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.