured a valve used in a Rolls-Royce Trent 1000 jet engine installed on a Boeing 787 aircraft, was a defendant in an arbitration proceeding that Rolls-Royce brought in London, England, seeking damages for an engine fire that occurred during a test flight of a Boeing 787 in the United States.” (That’s from the helpful scotusblog preview, which is a good place to start.) However, the legal question is one of technical civil procedure. There’s a federal statute that empowers federal courts to authorize subpoenas to support discovery in foreign “tribunal” proceedings; the question is whether that extends to foreign arbitration.

Wednesday, October 6

Just one case today, but it’s a big one — the CIA state-secrets privilege case, United States v. Zubaydah. Zubaydah currently is being held in Guantanamo, as an alleged former associate of bin Laden. Previously, he says he was tortured at a CIA dark site in Poland, and he “intervened” (became a party to) a criminal investigation by Polish authorities into the CIA operations there. Zubaydah wants to subpoena two CIA contractors. The CIA claimed “state secrets” as to all information he was seeking. The 9th Circuit held that some information was properly classified a state secret, but that certain information was subject to disclosure. This is definitely the shorthand version of all this — see this useful article for the full story, as well as the 9th Cir decision.

[The Court is closed on Monday, Oct. 11 for Columbus / Indigenous Peoples Day]

Tuesday, October 12

This is the first abortion case of the term, but on a preliminary procedural issue. Scotusblog has a succinct write-up:

The Kentucky dispute, Cameron v. EMW Women’s Surgical Center, began as a challenge to a law that generally bans the use of the “dilation and evacuation” method to perform abortions, a procedure commonly employed during the second trimester of pregnancy. Kentucky’s health secretary initially defended the law in court, but declined to continue to do so after the U.S. Court of Appeals for the 6th Circuit struck down the ban.

Daniel Cameron, the state’s attorney general, then asked the 6th Circuit for permission to join the case to defend the law, but the 6th Circuit rejected that request. Cameron appealed to the Supreme Court, asking the justices to weigh in on whether he should have been allowed to intervene. And if so, Cameron continued, the justices should also rule on whether the case should be sent back to the lower courts for another look after the Supreme Court’s decision last year in June Medical Services v. Russo, in which the justices struck down a Louisiana law requiring doctors who perform abortions to have the right to admit patients at a nearby hospital – but which, Cameron wrote, “undercuts” the 6th Circuit’s decision to invalidate the Kentucky law.

In a brief order on [March 29], the justices granted Cameron’s request to decide whether he should be allowed to join the case, but they turned down his request to weigh in on whether the case should go back to the 6th Circuit for reconsideration in light of June Medical. 

  • Amy Howe, Justices to decide whether Kentucky attorney general can defend abortion lawSCOTUSblog (Mar. 29, 2021)

The second case today, Hemphill v. New York, is factually complex and involves exceptions to the confrontation clause in a trial that resulted in a murder conviction. In general, the US Constitution’s confrontation clause requires that evidence against a defendant be introduced by a person who can be subjected to cross-examination. In this case, however, the defense counsel mentioned a prior proceeding against another individual in an attempt to suggest that someone else was the shooter. The trial judge ruled that this “opened the door” for the prosecution to introduce details of those proceedings that would otherwise be inadmissible (except through testimony of someone subject to cross-examination). See the NY Court of Appeals decision – and be sure to read the dissent – as well as this summary.

Wednesday, October 13

A big one today — the Boston Marathon bomber death penalty appeal, U.S. v. Tsarnaev. The Court’s cert. questions are clear enough:

Issue(s): (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.

There will be a lot of attention on this case, and a lot of emotion. It’s worth reading the 1st Circuit opinion, which found that there were reversible errors in the death penalty proceedings and ordered a new trial on those counts only, noting “Because we are affirming the convictions (excluding the three § 924(c) convictions) and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”

The last October argument is a complex question about Social Security benefit calculations, with an administrative deference kicker. I.e., it won’t be an easy one to follow for the casual observer…. Briefly, it has to do with workers who have some earnings that are “covered” (taxed and calculated in determining retirement benefits) and “uncovered.” The formula is set up so lower-income workers get a higher “return” on their SSA taxes when benefits are calculated. So someone with uncovered earnings as well might be treated as a low-wage worker even if they are not. The response is the “windfall elimination provision,” which in turn has various exceptions and complications. And this case asks “whether a civil service pension received for federal civilian employment as a ‘military technician (dual status)’ is ‘a payment based wholly on service as a member of a uniformed service’ for the purposes of the Social Security Act’s windfall elimination provision.” See the 6th Cir. opinion for details.

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.  

March cases

In the last two weeks of March, the Court will hear an extremely important case involving First Amendment claims in the abortion context, another gerrymandering case, and other cases.

Tuesday, March 20

[Monday’s cases involve technical issues of limited interest or accessibility for the casual observer.]

Abortion is before the Court today, and this always draws a large line for the arguments and a spirited set of crowds out front.  National Institute of Family and Life Advocates v. Becerra involves the California Reproductive FACT Act, which, briefly, requires licensed medical clinics to post information regarding free and low-cost abortion services available through the state and requires pregnancy counseling services that are not licensed medical centers to state in all advertising that they are not healthcare providers. The clinics claim this is a form of compelled speech that violates the First Amendment. California asserts that this falls within the scope of constitutionally permissible regulation of professional services, and is needed to inform women of available services and to prevent women from being confused as to the nature of the “clinic.”

Interestingly, in a number of states, the mandated speech goes the other way, requiring abortion clinics to post information designed to dissuade women from choosing to abort. There’s an interesting article in Slate exploring the problems that could arise for such laws if the clinics were to win this case.  Scotusblog also offers a symposium of competing views.  And, of course, there are a huge number of amici briefs.

The Solicitor General submitted an amicus brief supporting neither side.  It then sought (and was granted) leave to participate in oral arguments, and both sides agreed to give up 5 minutes each.  Very unusual!

The case is scheduled for the usual hour, but it is the only case on the docket today and will probably run a little long. Lines will form early–probably days early… But there will also be protests and press conferences happening out front, which are interesting to observe or join.

Wednesday, March 21

Upper Skagit Indian Tribe v. Lundgren is a technical issue of state court jurisdiction and tribal sovereignty.  Briefly, both the Lundgrens and the tribe assert ownership over a strip of land.  The Lundgrens brought suit to “quiet title” (have a court decide who has ownership) and the tribe asserted the state court had no jurisdiction over the dispute.

These arguments will be difficult to follow, but it is worth reading up on the case and attending if these issues interest you. A key concept is “in rem” jurisdiction — not jurisdiction over the party, but over a thing (in this case, not the tribe but a piece of land).  Start with the overview here, then read the Washington Supreme Court decision, and then select some briefs to read as well.

Wednesday, March 28

[Monday’s and Tuesday’s cases are not recommended.  However, Tuesday’s cases involve sentencing guidelines (Hughes and Koons); specific and technical issues regarding them, but still may be of interest to some.]

Partisan gerrymandering is once again before the court this morning.  Benisek v. Lamone has been before the Supreme Court before; in 2015, the plaintiff won the right to a 3-judge panel, and now, the decision of that panel is up for review. The case involves the Maryland 6th, which had been a “safe” Republican seat until redistricting rendered it a “likely” Democratic seat.  (Oyez overview; Common Cause fact sheet.) In addition to the links above, read at least a couple of the many briefs filed in the case before attending.

Feb 29 – March 2 cases

One of the most anticipated arguments of the term–involving abortion rights–is scheduled for Wednesday.   The Court also takes up gun control for persons convicted of domestic violence and the death penalty on Monday.

Monday, February 29

The first case will be viewed as a gun control issue in the context of domestic violence, but involves questions of Congressional intent where a federal law is triggered by a state law conviction.  Federal law prohibits firearm possession by someone who has been previously convicted of a crime of domestic violence.  Such a criminal act generally evokes intentional conduct, but 34 states have reckless assault laws.  The question is whether Congress intended for the federal prohibition to extend to convictions for laws that required only reckless conduct. Full write-up of all the issues in Voisine v. US is here.

The second argument is in a death penalty case.  The official question presented in Williams v. Pennsylvania describes the case well:  Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday, March 1

The cases today are important but fairly limited in scope.  Nichols v. US asks whether federal law requires a sex offender to update his registration in the state where he was convicted when he resides outside the US.  Husky International Electronics v. Ritz involves the “actual fraud” bar to discharging debts in bankruptcy.

Wednesday, March 2 – abortion

It has been eight years since the Supreme Court has directly taken on questions relating to laws that restrict access to abortion.  States may regulate abortion providers, just as they may regulate other medical practices, but laws that place an “undue burden” on a woman’s ability to access abortion are unconstitutional.  Regulations that improve safely and health typically survive the “undue burden” test, but in this case, providers argue that the restrictions Texas put into place do not actually enhance health and safety, despite the state’s claimed purposes.  The Court has accepted cert on the question of whether the Fifth Circuit erred by “refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health.”  Linda Greenhouse has co-authored a useful overview of this case and the history of the Court’s approaches to abortion rights and restrictions.

This case will draw a huge crowd.  It will be worth going to the Court just to see (or be part of) the crowds, demonstrations, and press conferences.  Demonstrations will start around 8:00am, may calm down a bit during the 10:00 argument and as people come and go, and then there will be more renewed demonstrations and press conferences when the arguing counsel exit the Court, probably around 11:30. If you want to get into the courtroom, you’ll need to get there very early; I wouldn’t be surprised if enough people camp out overnight to fill the court.  More than 80 amicus briefs have been filed, and the Solicitor General has been granted permission to participate in oral argument (in addition to counsel for the clinic and for Texas, the parties to this case).  I don’t see an order extending time for the argument, but no other case is scheduled for this day and I would expect the argument to run a little past the usual hour.