February (& March 1-2) cases

This month’s oral arguments have not received the attention of some earlier abortion and other high-profile cases, but involve a range of interesting and important issues. The case involving the EPA’s climate change authority, especially, deserves careful attention.

Tuesday, February 22

The cases today are two variations on Native American sovereignty issues. (Not consolidated; separate one-hour arguments.)

First up is Ysleta del Sur Pueblo v. Texas, involving the tribe’s authority to conduct bingo and other gambling, notwithstanding Texas law. The Fifth Circuit described the dispute as centered on “which federal law governs the legality of the Pueblo’s gaming operations—the Restoration Act (which bars gaming that violates Texas law) or the more permissive Indian Gaming Regulatory Act (which ‘establish[es] … Federal standards for gaming on Indian lands’).” It held that because the “Restoration Act controls, the Pueblo’s gaming is prohibited.” But the Supreme Court’s characterization of the question presented is perhaps a bit revealing: “Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.”

The second case, Denezpi v. United States, involves tribal sovereignty in the context of criminal law, and specifically double jeopardy. The Court has long held (and recently reaffirmed) that the Constitution’s prohibition on double jeopardy does not restrict prosecutions by different “sovereigns” — so the federal government is free to prosecute a person for the same conduct that already resulted in a state conviction (or acquittal). Thus the importance of the status of tribal courts, and the question presented in this case: “Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.”

Both cases are nicely summarized here. There’s also an interesting amici brief on the criminal courts case from a group of “federal Indian law scholars and historians.”

Wednesday, February 23

An important administrative procedure case today, in the context of immigration law. Arizona v. City and County of San Francisco. Immigrants may be turned away, under the Immigration and Nationality Act, if they are likely to become a “public charge.” That term had long been understood to describe receipt of cash welfare benefits. The Trump Administration adopted a formal regulation that expanded “public charge” to include receipt of certain non-cash benefits, like Section 8 housing and SNAP benefits. Lawsuits challenged that rule, there were various provisional wins and losses for both sides at early stages of the litigation (the full history is set out here), but ultimately the Biden Administration came to power and announced that it would no longer defend the rule. It is not uncommon for new administrations to both decline to defend lawsuits and to embark on the process of formally rescinding or replacing regulations — which is a long and quite involved process. But in this case, according to the 9th Circuit:

the new administration didn’t just stop defending the prior administration’s rule and ask the courts to stay the legal challenges while it promulgated a new rule through the ordinary (and invariably time- and resource-consuming) process envisioned by the APA. Instead, together with the plaintiffs challenging the rule, it implemented a plan to instantly terminate the rule with extreme prejudice—ensuring not only that the rule was gone faster than toilet paper in a pandemic, but that it could effectively never, ever be resurrected, even by a future administration. All while avoiding the normal messy public participation generally required to change a federal rule. Not bad for a day’s work.

9th Cir.

Now, other states want to join the lawsuit to defend the Trump Administration rule. The Court has accepted cert. only on the question of “Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”

This is the only case scheduled for today. Expect the arguments to run long.

Monday, February 28 — EPA climate change authority

An important set of cases today concerning EPA’s authority, which has largely slipped under the mainstream radar. The Court has consolidated four cases against the EPA, brought by West Virginia, North Dakota, North American Coal Corp., and Westmoreland Mining Holdings.

Briefly, the issues began when Obama Administration enacted the Clean Power Plan, perhaps the country’s most ambitious effort to reduce carbon emissions. The regulations were immediately challenged as unconstitutional and beyond EPA’s authority. While the litigation was ongoing, the Trump Administration rescinded the plan and replaced it with the “Affordable Clean Energy” rule, but litigation continued. Then the Biden Administration has said it will not reinstate the Obama plan but rather will issue a new plan; it asked the Court to decline to hear this case and to instead address any challenges to the new rule after if is announced. However, the Court instead accepted cert. on “Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.”

This is an exceedingly important case but the legal issues will be hard to follow. Start with this thorough and readable summary. Then take a look at the DC Circuit ruling and one or more of the vast array of amici briefs that have been filed in this case.

Tuesday, March 1

First up is a pair of consolidated cases (one hour total), Ruan v. United States and Kahn v. United States, involving the Controlled Substances Act and “pain management” practices. Doctors in both cases were convicted of prescribing opiates and other drugs in violation of the CSA (and sometimes for personal gain), but they assert the drugs were prescribed in a good faith belief that the prescriptions were appropriate. More here. Not the most sympathetic defendants, at least as described in the 11th Circuit decision, but some conservative and libertarian groups (e.g. Cato’s amicus brief) are lining up with others to defend the idea of a good faith defense.

The second case today, Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, is a complex case involving “the scope of the Medicare Secondary Payer Act (MSPA) as it relates to the treatment of patients with end-stage renal disease (ESRD).” The arguments won’t be easy to follow, so see the explanation here.

Wednesday, March 2 — Scope of Bivens

Scotusblog offers a useful intro to the case today, Egbert v. Boule:

Fifty years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. In the nine years after Bivens, the court recognized Bivens claims for damages for violations of the Fifth and Eighth Amendments, but in 2017 it stressed that “expanding the Bivens remedy is now a disfavored activity.”

On Friday, the justices agreed to decide whether a Bivens remedy should be available to the owner of an inn on the U.S.-Canada border who alleges that a U.S. Border Patrol agent violated both his Fourth Amendment rights and his First Amendment rights. But the justices declined a request to reconsider Bivensitself. 

Scotusblog

According to the 9th Circuit decision, Mr. Boule “operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the driveway of plaintiff’s property to question arriving guests; used excessive force against plaintiff, and then, in response to plaintiff’s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff’s tax status.”

It should be a very interesting argument. Take a look at the range of amicus briefs filed in this case — it’s not often we see the Reporters Committee for Freedom of the Press and CAIR on the same side as libertarian groups like Institute for Justice and FIRE.

January 2022 Cases

A very unusual Friday oral argument has been scheduled for January 7, in cases concerning the federal vaccine mandate. Plus cases concerning Medicaid, immigration law, a religious flag on a City Hall flagpole, FEC v. Ted Cruz for Senate, and the Court’s first consideration of the First Step Act.

The Court will continue with last fall’s practice of in-person arguments with Justices, arguing counsel, and reporters only (at least through February cases). The rest of us can listen in live online. Arguments start quite promptly at 10:00 and the easiest way to listen is to go to https://www.supremecourt.gov and click the “live audio” icon. I’ve noticed that if you try to launch the audio early, you’ll get an error right about 9:59; just refresh the page then. See this page for non-live options.

Friday, Jan 7 – Vaccine Mandate

A group of states and a group of employers have challenged the federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard. In essence, employers of 100 or more employees are to require proof of Covid-19 vaccination by January 10 and are to begin requiring weekly testing by February 9 for any employee who elects that option in lieu of vaccination. There have been a series of decisions that have blocked implementation in about half of the states, and the Court will decide whether the rule can be enforced pending resolution of those challenges. There’s a good summary here. Since then, the states and the employer groups have asked for divided argument, so each will get 15 minutes (with the federal government allotted 30). But, of course, expect this day to run very long. Filings for both National Federation of Independent Business v. Dept of Labor and Ohio v. Dept of Labor are here.

Monday, Jan 10

Just one case today, an unusual case involving Medicaid and private lawsuits. A 13-year old girl suffered severe injuries, the medical expenses of which were mostly paid for by Florida’s Medicaid program, after she was hit by a truck after exiting a school bus. Eventually, the family obtained a settlement for $800,000 against the truck driver, in part to cover both future and past medical expenses. Florida then filed a lien, seeking reimbursement of expenses it had covered. The family sued to block enforcement of that lien, won in the trial court (which found that the federal Medicaid Act preempted such state actions), but lost at the 11th Circuit. More details about Gallardo v. Marstiller here.

Tuesday, Jan 11

Two related (but not consolidated; separate 1-hour arguments) immigration law cases today, Johnson v. Arteaga-Martinez and Garland v. Gonzalez. As Scotusblog explains, “Both cases involve noncitizens who have been ordered deported but claim they are entitled to ‘withholding’ protection – a form of humanitarian relief in which noncitizens cannot be deported to their home country because they may be tortured or persecuted there. The noncitizens argue that, after spending more than six months in immigration detention awaiting the resolution of their withholding claims, they are entitled to a hearing before an immigration judge to determine whether they can be released on bond.” The Court has accepted cert. in both cases on the question “[w]hether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community,” but the second argument, Garland v. Gonzalez, adds “whether, under 8 U.S.C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.”

[The Court is closed on Monday, Jan 17, in observance of MLK Day]

Tuesday, Jan 18

First up is an interesting case combining government speech and religion issues, Shurtleff v. Boston. The three flag poles in front of Boston City Hall fly the US flag, the Massachusetts flag, and typically the Boston City flag — but at a rate of about twice a month, that third pole instead flies a flag requested by a private organization. A regligious organization sought to fly a flag with a Latin cross, but was denied because the City said that would constitute endorsement of religion. The First Circuit held that the display of flags on the City’s flagpole constituted government speech, which is not constrained by the First Amendment in the way that private speech is: “Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause. . . . The City is therefore ‘entitled’ to ‘select the views that it wants to express.'” In this instance, the court explained, “the City exercised those rights by choosing not to fly the plaintiffs’ third-party flag. . . . Should the citizenry object to the City’s secular-flag policy or to its ideas about diversity, the voters may elect new officials who share their concerns. . . . After all, it is the electorate and the political process that constrains the City’s speech, not the Free Speech Clause.” That decision is quite accessible, but there is also NY Times coverage for more plain-language discussion. The array of amici briefs filed in this case is also worth a look, if only to note the strange bedfellows — the ACLU is arguing for the religious group petitioner, while the National Council of the Churches of Christ, representing “more than 100,000 local congregations and 40 million adherents,” has joined with other religious and civil rights organizations to argue that “that an official governmental display of the Christian Flag in front of a city hall is exclusionary to the countless Americans not represented by that religious symbol. . . . And it elevates the sacred symbol of one faith in ways that many denominations and individuals who adhere to the favored religion also find intrusive on and corrosive of their beliefs and fundamental religious freedom.”

Today’s second argument, in Cassirer v. Thyssen-Bornemisza Collection Foundation, is a technical procedural issue arising out of an incredibly loaded context. The official question presented is “Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.” But the case concerns attempts to recover a painting that “was stolen from the family of Holocaust survivor Lilly Cassirer by the Nazi regime in 1939. The painting was illegally transferred from Germany into California after World War II and traded privately in the United States between 1951 and 1976. The Thyssen-Bornemisza Collection Foundation, a subsidiary of the Kingdom of Spain, purchased the painting from Baron Hans Heinrich Thyssen-Bornemisza in 1993.” Take a glance at some of the filings; the US has filed a brief in support of the family, sticking to the technical FSIA issue, while B’Nai B’rith has highlighted the context.

Wednesday, Jan 19

FEC v. Ted Cruz for Senate is the first case today. The Bipartisan Campaign Reform Act of 2002 (BCRA), in an attempt to limit corruption and appearances of corruption, requires campaigns to repay personal loans from candidates with pre-election funds and within 20 days of the election. In an apparent attempt to challenge that law, Ted Cruz loaned his campaign $260,000 on the day before the election, with $5,000 in personal funds and a $255,000 loan secured by his personal assets, and then the campaign failed to repay Cruz as required by BCRA. A three-judge panel in DC held “that the loan-repayment limit burdens political speech and thus implicates the protection of the First Amendment. Because the government has failed to demonstrate that the loan-repayment limit serves an interest in preventing quid pro quo corruption, or that the limit is sufficiently tailored to serve this purpose, the loan-repayment limit runs afoul of the First Amendment.” Take a look at that ruling and the amicus brief from the Brennan Center arguing that the panel got it wrong.

The last case this month is the Court’s first consideration of the First Step Act. In 2010, the Fair Sentencing Act addressed disparities in sentences for crack versus powder cocaine, but those changes were not retroactive. Then the 2018 First Step Act provided that a court “may … impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act … were in effect at the time the covered offense was committed.” This particular case has a number of complications, but it appears the Court wants to address a “Circuit split,” in which the Circuit courts have disagreed as to the level of resentencing consideration that is required (versus discretionary) under the First Step Act. It accepted cert. on “Whether, when deciding if it should ‘impose a reduced sentence’ on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments.” I recommend reading the First Circuit decision and this interesting amicus brief from DC and 16 other states and territories arguing for an expansive reading of the First Step Act.

Nov 29 – Dec 8

All attention is on Wednesday, December 1, for Mississippi’s 15-week abortion ban. But this next block of arguments includes important Civil Rights Act and other issues as well, including a major religion clauses case the following Wednesday.

• Arguments start quite promptly at 10:00 and the easiest way to listen is to go to https://www.supremecourt.gov and click the “live audio” icon. I’ve noticed that if you try to launch the audio early, you’ll get an error right about 9:59; just refresh the page then. See this page for non-live options.

Monday, Nov 29

This is a technical issue involving calculations of medicare payments for hospitals with a large number of low-income patients. It won’t be easy to follow, so if interested, see Cornell Law’s thorough write-up here.

Tuesday, Nov 30

Title VI of the Civil Rights Act provides for damages in cases of unlawful discrimination by an entity that receives federal funds, and various other laws that prohibit discrimination incorporate that “remedies provision.” There is an open question about whether victims of discrimination can sue for emotional distress (or only other forms of damages) under that law. So the question presented today in Cummings v. Premier Rehab Keller, P.L.L.C.: “Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.”

The second case today, American Hospital Association v. Becerra, is a big one for people who care about judicial deference to administrative agencies — “1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data; and (2) whether petitioners’ suit challenging HHS’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12).” If that’s you, then see this overview.

Wednesday, Dec 1 — abortion

This is the most high-profile case in this block of arguments — Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s ban on abortions after 15 weeks. There’s been so much attention to this case that there’s no sense in me trying to add anything, but I recommend reviewing the SCOTUSBlog overview before arguments. It’s the only case today, and scheduled for 70 minutes (but I’d expect well over 90).

Monday, Dec 6

Two technical issues today, not recommended for the casual observer. Hughes v. Northwestern University is an ERISA issue. Patel v. Garland involves federal court jurisdiction.

Tuesday, Dec 7

Just one case today, US v. Taylor, involving the federal law covering “interference with commerce by threats or violence.” “Whether 18 U.S.C. § 924(c)(3)(A)’s definition of ‘crime of violence’ excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).” There are extremely important issues of how to interpret criminal statutes, but it won’t be easy for a casual observer to follow. If interested in these issues, take some time with the NACDL amicus brief.

Wednesday, Dec 8

An extremely important religion clauses case today, in Carson v. Makin. Over half the school districts in Maine do not operate a high school but instead provide funding for students to attend either public or private schools outside the state, but only at “nonsectarian” schools. You may recall that last year, the Court held that states that choose to subsidize private education cannot exclude religious schools from receiving funding simply because they are religious institutions. In upholding Maine’s system, the First Circuit distinguished that ruling (Espinoza v. Montana Department of Revenue), finding that Maine’s restriction was use-based rather than identity-based: the Maine law “does not bar schools from receiving funding simply based on their religious identity — a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.” The question presented today is “Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction.”

The final case in calendar year 2021 involves federal habeas appeals: Shinn v. Ramirez, “Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.”

October 2021 Arguments

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

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

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

First Monday, October 4

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

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

Tuesday, October 5

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

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

Wednesday, October 6

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

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

Tuesday, October 12

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

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

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

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

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

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

Wednesday, October 13

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

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

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

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

Decision Days

With oral arguments concluded for the term, we can expect announcements of cases the Court will hear next term and decisions on the cases argued earlier this term. Orders granting or denying cert. are less predictable, but decisions will be announced beginning at 10am on Mondays (except cases that would be ready on Memorial Day will instead be announced on Tuesday) until the end of June. Edit: The Court has now designated Thursdays as decision days, in addition to Monday releases.

Before the pandemic, the Justices would take the bench on decision days. The author of the majority opinion would announce the holding, and sometimes a dissenting Justice would make a statement as well. Sadly, that is not happening this summer; there is no conference call with an accessible live-stream of decision announcements like there was for arguments.

Instead, watch the Court’s website beginning at 10am Mondays and Thursdays (and Tuesday, June 1). Decisions get posted on the front page, but if you’re actively watching for decisions, then it’s better to monitor this page. The decisions get posted 10 minutes apart and we don’t know in advance how many there will be. But when the “R number” column gets filled in on that page, you know they’re done for the day. (See the scotusblog blurb on R numbers for the details on why this works as an unofficial sign.)

There is no way to predict which cases will be released on any given decision day. Predictably, almost all cases heard in March or later are still unresolved as of this post (May 21), while we have decisions on nearly all the cases argued early in the term.

So it’s worth noting the outliers — a few important cases that were argued back in 2020 but have not been resolved yet. We might expect to see some of these decisions announced fairly soon. But on the other hand, sometimes the most high-profile cases don’t get released until the very last day of the term, perhaps because Justices are taking extra time to craft opinions and dissents. Still:

Of course, many significant and highly watched cases were not argued until the past few months, and some of those could well be decided before the above cases. I’m especially interested in Mahanoy Area School District v. B.L., involving student First Amendment rights, but it wasn’t argued until April 28. And the decision on the Voting Rights Act cases, argued March 2, could be extraordinarily significant. Lots of reasons to watch!

When all decisions are in, the Court will be in summer recess until the first Monday in October. I may make one more post next month, but this blog will largely go on break until it’s time for a post about the October 2021 calendar.

April cases

Several important SCOTUS cases in the next block — beginning Monday with a case about Native Alaskan Corporations and the CARES Act and closing the following week with big questions about student free speech.

Monday, April 19

First up are cases questioning whether Alaskan Native Corporations are “tribal governments” eligible for CARES Act funding. There’s a complicated history concerning Alaskan Native Americans. Briefly, the 1971 Alaska Native Claims Settlement Act extinguished all land claims, eliminated all but one reservation, and established “corporations” that were eligible to receive federal and state funds and land. The DC Circuit observed that this was “an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America.” Jumping ahead, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) set aside $8 billion “for making payments to Tribal governments.” 42 U.S.C. § 801(a)(2)(B). When Treasury began a process that would allow Alaskan Native Corporations to receive those funds, tribes in Alaska and the lower 48 sued to block disbursements. The DC Circuit agreed with the tribes, and that opinion is a good starting point to understand the details. Also see the various amici briefs from the Corporations, various tribes and tribal associations, Alaska, Sen. Murkowski, and a group of historians – all collected here. There are two cases, Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, consolidated for one hour of argument total.

Next up is Sanchez v. Mayorkas, an immigration case involving the relationship between Temporary Protective Status (TPS) and Lawful Permanent Residency (LPR) (sometimes called a “green card”). A prerequisite to LPR status is that the applicant was “inspected and admitted” into the U.S. 8 U.S.C. § 1255(a). The applicants here entered undocumented but a few years later obtained TPS after a series of earthquakes in El Salvador, and now argue that being granted TPS constitutes being “inspected and admitted.” The Third Circuit disagreed, which created a split with other circuits that had considered this question.

Tuesday, April 20

Two criminal procedure cases today, both involving the federal “felon in possession of a firearm” law (but not consolidated; separate arguments). In both U.S. v. Gary and Greer v. U.S., the plaintiffs pled guilty. When accepting a plea, the judge is required to explain what the prosecution would have to prove (the “elements” of the crime). The judge listed knowing possession of the firearm and previous conviction for a felony. But two years later, the Supreme Court in Rehaif v. United States clarified that conviction under this law requires knowledge that they were a felon. The cases raise issues concerning whether Rehaif announced a rule that is so fundamental as to require reversal of prior convictions as “plain error” and whether the court can look to evidence beyond the trial record in making those determinations.

[Wednesday’s cases involve technical patent law and appellate costs and are not recommended for the casual observer]

Monday, April 26

Important cases today bringing First Amendment challenges to laws that require charities to disclose their major donors on tax filings: Thomas More Law Center v. Rodriquez and Americans for Prosperity v. Rodriquez. See the Public Citizen summary and then the 9th Circuit decision.

Guam v. U.S. involves a fascinating factual context but will largely revolve around technical legal issues. In the 1940s, the U.S. Navy operated the Ordot Dump in Guam, and allegedly disposed of Agent Orange, DDT, and munitions there. In 1950, the Guam Organic Act formally transferred power from the United States to Guam’s newly formed civilian government. In the 1980s, the EPA focused on the Ordot Dump, initially involving the Navy but ultimately ordering Guam to clean it up. There was eventually a court settlement and, several years later, a lawsuit by Guam against the Navy under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, which creates the ability to sue for “cost-recovery” and “contribution.” The statute of limitations for “cost-recovery” and “contribution” are different, and which one Guam must rely on determines whether its case can proceed or is time-barred. The DC Circuit decision is probably the best place to start.

Tuesday, April 27

The second case today involves immigration law and procedural issues, which are nicely summed up by the opening of the 9th Circuit decision:

Refugio Palomar-Santiago is a Mexican national who was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California. In 1998, he received an Notice to Appear from the Immigration and Naturalization Service informing him that he was subject to removal because the DUI offense was classified as a crime of violence under 18 U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that basis. Three years later, the Ninth Circuit determined that the crime Palomar-Santiago was convicted of was not a crime of violence. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).

By 2017, Palomar-Santiago was again living in the United States, this time without authorization. That year, a grand jury indicted him for illegal reentry after deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d). However, a defendant need not prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and need not show the third element if he can show the removal should not have occurred.

Wednesday, April 28

An interesting and critically important case about student First Amendment rights is first, Mahanoy Area School District v. B.L. After making the JV instead of the varsity cheerleading team, a student posted a snapchat picture of herself captioned “Fuck school fuck softball fuck cheer fuck everything.” She was suspended from the team, and sued. The Third Circuit noted that schools traditionally have had significant disciplinary discretion for on-campus activities only, with greater constitutional limits on control over off-campus activity; “[t]he digital revolution, however, has complicated that distinction.” That decision offers a useful survey of student speech cases, from Tinker through Morse (the “bong hits for Jesus” case). I’d also recommend the Student Press Law Center’s amicus brief. Really important questions about just what, if anything, is beyond the reach of school disciplinary policies.

[The last case this month is about FERC’s authority and not recommended to the casual observer.]

January 2021 cases

The Court returns from the holidays on January 11 with arguments on 4 days (closing for MLK Day and Inauguration Day). It will hear cases involving release on bond while an asylum petition is pending, nominal damages in First Amendment cases, FTC and FCC powers, and an important opening salvo in a major climate change lawsuit.

Monday, January 11

The only case today is Chavez v. Hott, an immigration law issue: who is entitled to a bond hearing? It is largely being treated as a statutory interpretation issue. One statute provides that people facing deportation are entitled to a hearing to determine if they should be released on bond “pending a decision on whether the alien is to be removed,” 8 U.S.C. § 1226, but another statute provides that detention is mandatory once “an alien is ordered removed,” 8 US.C. § 1231. You might envision these provisions working together in the ordinary timeline of a case, but in the cases being heard today, the people were ordered removed, left the US, then faced persecution in their home countries and returned to the US to seek asylum, which an asylum officer found to well founded. They were thus subject to a “reinstated removal order” — once someone is ordered removed, that order remains in place and cannot be challenged — but the actual removal is subject to “withholding” under asylum law, if a judge agrees with the asylum officer’s initial finding and grants asylum status. The government’s position is that the decision on whether they are “ordered removed” has already been made (even if whether to actually execute that order is still being considered) so the mandatory detention statute applies. The immigrants argue, and the 4th Circuit held, that even a “withholding-only proceeding” brings the case within the statute that allows for release on bond. I started this discussion by saying it is “largely” a statutory interpretation issue because Human Rights First has submitted an interesting amicus brief arguing that the statutes should be interpreted to best effect our international law obligations in support of refugee rights.

Tuesday, January 12

Another one-argument day, in an interesting free speech context but focused on more technical pleading and mootness questions. In Uzuegbunam v. Preczewski, the plaintiffs were students at Georgia Gwinnett College who first were stopped from distributing literature because the campus required them to reserve and remain in one of two “speech zones,” and later were stopped by campus police while in one of those zones because their reservation was only to distribute literature but they were also engaging in conversation. After being sued, the college changed its policies. The court then held that the case was moot and dismissed it. The Complaint only sought “nominal damages” and a declaratory judgment and injunction; the lower court held, and the 11th Circuit agreed, that they were not entitled to an injunction because the college had “unambiguously terminated the Prior Policies and there is no reasonable basis to expect that it will return to them,” and that the demand for nominal damages (instead of greater compensatory damages, as one would often seek) was not enough to overcome dismissal as moot. The Court has accepted cert. on the narrow question of “whether a constitutional challenge to a school policy that seeks nominal damages rendered moot if the unconstitutional policy is revised during litigation.” Take a look at the factual overview on Oyez and the 11th Circuit opinion.

Wednesday, January 13

The case today involves the powers of the Federal Trade Commission and, more specifically, what a court may order when the FTC brings an action against a company. AMG Capital Management, LLC v. Federal Trade Commission involves an online “payday loan” company, which had “originated more than 5 million payday loans, each generally disbursing between $150 and $800 at a triple-digit interest rate.” The terms were disclosed in seven different online documents, but the site was designed to allow the consumer to “simply ignore the document, electronically sign their names, and click a big green button that said: ‘I AGREE Send Me My Cash!'” (These factual descriptions are from the 9th Circuit opinion.) The FTC brought suit for unfair and deceptive trade practices, alleging that in addition to the above, “the terms disclosed in the Loan Note did not reflect the terms that Tucker actually enforced.” The FTC won on the merits, but the issue the Court will address today is the order to pay approximately $1.27 billion in equitable monetary relief to the Commission. The complication is that 15 U.S.C. § 53(b) only authorizes the court to issue an “injunction” in cases brought by the FTC, but prior precedent is that courts may use their broader equitable powers to order restitution as well. See this interesting brief by former FTC officials.

Tuesday, January 19

First up are two consolidated cases, Federal Communications Commission v. Prometheus Radio Project and National Association of Broadcasters v. Prometheus Radio Project, involving the FCC’s relaxation of media ownership rules. The rules concern how much broadcast media in any local area may be owned by a single company, approval of corporate conglomerates, and other “competition, diversity, and localism,” issues. There has been a complicated back-and-forth among the FCC, courts, corporations, and advocacy groups over many years, helpfully summarized here and most recently involving questions of whether the FCC’s determinations were sufficiently supported by factual evidence. The Court has accepted cert. on “whether the FCC may repeal or modify media ownership rules that it determines are no longer ‘necessary in the public interest as the result of competition’ without statistical evidence about the prospective effect of its rule changes on minority and female ownership.”

The last argument this month, in BP P.L.C. v. Mayor and City Council of Baltimore, is a technical civil procedure issue in the context of an extremely important climate change lawsuit. Baltimore is suing 26 major oil and gas companies, alleging involvement in activities that caused climate change that harmed the city when it resulted in rising sea levels at the port, flood, heatwaves, etc. With echoes of the tobacco litigation from twenty years ago, the suit alleges (as described on Ballotpedia) that “that the companies engaged in an organized, multi-faceted effort to hide the direct link between fossil fuel use and global warming, to discredit publicly available scientific evidence, and actively attempted to undermine public support for regulation of the companies’ business practices, while promoting unrestricted and expanded use of the companies’ fossil fuel products.”

For now, the issue is whether this case will be heard in federal or state court. Baltimore was careful to bring suit under state law, but the companies nevertheless sought to “remove” the case to federal court. Baltimore challenged that removal, and both the federal district court and the 4th Circuit remanded the case back to state court. And right now, the issue is whether that decision (to reject the defendants’ removal and remand it to state court) is appealable. A statute provides that only removal based on federal officers or federal civil rights may be reviewed on appeal; other bases for removal, if rejected by the district court, are not appealable. 28 U.S.C. § 1447(d). The defendants here asserted 8 possible grounds for removal, all rejected, and they now want appellate review of all the grounds instead of just the two appealable grounds because it was all encompassed in one court order. The 4th Circuit order covers the issue well.

[No arguments on Dr. King Day or Inauguration Day; the next set of arguments begin Feb 22.]