January cases

There are some interesting cases this month — involving attorney-client privilege, the status of national guard employees and union rights, another union issue, the Puerto Rico Financial Oversight and Management Board, and practical obstacles for enforcing the rights of students with disabilities — but in cases that have not received much public attention. So this might be a good month to attend arguments in person (although you can still listen in online live or later)!

Monday, January 9

Fans of unusual and amorphous legal structures and categories will enjoy today’s cases. We start with attorney-client privilege for communications that also (perhaps predominantly) cover subjects that are not privileged. In re Grand Jury, “Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.” See the useful summary and context from NAAG. The ABA also has an amicus brief celebrating the importance of the attorney-client privilege.

The next case gets more byzantine, involving technicians with the Ohio National Guard, who are “dual-status employees because their employment is ‘a hybrid, both of federal and state, and of civilian and military strains.'” Ohio Adjutant General’s Department v. Federal Labor Relations Authority (6th Cir. 2021), quoting Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1398 (D.C. Cir. 1988). Past cases have found that although National Guards are state agencies, their role is largely controlled by federal law and, therefore, certain guard employees have rights under the Federal Service Labor-Management Relations Statute, the guards are executive agencies for purposes of that law when acting as such employers, and the Federal Labor Relations Authority has jurisdiction. Nevertheless, when Ohio attempted to end the union contract, it objected to FLRA jurisdiction when the union filed a series of Unfair Labor Practice (ULP) charges. Hence the intriguing question presented (although it’s about national guards specifically): “Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.” See the link above for the 6th Circuit’s decision, or for interesting historical (and other) arguments, see this amicus brief from military law scholars.

Tuesday, January 10

Continuing the trend of intriguing questions presented is Glacier Northwest, Inc. v. International Brotherhood of Teamsters: “Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute.” Essentially, the union initiated a strike while concrete was in mixing trucks, which … caused some difficulties for management. The Washington State Supreme Court held, in part, that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” A group of NYU and Yale tort law professors have sided with the union in their amicus brief.

(Just one case is scheduled for today)

Wednesday, January 11

Again just one case scheduled today, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. The Board is refusing to produce financial records requested by a media organization (CPI), and argues that it is exempt from suit under the 11th Amendment and the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). The Court has granted cert. on a broad question: “Whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.” See the interesting and useful amicus brief from Reporters Committee for Freedom of the Press.

Monday, January 16 is Dr. King Day

Tuesday, January 17

An important but technical and procedurally complex immigration case is up first today, in Santos-Zacaria v. Garland. See the NAAG overview.

The second case involves Turkey and a major bank. After Halkbank was indicted for money laundering, it argued it was immune from prosecution under the Foreign Sovereign Immunity Act because the bank is majority-owned by Turkey. The Second Circuit held that the activity falls within the FSIA exception for commercial activity. The question is “Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.” Turkiye Halk Bankasi A.S. v. United States.

Wednesday, January 18

The case today is under the Individuals with Disabilities Education Act (IDEA). According to Ed Week, the case “involves Miguel Luna Perez, who is deaf and communicates through sign language. . . . His legal papers say that the district assigned a classroom aide to him who did not know sign language and who would sometimes abandon Perez for hours a day. Perez’s parents contend the district led them to believe their son was proceeding toward high school graduation, but they were informed that he only qualified for a certificate of completion.”

However, the arguments will focus on procedural issues, specifically the requirement to exhaust administrative remedies, as more fully explained by NAAG. An interesting amicus brief was filed by Sen. Tom Harkin and Cong. Tony Coelho and George Miller.

Oct 31 – Affirmative Action – lines and more

One of the most anticipated arguments of the term is set for Monday, October 31, when the court will hear arguments in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. One question presented is the same in both cases: “whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.” The Harvard case’s second question is “whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.” And the UNC case instead considers “whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.”

So much has been written about these cases that I won’t pile on. To get a strong sense of the legal (as opposed to the political) issues in this case, a great starting point would be the NAACP LDEF amicus brief. There’s also an interesting perspective offered by the APA. For a shorter overview, see the Lawyers’ Committee preview.

But here’s something I can add:

When should I get in line?

This is hard to answer because we are in a new era — this will be only the fifth day in the history of the Court that people could either attend in person or listen in live. Before Covid, public access to arguments hadn’t been suspended since 1918 (for the Spanish Flu), when teleconferencing hadn’t been invented.

I had students attend arguments (via the public line) in three of the first four such days earlier this month, so from that I can offer a few observations. The lines seem to have become much more reasonable than they were pre-pandemic, when it was not uncommon in major cases that the last person to get in for arguments started waiting in line in the morning of the day before. But the lines are still forming early and they could start forming even earlier!

Arriving by 5am was okay in the first two weeks, but I would get there at least a couple hours before that for the affirmative action cases. The Voting Rights Act arguments on October 4 may be the closest comparator in terms of public interest — my student who got in line at 4:45 made it, but only about ten people behind her got in. What you really don’t want is to get there at 4am and still not make it! Much better to get there as early as you can manage, and not be worried about that.

The first fifty people can be quite assured that they’ll get in (barring something extremely unusual). After that, it can depend on that day’s special arrangements and there is the option for a walk through for a few minutes (which is really unsatisfying!).

Also, major cases always draw demonstrators to the sidewalk in front of the Court, and arguing counsel usually speaks at a press conference and/or rally after the arguments. There certainly will be events on Monday! So it’s worth going to the Court just to take in the atmosphere outside the arguments, even if you can’t make it inside.

How long will the arguments be?

This has also changed. Pre-pandemic, it was extremely unusual for arguments to go much over the scheduled time. When telephone arguments required other adjustments to form, the arguments started running long — sometimes roughly twice the scheduled time. That trend of longer arguments seems to have continued now that they’re back in-person. It wouldn’t surprise me if the two affirmative action cases on October 31 go on for three hours or more. And I don’t believe they’ve made arrangements for bathroom breaks!

What about other arguments this week?

Tuesday, November 1 has two cases that will be of some interest and reasonably accessible for the casual observer:

Cruz v. Arizona : Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1 (g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.


Jones v. Hendrix: Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

I wouldn’t recommend a casual observer take in Wednesday’s arguments (a Bank Secrecy Act case).

There are some interesting cases coming up the following week, which I will address in a later post.

October 2022 Term

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

Update on access: The public is welcome back into the courtroom to view arguments, but the Court will continue to offer online audio as well. For more information, see attending arguments (in person) or online access.

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

First Monday, October 3

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

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

Tuesday, October 4

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

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

Wednesday, October 5

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

Monday, October 10

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

Tuesday, October 11

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

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

Wednesday, October 12

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

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

Decision Days 2022

Now that the Court has heard all cases scheduled for the October 2021 term, we can watch for decisions announced on Mondays (except May 30 for Memorial Day and June 20 for the observance of Juneteenth, when the Court will instead release decisions the next day) until the end of June, when the Court will go on recess until First Monday in October. This blog will go on recess after this post, until it’s time to preview the first arguments of the October 2022 term. But first, a quick rundown of decisions I’m anticipating.

Understandably, almost all the attention is on Dobbs v. Whole Women’s Health and whether the leaked opinion, and with how many alterations, will be the majority opinion when it is announced. I have nothing to add to that rampant speculation!

But we are also awaiting a decision in another major case that was argued a month before Dobbs. What I said about it before the November 3 argument:

  • Second Amendment issue involving New York’s “proper cause requirement” for concealed-carry licenses. See an overview here. Lots of attention to this one — New York State Rifle & Pistol Association Inc. v. Bruen has 87 amicus briefs! I recommend reading the Second Circuit ruling and a couple of briefs, all available here. For people interested in international law, note the brief from Amnesty International. And it’s always worth reading a brief from the NAACP LDEF.

We are also awaiting decision in a major religion case argued December 8 (just one week after Dobbs):

  • 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.”

Those are the major cases still outstanding from 2021 arguments. Order of argument is not a reliable indicator of order of decisions, although every October and November argument has been decided except New York State Rifle & Pistol, and most December and January cases have also been decided at this point. So going in that order, the next major decision to look out for is in West Virginia v. EPA, argued on February 28:

  • 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 it 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.

And finally (although these decisions won’t necessarily be announced last) are the major cases from April’s arguments. Kennedy v. Bremerton School District involves a public school coach who prayed before games. And Biden v. Texas involves rescission of the Migrant Protection Protocols (aka “remain in Mexico”).

How to “watch”

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 hasn’t returned; there is no live-stream of decision announcements like there was for arguments. 

Instead, watch the Court’s website beginning at 10am Mondays (or the Tuesday after Memorial Day and the observed holiday for Juneteenth — and additional days if announced, as the Court often does in June). 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 “What is the significance of “R” numbers?” for the details on why this works as an unofficial sign.)

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.

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.”

November 8-10 arguments

More interesting cases in the second week of November, involving state secrets, Puerto Rico residents’ entitlement to SSI, religious freedom claims in the context of the death penalty, and commercial advertising and the First Amendment.

Monday, Nov 8

First up is a “state secrets” case, FBI v. Fazaga. The case concerns “Operation Flex,” which recruited a fitness instructor to infiltrate a mosque. Several Muslims who were targeted filed various discrimination claims against the FBI. The FBI declined to disclose some information in the course of the litigation, asserting that doing so would harm national security (the “state secrets privilege”). In an interesting ruling, the 9th Circuit held that Foreign Intelligence Surveillance Act provisions allowing for in camera (judge-only) review meant that Congress had effected a limited waiver of this privilege and the judge could consider the evidence. Harvard Law Review has a very useful and accessible review of the law and details of this case.

[Today’s second case, Unicolors, Inc v. H&M Hennes & Mauritz, LP, involves Copyright Office procedures and isn’t recommended for the casual observer.]

Tuesday, Nov 9

A really interesting case involving Puerto Rico and equal protection claims, US v. Vaello-Madero. SSI disability payments are available to residents of the 50 states, DC, the Northern Mariana Islands — but not Puerto Rico (or Guam, American Samoa, or the USVI). After receiving benefits then getting cut off and sued by Social Security, the lower courts held that this exclusion from the Supplemental Security Income program violated the equal protection principle embedded in the due process clause of the 5th Amendment. Novel but fairly straightforward legal issues here. See this interesting amicus brief from 18 territories and states. arguing that the “Court should treat Congress’s discrimination against any state or territory in the context of nationwide aid programs with suspicion.”

Another interesting and important case is next, involving religious freedom in the context of pastor’s prohibited behavior during an execution. The pastor was allowed in the execution chamber, but could not touch the condemned person or pray out loud. Claims under the Constitution’s free exercise clause as well as the Religious Land Use and Institutionalized Persons Act. Again, important but fairly straightforward legal issues, but for an unexpected perspective, see this amicus brief from the Freedom From Religion Foundation arguing that “the Court’s recent, unprecedented expansion of the religious liberty protections under the Free Exercise Clause necessitates the conclusion that a state-sponsored execution substantially bur- dens the decedent’s religious liberty rights. . . . [T]he the Court must conclude that the execution itself is a violation of the Free Exercise Clause. It would be absurd to continue reviewing increasingly granulated end-of-life details for any hint of an encroachment on religious liberty, knowing that a far greater burden, without any rational justification, will immediately follow.” (And many other briefs in Ramirez v. Collier.)

Wednesday, Nov 10

Just one case today, Austin v. Reagan National Advertising of Texas Inc. involving a First Amendment claim about signs and billboards. The City of Austin allows digital signs for “on-premises advertising” (at the location where the business is located) but not elsewhere. A sign company is calling this unconstitutional discrimination. The legal resolution will likely turn on whether the regulation is “content-neutral” or “content-based.” Content-neutral restrictions on speech need only satisfy “intermediate scrutiny,” meaning it advances an important government interest through means that are substantially related to that interest. The Fifth Circuit held that “Because an off-premises sign is determined by its communicative content, we hold that the Sign Code’s distinction between on-premises and off-premises signs is content based” and therefore was subjected to strict scrutiny (a compelling governmental interest and narrowly tailored) and failed that test.

The Court will then be in recess until the next set of arguments starting Nov 29.

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.

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.]

Feb 22 – March 3 Cases

With the Court removing from the calendar the “remain in Mexico” case (which had been scheduled for argument on March 1) in light of changed positions under the new Administration, the main focus of attention will be on the Voting Rights Act cases on March 2. But there are also cases involving immigration appeals, the “hot pursuit” doctrine, and the appointments clause. A quick reminder that C-SPAN seems to offer the most reliable stream to listen in live (at 10am; no second round of arguments on the days listed below), or see this page for ways to take in the arguments a bit later.

[Feb 22‘s sole case will have rather narrow appeal: Florida v. Georgia, “Whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region”]

Tuesday, February 23

The two cases today (consolidated for 1 hour of argument total) involve presumptions and procedures in immigration cases. In Rosen v. Dai, Dai sought asylum and testified that he would face torture if returned to China. The immigration judge and the Board of Immigration Appeals ruled against him, but never explicitly held that his testimony lacked credibility. On appeal, the 9th Circuit held that in the absence of such a finding, Dai was entitled to a presumption that his testimony was credible. Somewhat similarly, in Rosen v. Alcaraz-Enriquez the BIA relied on a probation report to find that Alcaraz-Enriquez was a danger to the community and therefore not entitled to withholding of removal, but did not explicitly find that his testimony (which contradicted the probation report) was not credible. In both cases, the Court has accepted cert. on “Whether a court of appeals can presume that an immigrant’s testimony is credible if an immigration judge or the Board of Immigration Appeals did not specifically find that he was not credible.”

Wednesday, February 24

Lange v. California is an interesting case about the limits of the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. A California Highway Patrol officer stopped Lange’s garage door from closing and entered his garage without a warrant, which would ordinarily be required under the 4th Amendment. However, the officer had followed him there after Lange refused to stop after the officer turned on the patrol car lights. The prosecutor argued that Lange’s “failure to yield” constituted exigent circumstances. But this all began simply because Lange was playing his car stereo loudly and honked his horn a few times. The Court has accepted cert. on “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.” In addition to the first link (a helpful overview of the case), see the decision below.

Monday, March 1

Three consolidated cases (one hour total) today involving the Patent Office and the “appointments clause.” The Constitution (Art. II § 2) requires that “Officers of the United States” be appointed by the President and confirmed by the Senate. The Court has interpreted this to mean “principal officers” who exercise considerable authority, not every federal employee. In late 2019, the Federal Circuit held that Administrative Patent Judges are principal officers and therefore the existing system of their being appointed by the Secretary of Commerce was unconstitutional — which raises all sorts of issues about the validity of prior rulings and how to proceed going forward, which the Federal Circuit has tried to narrow and navigate around. So now the Supreme Court is reviewing both whether the circuit was right about the problem (lack of proper appointment and confirmation of judges) and has identified appropriate responses to that problem. Specifically: “(1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”

Tuesday, March 2 — Voting Rights Act

A pair of cases (consolidated for 1 hour total, but expect it to run long) out of Arizona being argued today are among the most important of the term: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases have received considerable public attention and SCOTUSBlog has a very useful overview as well as a symposium reflecting a range of perspectives. So I’ll add just a brief note to provide some context before following those links.

The Voting Rights Act, among other things, prohibits voting procedures that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees” of other VRA protections. 52 U.S.C. § 10301(a). And it further specifies this violation can be established if the “political processes” are not “equally open to participation by members of a class of citizens.” § 10301(b). These provisions are typically referred to as “Section 2.”

These cases involve Arizona’s “out of precinct” policy (if you show up to vote and aren’t on the list, you can cast a provisional ballot; but if it’s later found that you weren’t on the list because you went to the wrong precinct, then the whole ballot is thrown out) and anti-“ballot harvesting” policy (which prohibits collecting and returning someone else’s ballot unless you are the voter’s family member or caregiver, or a mail carrier or election official). The 9th Circuit found that both these policies violated the VRA because they had a disproportionate impact on minority voters and this effect was linked to social and historical conditions that created inequality of opportunity to participate in the election process.

Beyond the legality of these policies, advocates are hoping the Supreme Court will clarify the standards to be used in VRA § 2 cases. The ARP v. DNC case’s questions presented highlight this: “(1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly ‘unfounded’ concerns about voter fraud.”

Wednesday, March 3

The cases today (Carr v. Saul and Davis v. Saul, consolidated for 1 hour total) also involve the “appointments clause” that was at issue in the March 1 Patent Judges cases, but this time the argument is about a procedural issue that is preliminary to the constitutional question: “Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.”