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.

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.  

April cases – final arguments of the year

This month, the Court completes oral arguments on all cases scheduled for this term.  I particularly recommend cases involving offensive trademarks, access to corporate information via FOIA, and the addition of a “citizenship question” to the Census.

Monday, April 15

The first case today reopens debates about offensive trademarks.  In 2017, the Supreme Court held in Matel v. Tam that the clause in the 1946 Lanham Act prohibiting registration of marks that “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead,” 15 U. S. C. §1052(a), was unconstitutional. It is possible to engage in commerce and even sue to protect your brand without registering the mark with the Patent and Trademark Office, and this is commercial (rather than political) speech so a lesser standard arguably applies, but the Court held that under any possible standard, the government has no legitimate interest in suppressing speech merely because it is offensive.

The vote was 8-0 to strike down the clause, but there were two opinions joined by 4 Justices each, so there is some confusion about how far a majority is willing to go in undoing other aspects of the Lanham Act.  Which is where this case, Iancu v. Brunetti, comes in.  Monday’s argument involves a dispute involving the apparel company FUCT, which was denied registration based on a similar provision, pertaining to “immoral” or “scandalous” trademarks.  It is a potentially closer case because obscene material gets less First Amendment scrutiny. There is useful background here and an argumentative recitation of parties’ positions here.

Today’s second case is not one I would ordinarily recommend to a casual observer, but may be worth staying for. Emulex Corp. v. Varjabedian involves interpretation of the various clauses in the Securities and Exchange Act’s § 14(e): “[i]t shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or to engage in any fraudulent, deceptive, or manipulative acts or practices, in connection with any tender offer.” 15 U.S.C. § 78n(e). Most Circuits have held that the final clause’s explicit mention of fraud should be imported to require that the misconduct described in the earlier clauses also are actionable only if there was deliberate deception, but the 9th Circuit in his case held that negligence was sufficient.

[Cases on Tuesday and Wednesday are not one’s I would recommend for most observers.]

Monday, April 22

The Freedom of Information Act’s “exemption 4” provides that government agencies should not release “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Circuits have come to different conclusions about what is required for information to be deemed “confidential.” The court has suggested it may resolves those splits in Food Marketing Institute v. Argus Leader Media.  A useful overview of the case is here, but I also recommend at least glancing at a couple of amicus briefs from each side — the case has, predictably, drawn considerable interests from watchdog groups and trade associations.

Today’s second argument is a technical procedural question but an important one: “Whether Title VII’s administrative-exhaustion requirement is a jurisdictional prerequisite to suit, as three circuits have held, or a waivable claim-processing rule, as eight circuits have held.” Fort Bend County, Texas v. Davis.

Tuesday, April 23

The addition of a “citizenship question” to the Census is before the Court today. Department of Commerce v. New York is one of the more contentious cases this term; I won’t say much about it here since it has received so much publicity. The Court first accepted 2 issues:

(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq;
(2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker — including by compelling the testimony of high-ranking executive branch officials — without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis;

But in March it added another question:

The parties are directed to brief and argue the following additional question: Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the U.S. Constitution, art. I, §2, cl. 3.

The case has generated an extraordinary number of amicus briefs.  Scotusblog offers a useful symposium with a range of views.

There is also an afternoon (1pm) case today that involves an important issue:  Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement. Mitchell v. Wisconsin.

 

February cases

Tuesday, February 19

The only case scheduled for argument today is relatively technical but may be of interest to students of statutory construction or those interested in the patent law or the status of the Post Office.  The Leahy-Smith America Invents Act (AIA) created a Patent Trial and Appeal Board with authority to review patents that were awarded by the Patent and Trademark Office if a “person” challenges the validity of the patent. Return Mail v. USPS asks whether the Postal Service is a “person” in this context.  Royal Mail had its patent invalidated by a post-grant review initiated by the Post Office, and now asserts that the Board should never have conducted the review because the AIA did not define “person” to include government agencies and because the Dictionary Act, which provides definitions for laws that lack specific definitions, defines “person” to not include government agencies.  However, the AIA also uses “person” in other contexts in which Congress clearly meant to include government agencies.  So the case will offer an academically interesting battle of cannons of statutory construction, and will have implications for who can serve as a watchdog for invalid patents.  (On the later point, the Electronic Frontier Foundation has an interesting amicus brief in support of the Post Office.)

(Since this is the only case today, it’s possible the argument will run a little longer than an hour, but I wouldn’t expect it to go more than a few minutes over.  The Court had been scheduled to hear the dispute regarding discovery to uncover the true motive for adding a citizenship question to the next Census, but that was put on hold and may well be removed from the docket.)

Wednesday, February 20

The only case scheduled for today involves technology licenses that a debtor has rejected in a bankruptcy proceeding.  Debtors are permitted to “reject” contracts in bankruptcy proceedings, but this has very different implications if it is a simple sales contract (in which case the debtor is liable for contract damages, ie any added expense the other party incurs as a result of having to find a different partner) or something like a contract that gives rights to use, or even exclusive rights to use, a piece of technology or trademark.  It is a very technical area of the law and I would not recommend this case for a casual observer.  But if interested, there’s a useful article about it on Scotusblog.

Monday, February 25

A really interesting case about the “state actor” test in the context of First Amendment rights and (a bit more obscurely!) public access television.  The Constitution generally cannot be violated by private individuals or companies because it regulates only what the government may or may not do — but there are two significant qualifiers on that general rule.  First, if the government creates and retains control over a private company, then the constitution applies.  In Manhattan Community Access Corp. v. Halleck, the City created a private company that controls access to the public access cable channels but appoints only two of the thirteen board members.  Second, the constitution might apply to private companies that perform a “traditional public function.”  But that is a rather fraught doctrine (it’s been declared “in retreat” since the 1970s; and consider private prisons, for example, as one amicus brief in this case touches upon).

I think this should be a really interesting case to attend, but read this overview and get a sense of the arguments by reading at least a few of the filings.  Notably, the Electronic Frontier Foundation filed an amicus brief in support of neither party, including a section “In Praise of Unmoderated Platforms” followed immediately by a section arguing that “Moderated Platforms Are Also Valuable.”

Tuesday, February 26

Both cases today involve interpretation of criminal law statutes.  The first, US v. Haymond, involves sentencing based on facts that were not found beyond a reasonable doubt or by a jury.  Haymond was convicted of possession of child pornography, served time, and then was released on probation subject to a requirement that he not commit another crime.  He was then found to have been in possession of child pornography again, but this was determined by the judge alone and based on a “preponderance of the evidence” standard (more likely than not; not beyond a reasonable doubt).  The court not only revoked his parole but sentenced him to an additional term of imprisonment.  He argues this violates his rights to due process and trial by jury.  There’s a useful discussion of these issues here.

The second case, Mont v. US, is a bit more technical, but certainly important.  It involves how to count (or pause counting) the days that someone has to serve probation:  “Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.”

Wednesday, February 27

This is an important day for people interested in religious liberty questions, and particularly the establishment clause. American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association involve cross-shaped memorials on public land.

Establishment clause doctrine has been criticized by all sides as unwieldy and unclear — we’re not even sure what the standards are, much less how to apply those standards in a given case.  Some precedent says the primary concern is to avoid “excessive entanglement” of church and state, but it’s not always clear what is or isn’t excessive, and anyway, there are other cases that suggest we should be focused on different concerns. Two of the “questions presented” for today highlight this pretty clearly:  “whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.”

Scotusblog has a helpful “In Plain English” article as well as some great posts from a variety of perspectives in an online symposium.

I would get there very early for this argument.  Alternatively, forget about getting into the courtroom and just plan to take in the dueling demonstrations and press conferences that I’m sure will be taking place on the sidewalk in front of the Court.  These usually start around 8am for drive-time radio coverage and keep going until a while after the lawyers exit the courthouse, which wil be around 11:30.  The two cases are consolidated, with a total of 70 minutes scheduled for arguments (but they’re the only cases today so could run a few minutes over).

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.

February cases

In the last two weeks of the month, the Court will hear arguments regarding union agency or “fair share” fees, political t-shirts worn to the voting booth, subpoenas to US companies for information stored on foreign servers, and other important issues.

Tuesday, February 20
(the Court observes Presidents Day on Monday)

Currier v. Virginia is a fairly technical issue regarding double jeopardy.  The doctrine of “issue preclusion” aka “collateral estoppel” prevents re-trial of a fact that was necessarily determined by a jury in a prior case.  So even if the defendant is not charged with the same crime, it might still constitute double jeopardy if the second criminal offense relies on a factual question that a jury resolved in favor of the defendant in an earlier trial.  In this case, the defendant was accused of stealing guns.  He had a prior felony conviction, so it would have been illegal for him to even possess the guns.  With his agreement, the state first tired him for larceny and breaking and entering, and severed the charge of “felon in possession of a firearm.”  The jury found in favor of the defendant in the first trial, but the state proceeded to try him for possession anyway, and this time convinced the jury.  The issue is whether issue preclusion, and thus the double jeopardy clause, applies even where the defendant agreed to sever the charges.  The arguments on both sides are described in scotusblog’s preview.

The second case today, City of Hays, Kansas v. Vogt, involves the right against self-incrimination, interestingly in the context of alleged police misconduct.  Under threat of being fired, a police officer told his supervisors how he came into possession of a knife while on duty.  He was then charged with a range of crimes, and although the charges were dropped before trial, the officer’s statements regarding the knife were used against him during a probable cause hearing. When he had trouble finding another job, he sued the City for violating his constitutional rights.  The Fifth Amendment prohibits being “compelled in any criminal case to be a witness against [oneself].”  It’s fairly settled that threat of termination is compelled, but is use during a preliminary proceeding covered by the amendment? The City is being represented by the UVA Law School’s Supreme Court Litigation Clinic, which has an useful story about the case. The Court accepted cert. on the question “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.”  A collection of government employers filed an amicus brief urging the Court to hold that the city cannot be held liable for the decision of the prosecutors; it will be interesting the see if the Court views this as within the scope of the question they agreed to review.

Wednesday, February 21

Both cases today will be a bit technical for the casual observer, but nevertheless should be interesting.

First, Rosales-Mireles v. U.S. involves waiver and plain error, in the context of illegal immigration. The defendant pleaded guilty to “illegal reentry” (returning to the US after being deported).  He had a prior criminal history, which increases the sentence.  However, the trial court counted a prior conviction for misdemeanor assault twice.  The government concedes that this was in error and placed him in the wrong sentencing guidelines category (77-96 months instead of the correct 70-87 months; he got 78 months). However, there was no objection at the time of sentencing, which means that an appellate court may only correct it if it constitutes “plain error.”  In the Fifth Circuit, this means not only obviously wrong but is the kind of error “that would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”  The Circuit held that this error was not of that nature, and declined or order re-sentencing. The Supreme Court has accepted cert. to resolve whether that final condition for plain error review is appropriate.

For the second case, Dahda v. U.S., the official question presented is probably sufficient:  “Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.”

Monday, February 26

An extremely important case involving union “agency fees” or “fair share fees” is up first today, Janus v. AFSCME. In order to prevent discrimination based on union membership, the National Labor Relations Act requires that all employees be covered by a union contract — so workers are not getting different wages or working conditions depending solely on whether or not they joined the union.  But negotiating, administering, and enforcing a contract costs money.  Therefore, the Supreme Court held in Abood v. Detroit Board of Education (1977) that even employees who decline to join the union can be required to pay the union for these expenses.  Unions are required to calculate their spending precisely, and bill non-members an appropriate fraction of the membership fee; only money collected from voluntary members may be spent on non-workplace activities (like electoral campaigns).  This principle has been under attack in recent years, and many people predicted that Justice Scalia would have been the fifth vote to reverse these precedents if he hadn’t died after cert. was granted in Friedrichs v. California Teachers Ass’n but before a decision was issued.  The resulting 4-4 split left in place the Circuit court’s decision, which had ruled for the union based on those longstanding precedents.  This case brings the issue back to the Court. Scotusblog has a useful overview as well as an online symposium with a range of views.  This is a very important case and will draw a lot of attention — and early and long lines to get inside, but also press conferences and protests out front.

Ohio v. American Express is an antitrust case, arising out of differences in how AmEx, compared with Visa and MasterCard, set prices and work with merchants.  The Second Circuit sided with AmEx, but an unusually wide range of organizations are lining up on the other side.

Tuesday, February 27

The clash of new technology and old legal presumptions is on display in US v. Microsoft.  The federal government served a subpoena on Microsoft at their Washington state headquarters for emails of a suspected drug dealer. It agreed to turn over records stored in the US, but not the content of the emails, which were stored in servers in Ireland.  There is a general presumption that US laws do not apply outside the US (extraterritorial application), and the Court has never resolved how this relates to the Stored Communications Act or technology of this nature in general.  There are lots of interesting and nuanced concerns about effectiveness of our laws but the need to avoid putting international actors in a conflict with other countries’ laws.  Scotusblog has an overview and an online symposium with some really compelling insights.

An absurd example of First Amendment retaliation hits an 11th Circuit doctrine in Lozman v. City of Riviera Beach, Florida.  During the public comment portion of a City Council meeting, Mr. Lozman was instructed by a council member not to discuss his opposition to an eminent domain plan, and he was arrested when he persisted.  The transcript of an earlier meeting revealed a plan by council members to “intimidate” him.  He sued, but lost the trial and sought a new trial on various grounds.  The 11th Circuit held that the police officer had probable cause to arrest him for disrupting a public meeting, and therefore there could be no lawsuit for unconstitutional retaliation or any other grounds, because of the Circuit’s rule that a finding of probable cause bars any other such claims.  See this overview and the ACLU position.

Wednesday, February 28

First Amendment protection for political expression at the voting booth is the issue in Minnesota Voters Alliance v. Mansky:  “Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.”  Again, Scotusblog has a useful overview and interesting symposium.

January Cases

January oral arguments include two First Amendment cases (determining whether a regulation is “content-based” and the constitutionality of restrictions on judges soliciting campaign contributions), two discrimination cases (the powers of the EEOC and whether disparate impact claims may be brought under the Fair Housing Act), government fraud, and whether police may extend a lawful traffic stop while they investigate a hunch for which they have no probable cause.

Monday, January 12

An important First Amendment question is presented in Reed v. Town of Gilbert, involving the line between content-based and content-neutral legislation.  Many municipalities try to regulate signs posted in public view, apparently out of concern that outdated signs could clutter the community.   Gilbert, Arizona, distinguishes among signs for specific events (which can only be posted for 12 hours before through 1 hour after the event), electoral campaign signs (which can be posted up to 60 days before and until 15 days after the election on which the candidate or ballot measure appears), and ideological signs (which can be left up indefinitely).  The regulation is being challenged by the Good News Community Church, which wanted to advertise the hours and location of its services.  The City did not fine them, but warned them that their signs were in violation because they were posted outside the window for signs involving specific events.
Doctrinally, since there is no indication that the church was being treated differently based on the religious content, the primary issue is whether this is a content-based restriction.  As a general rule, government may not treat some speech differently than others because of the content of what is being communicated.  This relates to but is broader than viewpoint discrimination, at least according to many advocates, because the goal is to prevent government from creating a hierarchy of speech.  Nevertheless, the courts below upheld the legislation because there was no indication that it was designed to suppress discussion of any ideas or viewpoints.  The Supreme Court will have to decide if the usual prohibition on content discrimination applies when government wants to make this sort of distinction among types of signs.

The second argument today is a more technical issue of regulation of the natural gas market.  Nevertheless, if you’re attending the First Amendment case, you might consider staying for the second argument, so take a look at the Solicitor General’s brief to get a sense of the issues.

Tuesday, January 13

Kellogg Brown & Root Services v. U.S. ex rel. Carter is a little arcane, but may be of interest to some of you.  The False Claims Act allows a private individual to file a lawsuit on behalf of the government if the U.S. has been defrauded; if successful, the “relator” (that’s the rel. in “U.S. ex rel. ___” in the case caption) gets to keep a portion of the funds.  To get this benefit, you have to be the “first to file,” but in this case, another lawsuit had already been filed but was then dismissed on technical grounds.  So the first question in this case is whether an individual can stand as the relator even if they weren’t “first,” if there nevertheless is no other pending lawsuit.  Beyond that, the case was filed after the statute of limitations ran, but the Wartime Suspension of Limitations Act sets aside the statute of limitations for claims of fraud against the government when the U.S. “is at war.”  So are we “at war” despite the lack of a declaration of war, and does that Act apply to private plaintiffs who are acting as relator in government fraud cases?

The Equal Employment Opportunity Commission (EEOC) investigates claims of unlawful discrimination.  If it finds a violation, it is required to enter into mediation with the company before filing a lawsuit, but it apparently has complete discretion to accept or reject settlement, with no guidance or standards specified in the laws empowering the EEOC.  Here, the company (which was accused of sex discrimination) argued that the filing of a federal lawsuit was improper because the earlier conciliation efforts were not pursued “in good faith” by the Commission.  The trial court agreed, but the Circuit held that in the absence of legislative standards for what the Commission must do during conciliation, it would be improper for the courts to question the agency’s assertion that it had mediated in good faith.  The case is Mach Mining v. EEOC.

 [Cases on Wednesday are not recommended for the casual observer.  The Court is closed on Monday the 19th in observance of Martin Luther King Day.]

Tuesday, January 20

The first case this morning, Armstrong v. Exceptional Child Center, Inc., involves the enforceability of the Medicare provision requiring providers to be reimbursed at rates that “bear reasonable relationship” to the costs.  The provider documents cost increases, but the state refused to raise the reimbursement rate because of budget concerns.  The law does not specify that the provider can sue over this, but the Ninth Circuit found an implied “private right of action,” which is a doctrine that the Court generally has been limiting in recent years.  Arguments will be somewhat technical, but it’s an important issue.  Read the summary here and follow the link for more.

An interesting case involving the First Amendment and judicial conduct is the second case to be argued today.  Although federal judges are appointed for life, judges at all levels in many states must run for office in a general election; in fact, the great majority of states require at least some of their judges to be elected.  To try to maintain judicial independence, a number of states have enacted laws or state bar rules of professional conduct that permit campaign committees for judges but prohibit the judge from personally soliciting contributions.  But that is, of course, a direct restriction on speech.  The case, Williams-Yulee v. Florida Bar, also will have implications for campaign finance laws beyond judicial elections.

Wednesday, January 21

It looks like the Supreme Court will at last decide whether or not “disparate impact” claims may be brought under the Fair Housing Act.  The court had accepted two cases involving this issue earlier, back in 2011 and again earlier this term, but both settled before oral arguments.  The FHA prohibits denial of housing to a person “because of race, color, religion, sex, familial status, or national origin.”  Certainly, any form of individualized, intentional discrimination would be “because of” the person’s protected status and therefore illegal; this is termed “disparate treatment.”  But what about policies that are facially neutral as to status but in reality will almost always be obstacles for members of a certain demographic?  Does enforcing a policy that has a “disparate impact” constitute denial of housing “because of” race or other protected status?
This case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, involves the allocation of tax credits and the impact on housing voucher programs.  Ordinarily, landlords are legally entitled to decline to accept Section 8 housing vouchers, under which the government pays part of the rent for low-income renters — only landlords who have received a tax credit must accept vouchers.  The state agency allocated most tax credits in predominantly non-white neighborhoods. The effect of that policy is that white neighborhoods have comparatively few landlords who are required to accept housing vouchers.  This frustrated the community group that works for racial and socioeconomic integration, which filed suit alleging that the tax credit allocation policy had a disparate impact on minorities who were seeking housing in historically white neighborhoods.  Follow the link for a more thorough discussion of the case and importance of the disparate impact doctrine.

Today’s second case, Rodriguez v. US, involves dog-sniff searches after a traffic stop.  The commands of the 4th Amendment mean that warrantless searches and seizures are suspect, but the Court has found that it is not unconstitutionally “unreasonable” for police to stop drivers without a warrant if they have probable cause that a crime is being committed.  The question is whether police can continue to “seize” a driver after the officer has finished the stop that had probable cause (e.g., has or should have finished writing the speeding ticket) in order to do something like wait for a canine to arrive and search for drugs based on a “hunch” (not arising to probable cause).  The Court has held that searches and questioning that prolong the driver’s time being held beyond what is needed for the crime that justified the stop initially are permissible, even without further probable cause, if the further invasion of liberty is “de minimis.” The result has been lower courts struggling to figure out how many minutes is de minimis and how many is too long to require a driver to wait while the officer seeks to satisfy a hunch.  The Court is loathe to set arbitrary lines like number of minutes, so it will be interesting to see how it deals with the apparent need for a clear line; it has accepted cert. on the question of whether there even should be a “de minimis” exception to the probable cause requirement.