October 2022 Term

The Court returns from summer recess, as always, on “First Monday” — October 3 this year. It typically hears arguments on Monday, Tuesday, and Wednesday in two weeks of each month. As of this post, the Court has released schedules for October and November. We know some of the cases that will be heard later this term (and will be scheduled for argument as the written briefing gets completed) and we’ll have to watch for additional grants of cert. in the coming months.

Also as of this post, there has been no indication of any change in public access to arguments. I am hoping for a return to access to the courtroom for members of the public so we can watch the justices and arguing counsel, but I also hope the online audio will continue regardless. See my page on how to access arguments online.

Below are highlights for arguments in the first two weeks. Important cases on the scope of the Clean Water Act, the Voting Rights Act, states’ rights to regulate factory farming, wrongful convictions, and even Andy Warhol and Prince! Looking ahead, the much-anticipated affirmative action case involving Harvard and asian students, and another involving UNC, will be heard on October 31, but I will write up them and the November cases in my next post.

First Monday, October 3

First up is an important case concerning which waters are regulated by the Clean Water Act. In the specific dispute, Sackett v. EPA, the plaintiffs were prevented from constructing a house over wetlands on their property. The CWA gave the EPA authority over all “navigable waters,” 33 U.S.C. § 1251, but that was in turn defined as “waters of the United States,” 33 U.S.C. § 1362. Although the Court has considered the status of wetlands before and held that at least some wetlands were within CWA coverage, there was not a majority on exactly what the test should be to determine which wetlands were covered and which were not. Scalia and three other Justices held that the CWA encompasses wetlands that have a “physical connection” to “relatively permanent, standing or flowing bodies of water.” Rapanos v. U.S., 547 U.S. 715 (2006). Concurring, Justice Kennedy characterized the required relationship as a “significant nexus,” such that the wetlands, “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” The Ninth Circuit has applied the Kennedy test, noting that the Scalia opinion did not explicitly reject that version as inconsistent. In this case, the Court granted cert. on “Whether the U.S. Court of Appeals for the 9th Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.” The case has generated a huge amount of interest from the groups you would expect (some 50 amicus briefs), but for an interesting perspective, see this brief raising concerns about tribal interests.

Next up is a bit of an odd but interesting case: what happens to uncashed “Moneygram Official Checks?” Under federal law, if “a money order, traveler’s check, or other similar written instrument (other than a third party bank check) on which a banking or financial organization or a business association is directly liable” is not cashed, then the financial institution has to pay (escheat) those funds to the state in which it was purchased. Disposition of Abandoned Money Orders and Traveler’s Checks Act, 12 U.S.C. § 2503. In the absence of that statute, the usual rule is that the money goes to the payee’s state or, if unknown, the financial institution’s state of incorporation. Moneygram believed the federal statute did not encompass its “Official Checks,” it didn’t record the residence of the payees, and so it sent the unpaid funds to its state of incorporation, Delaware. Thirty other states disagreed and sued Delaware. This puts the lawsuit under one of the handful of cases in which the Constitution gives the Supreme Court “original jurisdiction,” so there is no lower court decision but rather a recommendation from the Special Master assigned to review the facts and arguments and recommend a resolution to the Court. Note: in what is sure to be a source of confusion for casual listeners, the Special Master refers to the law as the FDA, for Federal Disposition Act. Nevertheless, that report is probably the best source to get a sense of the legal issues involved. That report sided with the states suing Delaware, and you can see Delaware’s objections and other filings on the Delaware v. Pennsylvania and Wisconsin case page.

Tuesday, October 4

A major Voting Rights Act argument is up first, in two consolidated cases (one hour total, but expect it to run quite long), Merrill v. Milligan and Merrill v. Caster. The question presented in both cases is “Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.” Section 2 prohibits voting practices that discriminate on the basis of race, and it specifically provides that a violation “is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [the VRA] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” The case has had a number of preliminary rulings, with the plaintiffs winning an injunction in January but the Supreme Court blocking that in February. This case will get a lot of attention so I won’t write more, except to particularly recommend the Brennan Center summary and their brief.

The second case involves compelling personal circumstances and facts in a highly technical/procedural dispute involving filing deadlines and equitable tolling for VA claims. In Arellano v. McDonough, Arellano was serving on board the USS Midway when it collided with the Panamanian merchant ship Cactus in 1980. The VA recognizes that he suffered disabling mental health issues as a result, but those conditions prevented him from recognizing his disability and filing for benefits until 2011. There is a one-year statute of limitations for service-related injuries, so the VA refused to award retroactive benefits. 38 U.S.C. § 5110(b)(1). However, Arellano invokes the doctrine of “equitable tolling” which can toll (pause) the limitations period under some circumstances. The VA ruled that equitable tolling is not available in claims for retroactive benefits, and the Federal Circuit Court of Appeals was equally divided on that question (which results in affirming the VA; you need a majority of appellate court votes to reverse, or else the lower judgment stands). And so that’s the personal backstory behind the official and technical question presented: “Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.”

Wednesday, October 5

Today is Yom Kippur, which officially is not recognized as a Court holiday but no arguments are scheduled.

Monday, October 10

This is a legal holiday (Columbus/Indigenous Peoples Day).

Tuesday, October 11

First up is the legality of California’s Prop 12, which prohibits the sale (in California) of pork unless the pigs were raised and slaughtered under specified humane conditions, in light of the dormant commerce clause. In broad strokes, a state unconstitutionally intrudes on Congress’s authority to regulate interstate commerce when it enacts legislation that directly conflicts with federal law or if it excessively burdens interstate commerce by imposing regulations that Congress has chosen not to impose. As the NAAG explains (and the full write-up is helpful and worth reviewing), the pork producers argue that “compliance with Proposition 12 will require pork producers (who are overwhelmingly out-of-state) to engage in massive and costly alteration to existing sow housing nationwide” and that it fails the traditional balancing test required for state laws that burden interstate commerce. The case and argument could be interesting politically — states’ rights and animal rights are on the same side, with business and federal power together on the other! National Pork Producers Council v. Ross.

Next is a criminal procedure issue in the context of DNA testing and claims of wrongful conviction, Reed v. Goertz. The NAACP LDF has a useful summary of the case and a compelling brief, but the official question presented is a technical one: whether the countdown for the statute of limitations to ask the federal courts to intervene starts when the first state court denies your DNA testing request, or not until after the highest state court denies your appeal. Or more fully, “Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).”

Wednesday, October 12

Art comes to the Supreme Court! Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith involves the “Prince Series” — Warhol works based on Lynn Goldsmith’s photographs of Prince in concert. Goldsmith claimed that Warhol infringed her copyright by copying her works in the course of his creative process. The trial court found this to be “fair use,” most importantly because the Warhol paintings were “transformative works” and were not “market substitutes” that would have harmed the market for Goldsmith’s photos. But the Second Circuit Court of Appeals disagreed on all points and reversed. The Court will consider “Whether a work of art is ‘transformative’ when it conveys a different meaning or message from its source material (as the Supreme Court, U.S. Court of Appeals for the 9th Circuit, and other courts of appeals have held), or whether a court is forbidden from considering the meaning of the accused work where it ‘recognizably deriv[es] from’ its source material (as the U.S. Court of Appeals for the 2nd Circuit has held).”

The last argument in the Court’s first two-week block involves overtime pay for highly compensated salaried professionals. Helix Energy Solutions Group, Inc. v. Hewitt involves a supervisor for an offshore oil and gas company who was paid by the day (at least $963/day) and earned more than $200,000 each year, but often worked more than 40 hours/week. The Department of Labor has a helpful factsheet on the Fair Labor Standards Act, overtime pay, and exemptions for highly compensated employees. As the Fifth Circuit explained in siding with employee, “earning a certain level of income is necessary, but insufficient on its own, to avoid the overtime protections of the FLSA. The employee must also be paid on a salary basis, as well as perform certain duties. And unless those tests are met, the employee is ‘not exempt … no matter how highly paid they might be.’ . . . It is the salary-basis test that is sharply contested in this case.” That court concluded that a day rate is not a salary, and so he was not exempt from the overtime pay requirement. The case will turn on the precise interpretation of and interplay between two regulations concerning the salary-basis test, 29 C.F.R. § 541.601 and § 541.604.

October 2017

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering.  I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available.  (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018.  The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22.  So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses.  The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges.  In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act.  Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.”  Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term.  In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts.  The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role.  A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC.  The first involves probable cause and qualified immunity.  Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful.  In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house.  Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet.  Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission.  They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity.  The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws.  Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol.  He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited.  A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car.  He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims.  He then appealed, but the appellate court held the guilty plea waived his right to appeal.  The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?”  This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii.  I don’t have anything to add to the extensive commentary on these cases….  Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives.  It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.”  I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act.  The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas.  The Court has accept cert. on the question of whether corporations can be sued under the ATCA.  Scotusblog has some good background.