April 2023 Arguments

The last set of regularly scheduled arguments will be April 17-26 (Mondays to Wednesdays). There is one case that was granted cert. and has not yet been scheduled for argument, but it probably will be re-listed for argument next term. It’s also possible the Court will add an argument day (that would be extremely unusual, but so is the looming circuit split over Mifepristone….) but in all likelihood the Court will not hear cases after April 26 but will issue decisions roughly weekly until the end of June and then be on summer recess until First Monday in October.

Most of the April cases are on procedural issues or otherwise not ones I’d recommend for the casual observer, but there are a few important and interesting cases that deserve mention and your attention. I have also updated the information on attending in-person, and these cases should be particularly good choices for anyone looking for that experience!

Tuesday, April 18

A very important issue involving the scope of an employer’s Title VII obligation to accommodate religious observances is up first today, in Groff v. DeJoy. The text of Title VII prohibits discrimination on the basis of religion, 42 U.S.C. 2000e-2(a)(1), and defines that to include failure to accommodate an employee’s religious observance or practice unless the employer can demonstrate that it cannot do so “without undue hardship on the conduct of the employer’s business,” 42 U.S.C. 2000e( j). What that means, in turn, is the issue for today. In a seminal case in 1977, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer did not have to accommodate an employee’s observance of the Sabbath where the employer showed it would either have to operate shorthanded or pay other employees overtime. That holding is not as seriously questioned as the reason the Court gave for that holding — that an undue burden is one requiring the employer to bear “more than a de minimis cost.” In the years since, the lower courts have generally — but not universally — adopted the EEOC’s position that things like being shorthanded or having to pay premium wages are hallmarks of an undue burden, while largely ignoring the “more than a de minimis cost” line. The US Department of Justice has taken the position that “[l]ower courts have sometimes been led astray by Hardison’sde minimis‘ language, and the Court can and should clarify that the EEOC has correctly interpreted Hardison to be consistent with substantial protection for religious observance and practice” while otherwise leaving the precedent in tact. The Court has also accepted cert. on the question of whether an accommodation that “burdens the employee’s coworkers rather than the business itself” meets the Title VII requirement, and the AFL-CIO has an amicus brief that focuses on that question, arguing that “[t]he fact that a proposed accommodation would interfere with an agreed-upon method of ensuring seven-day-per week coverage and fairly allocating undesirable shifts among employees is relevant to whether the accommodation would burden the ‘conduct’ of the employer’s business, regardless of whether an employer can prove it would cause any determinate level of economic harm. That is particularly true when the arrangement is embodied in a collective bargaining agreement.”

The second argument is on a pair of consolidated cases concerning the False Claims Act and its requirement that the false claim was submitted “knowingly.” It’s not one I would ordinarily recommend to a casual observer, but if you’re going to the above argument in person, it definitely would be worth staying for. In United States ex rel. Schutte v. SuperValu Inc., (a note on the name: Schutte is the “relator” (pronounced re-lay-tor), bringing a qui tam action in place of the US; the relator gets a portion of the funds recovered if they prove the government was defrauded under the FCA) the issue is whether “SuperValu knowingly filed false reports of its pharmacies’ ‘usual and customary’ (‘U&C’) drug prices when it sought reimbursements under Medicare and Medicaid.” The Seventh Circuit found that the filings were false, but also that they were based on an “objectively reasonable understanding of the regulatory definition of U&C price.”

It also held that the FCA requires a level of intent to defraud. The dissent characterized the issue as “whether the Act can reach businesses that submit false claims for government payment but claim there is some legal ambiguity that kept them from ‘knowing’ for certain that their claims were false.” Sen. Chuck Grassley has an interesting amicus brief arguing that the Seventh Circuit’s test “puts on the government a nearly impossible burden to anticipate and warn off future fraudsters from every colorable misinterpretation of the law” and that “[i]f it is not set right, it will not be long before the centerpiece of the government’s anti-fraud arsenal becomes unusable.” The Court has accepted cert. on “[w]hether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.”

Wednesday, April 19

The only argument today concerns what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media. In Counterman v. Colorado, Counterman began following musician C.W. on Facebook, was blocked when she found his posts “creepy” but kept following under new accounts, and ultimately sent her “messages [that] alluded to making ‘physical sightings’ of C.W. in public” (as found by the Colorado Supreme Court). He was prosecuted under a Colorado stalking statute that criminalizes repeatedly sending messages “that would cause a reasonable person to suffer serious emotional distress.” Colo. R.S. 18-3-602. The messages presumably are “speech” within the meaning of the First Amendment, so the question is whether it falls into a category of speech that may be criminalized consistent with those free speech protections; the Colorado Supreme Court held that this was a “true threat” and upheld the conviction. Courts are split on how to determine if something is a true threat. Some require a subjective intent to threaten, while others apply an “objective test” and ask only if a reasonable person would feel threatened in the “totality of the circumstances.” Some advocates suggest that an objective test is unworkable in the online context because those communications so frequently lack context to be able to objectively assess the totality of the circumstances.

The University of Miami Law Review has a useful backgrounder on all these legal issues. Notably, the ACLU argues that “a subjective intent requirement is critical to ensure breathing room for robust public debate,” while the Lawyers’ Committee for Civil Rights Under Law argues that “[r]equiring subjective intent to establish a true threat would vitiate anti-intimidation laws, especially voter intimidation laws.” Meanwhile, one group of “First Amendment Scholars” emphasizes that “Mr. Counterman was convicted for the crime of stalking, not threats” and therefore urges the Court to “affirm [the conviction] rather than announcing a rule that would require all communication-based stalking prosecutions to prove a ‘true threat, ‘” while another group of “First Amendment Scholars” including Erwin Chemerinsky argues that a “specific-intent requirement for stalking and other threats undermines, rather than protects, First Amendment values, including by depleting the marketplace of ideas, inhibiting counter-speech, and interfering with individual autonomy and association.” Those are just some of the 22 amici briefs filed in this case — it should be a really interesting argument (but expect it to run long!).

Wednesday, April 26

My final recommendation for a case to take in this term is the only one scheduled for the last day of the regular calendar this term, involving the takings clause in the context of foreclosures where the government keeps the surplus value beyond the back taxes that were owed. Tyler v. Hennepin County has so much interest that it already has its own Wikipedia page and has generated some 46 amici briefs! Briefly, as the 8th Circuit explained, “Tyler accumulated a tax debt of $15,000. To satisfy the debt, Hennepin County foreclosed on Tyler’s property and sold it for $40,000. The county retained the net proceeds from the sale.” The courts below all held that this was not an unconstitutional taking because the property was lawfully seized after reasonable notice and opportunities for Tyler to avoid that consequence; at that point, the entirety of the property was the government’s, and it was free to sell it for full value. At the point of sale, as the 8th Circuit held, “[w]here state law recognizes no property interest in surplus proceeds from a tax-foreclosure sale conducted after adequate notice to the owner, there is no unconstitutional taking.” Specifically in this case, Tyler “could have recovered the surplus by redeeming the property [paying back taxes prior to foreclosure] and selling the condominium, or by confessing judgment, arranging a payment plan for the taxes due, and then selling the property. Only after she declined to avail herself of these opportunities did ‘absolute title’ pass to the State.” Public Citizen has a useful amicus brief that walks through the taking clause analysis it believes should apply and argues that “[p]ermitting the government to take property to collect a tax debt without compensating the owner for the value exceeding the debt creates skewed incentives that disproportionately harm vulnerable people.”

Decision Days in May and June

The Court used to sit for decision days (mostly on Mondays) between the end of arguments and the end of June. The Court would take the bench and the author of the majority opinion would announce it (briefly summarize the holding), and sometimes a dissenter would also announce their dissenting opinion. All that was suspended during the pandemic, with the opinions simply posted to the website. But in January, they restarted the practice of announcing opinions from the bench. So hopefully there will be opportunities to be in the courtroom and hear decisions announced in May and June this year. We never know which opinions will be issued until it happens (except when we know it’s the last decision day on the calendar and there are just a few cases left!) but it can feel quite meaningful to be there for the announcement in a big case. You also typically don’t have to get in line nearly as early as for arguments. So something to consider if you’re in town in May and June (especially June, since there’s a trend of the most high-profile cases being decided last).

February Cases

In the last week of February, the Court will hear cases involving religious accommodation obligations (in the context of Abercrombie’s “look policy”) if the applicant never mentions religion, the reviewability of visa denials, the Prison Litigation Reform Act, and sales of firearms after being convicted of a felony.

One note, too, about a much-anticipated case that had been scheduled for March:  The Court this term will not be deciding whether the 2012 decision that it is cruel and unusual to sentence juveniles to life without parole is retroactive to prisoners who were sentenced before that decision was announced.  The case raising that issue has been rendered moot by a plea deal.

Monday, February 23

Kerry v. Din is an interesting challenge to immigration policy and secrecy.  Under the doctrine of “consular nonreviewability,” people seeking to immigrate to or visit the US are not entitled to judicial review if their applications are denied.  But in this case, it is the US citizen, who is the wife of the person seeking a visa, who is suing and claiming a constitutional right to know why the government is keeping her husband from entering the US.  The embassy cited a provision that denies visas for “terrorist activities” but offered no further explanation.  The husband worked for the Afghan government under the Taliban as a payroll clerk in the ministry of social welfare, but after the US invasion, he continued to work for the Afghan government, now in the ministry of education (and anyway, the US government funded the Taliban as late as 2001).  The Court will have to decide if the citizen-spouse is entitled to demand and explanation for the denial of a visa for her husband, and then whether there is a legitimate reason for the denial.

Coleman-Bey v. Tollefson involves prisoner access to the courts under the Prison Litigation Reform Act. Prisoners may file lawsuits without paying fees (in forma pauperis) but the PLRA denies ifp if the prisoner has had three earlier lawsuits dismissed. The issue in this case is whether a dismissal that is pending appeal counts as a “strike” under the PLRA.

Tuesday, February 24

Henderson v. US involves a Border Patrol agent who was charged with narcotics offenses, turned over 19 guns to the FBI as a condition of his pre-trial release, and then pled guilty.  The felony guilty plea makes him ineligible to possess firearms, but he wants the FBI to return them, either to him or to a buyer.  The Court granted cert. on the question, “Does a felony conviction, which makes it illegal for the felon to possess firearms, also prevent a court from ordering that the government transfer non-contraband firearms to a third party to whom the defendant has sold his property interests or sell the firearms for the defendant’s benefit?”

Today’s second case (Tibble v. Edison International) involves complex procedural questions and the duties of investment fund managers under ERISA.  Not really one for the casual observer…

Wednesday, February 24

Much has been said about Abercrombie’s “Look Policy,” which dictates hiring decisions.  In this case, a woman wore a headscarf to the interview.  The interviewer never mentioned it, so the reasons for wearing the headscarf were never stated, and the interviewer gave her relatively high marks on the evaluation and recommended hiring.  Upon hearing about what she wore, however, the district manager directed the “appearance” score to be lowered, making the applicant ineligible for employment.  Abercrombie claims that the applicant is not entitled to religious accommodation and Abercrombie was not unlawfully discriminating because the applicant never mentioned that she was dressed in that way for religious reasons.  The question before the Court in EEOC v. Abercrombie & Fitch is whether unlawful discrimination requires “direct knowledge that a religious accommodation was required.”

Today’s second case involves payment of attorney fees in bankruptcy cases; the casual observer will likely want to leave after the Abercrombie case….