About that one Gorsuch opinion….

Yesterday’s Supreme Court decision that Title VII of the Civil Rights Act of 1964 prohibits firing an employee simply because of sexual orientation or gender identity is truly momentous and will mean improved employment security for countless people throughout the country, notably those who live in the majority of jurisdictions with no state- or local-level prohibition on such discrimination. Beyond that wonderful take-away, there is a lot to digest. Much of the mainstream coverage matches my thoughts when I was reading the opinion, but I have a few additional thoughts I’d like to set out regarding Justice Gorsuch’s role and the similarities and differences between this decision and the sexual orientation cases of recent years.

That an opinion prohibiting LGBT discrimination would come from Justice Gorsuch is certainly a major surprise, but Reagan-appointee Justice Kennedy was no obvious ally when he wrote Lawrence v. Texas (striking down sodomy laws) in 2003 or US v. Windsor (striking down the federal Defense of Marriage Act) ten years later, and we were still on the edge of our seats in 2015 before he released the majority opinion in Obergefell v. Hodges (holding that the 14th Amendment requires the state to recognize same-sex marriage). (As an aside, all those decisions were issued on June 26. Yesterday was a break from what some people thought was a tradition, even if based on a very small sample size.)

Still, there is a notable difference in style and tone. The opening paragraph in Lawrence declares that “[t]he instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Obergefell begins “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” and Kennedy gets more poetic and philosophical from there.

In contrast, Bostock begins “[s]ometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” It then adds that “[i]n our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” but that’s as close as we get to recognition of the importance of the rights at issue in these cases. The emphasis — the chosen framework — is on the meaning of the words in the statute; an academic exercise rather than an examination of the principles of rights.

That difference is legally appropriate and, to some extent, required because Kennedy was interpreting constitutional provisions that required him to expound the meaning of “liberty” while Gorsuch was charged with interpreting the meaning of the word “sex” in a Congressional statute. Moreover, other cases had already made clear that “sex” includes sex stereotyping and sexual harassment, and that the statute prohibits other kinds of discrimination that might be given a label that is not one that actually appears in the text of the statue. It is very hard to see an intellectually satisfying way to say LGBT discrimination is not sex discrimination if we’ve already accepted that it is unlawful to discriminate against a woman for being a “tomboy” (to say nothing of the fact that we also (almost) universally accept that it is discrimination on the basis of race even if the person has no bias against any individual’s race but only interracial marriage).

So the Gorsuch opinion is rather bland as judged by its analysis and certainly by its rhetoric. His approach is methodical: there’s a statute that uses specific words, we have established analytical frameworks for how we decide what those words mean as well as significant relevant precedent, and so Gorsuch went through a routine analytical process and came to a logical conclusion.

What is remarkable is that he did not shy away from his own conclusion. It is reassuring that he would rule in a way that almost certainly is against his personal political views and it is deeply troubling that it’s remarkable to us that a Supreme Court Justice appointed by Trump actually cares about analytical consistency and intellectual honesty.

This most certainly does not mean that he is likely to side with what remains of the liberal wing of the Court as a general matter. It doesn’t even mean that he has moderated his views or shifted to an understanding of the law that is closer to those who believe in a “living constitution” or employ other analytical frameworks that more often lead to progressive conclusions. It only means that he might not engage in the kind of tortured logic on display in the dissenting opinions in order to avoid a particular outcome when his own legal analysis happens to bring him to a conclusion that is also one a progressive (or even someone like Posner) might arrive at through different means.  (My initial reaction to Obergefell five years ago also noted that Kennedy got there through a narrow framework that was less valuable for other LGBT rights issues.)

We’ll have to see if this lasts, and it will only be relevant in rare instances. The way Gorsuch approaches other legal issues (such as the free exercise clause and how it applies the the ministerial exception, to mention just one case that should be decided later this month) almost certainly won’t wind up pulling him to conclusions that conflict with his ideology. Regardless, it’s nice to be surprised in this way. Scalia used to occasionally rule in ways that contrasted with how people thought of him, Roberts has repeatedly done so now, and it looks like there’s another Justice who just might surprise us from time to time.

May cases

For the first time ever, it will be possible to listen to Supreme Court arguments as they happen from outside the building. C-SPAN has confirmed that it will provide live coverage and identify the Justice who is speaking. Presumably SCOTUSBlog will stream live as well. (If you can’t listen live, there will still be after-the-arguments options. From the Court’s website, you can get transcripts the same day as the arguments and the audio is released that Friday.  In addition, on Oyez you can get transcript-synchronized audio; it’s not available quite as immediately, but the transcript scrolls and highlights automatically as you listen.)

Next week brings cases involving trademarks, compelled speech, the ACA birth control mandate, and robocalls as free speech.  The following week is even more contentious, with Trump subpoenas, faithless electors, and religious exemption from nondiscrimination laws. 

Monday, May 4

For the first day of teleconference arguments, the Court is starting with just one case, US Patent & Trademark Office v. Booking.com. It may not have terribly broad allure, but it’s an interesting trademark case. You cannot trademark a generic term, but can you trademark “[generic term].com”? For a useful overview, see this “Brief amici curiae of Trademark Scholars in support of neither party.”

Tuesday, May 5

Also just one case today, United States Agency for International Development v. Alliance for Open Society International, Inc. It is an important case involving First Amendment limits on conditions for federal funding. Congress originally provided funding for HIV intervention programs subject to two restrictions: (1) no funds “may be used to promote or advocate the legalization or practice of prostitution,” and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.”  In 2013, Alliance for Open Society won in an earlier Supreme Court case with the same name, which held that the second restriction “violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). The case today asks whether that principle protects only this US-based organization or extends “to legally distinct foreign entities operating overseas that are affiliated with” the organization.

Wednesday, May 6

The Affordable Care Act’s birth-control mandate is the issue in two consolidated cases that will be argued first today, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania. These are cases that would have drawn huge crowds, long lines, and demonstrations in front of the Court in pre-covid times.  Scotusblog has a very helpful overview. Briefly, it is important to note the administrative law concerns that will complicate the argument.  The ACA left many details to the Department of Health and Human Services to enact through administrative rulemaking.  Initially, those rules required health insurance plans to include birth control at no cost to the women but exempted religious institutions and included an “opt-out” system for religious nonprofits. The 2014 Hobby Lobby decision gave for-profit religious companies access to that opt-out. There was then a challenge to that opt-out process, but with Justice Scalia’s death and the prospect of a 4-4 split on such an important issue, the Supreme Court sent the cases back in hopes of a compromise. And now, HHS under the Trump administration has rewritten the rules, allowing any employer with a religious or moral objection to opt out.  New Jersey and Pennsylvania have challenged those Trump administration rules as inconsistent with the ACA and as violating other principles of administrative procedure, particularly since the final rules relied on interim rules that did not allow for the usual public comment period. The Court will need to address a number of technical administrative procedure questions as well as the substantive.  So I strongly recommend taking some time to understand the argument preview before trying to follow along with the oral arguments. 

The second argument today is robocalls as free speech.  Back 1991, the Telephone Consumer Protection Act outlawed automated calls to cell phones, except for emergency calls or with the consumer’s prior consent — and importantly, the law was amended in 2015 to allow debt collection calls for federally guaranteed loans. 47 U.S.C. § 227. In Barr v. American Association of Political Consultants, a group that would like to use automated calls for political purposes is challenging the law on First Amendment grounds, arguing that by making exceptions for certain types of calls, the law discriminates on the basis of content (which is highly disfavored and subject to strict scrutiny under longstanding First Amendment doctrine).  Interestingly, Public Citizen is supporting the law, and their amicus brief is worth reviewing along with the scotusblog overview.

Monday, May 11

The first case today, McGirt v. Oklahoma, is an interesting if rather narrow question of tribal sovereignty: “Whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction.” 

Most attention today will be on the second argument, a pair of consolidated cases involving the “ministerial exception” to employment discrimination laws, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. The cases today involve teachers at Catholic schools who allege they were discriminated against on the basis of age and disability.  The issue is whether the teachers are “ministers,” within the meaning of the exception that the Court has previously held the First Amendment requires in order to prevent excessive state governance of churches. There’s a useful NY Times article about the cases, and an interesting perspective from Clergy and Laity United for Economic Justice in their amicus brief

Tuesday, May 12 — Trump subpoenas 

Two major arguments today.  First are the cases involving Congressional subpoenas to banks and accounting firms seeking records related to President Trump and his businesses.  In Trump v. Deutsche Bank, the House Committee on Financial Services and the House Permanent Select Committee on Intelligence sought records as part of an investigation into possible foreign influence in U.S. elections; in Trump v. Mazars, the House Committee on Oversight and Reform subpoenaed an accounting firm for documents as part of its investigation into possible reform of government ethics laws. In both cases, Trump is asserting that the committees do not in fact have a “valid legislative purpose.”  In essence, this is about presidential immunity from congressional oversight. The backdrop includes Supreme Court cases that expressed concern with the executive branch’s ability to function but ultimately sided with Congress in disputes with Presidents Nixon and Clinton. 

The second argument also involves Trump business records, but in Trump v. Vance they were sought by a grand jury. Grand jury records are sealed, but it appears to involve the Manhattan District Attorney’s investigation into hush money to silence Stormy Daniels during the 2016 campaign, and whether any of those payments led to false business and tax filings in violation of state law. Trump sued to block the subpoena to his accounting firm, claiming that the president is immune from criminal investigations while in office.  In rejecting that argument, the Second Circuit relied heavily on US v. Nixon

Scotusblog has a useful overview as well as a symposium reflecting a range of views. 

Wednesday, May 13 — “faithless electors”

Both cases today involve “faithless electors” (individuals at the Electoral College who do not vote according to the state’s popular vote) at the 2016 election.  They have not been consolidated; each will be argued separately for one hour. 

A few electors from Washington cast a vote for Colin Powell even though Hillary Clinton had won the state.  Washington fined them $1,000.  The issue in Chiafalo v. Washington is “whether enforcement of a Washington state law that threatens a fine for presidential electors who vote contrary to how the law directs is unconstitutional because a state has no power to legally enforce how a presidential elector casts his or her ballot and a state penalizing an elector for exercising his or her constitutional discretion to vote violates the First Amendment.” 

Similarly, a few electors from Colorado voted for John Kasich.  Colorado responded by replacing them with electors who would vote as instructed. The issue in this second case, Colorado Department of State v. Baca, is “(1) whether a presidential elector who is prevented by their appointing state from casting an electoral-college ballot that violates state law lacks standing to sue their appointing state because they hold no constitutionally protected right to exercise discretion; and (2) whether Article II or the 12th Amendment forbids a state from requiring its presidential electors to follow the state’s popular vote when casting their electoral-college ballots.”

Again, Scotusblog has a useful overview and a symposium with a range of views. 

Rescheduled and Postponed Cases

There has been a lot of attention to yesterday’s Supreme Court announcement that it will conduct a teleconference to hear oral arguments in some cases that had been scheduled to be heard in March and April. Currently, the Court is contacting the parties and deciding which cases will be heard on which dates (May 4, 5, 6, 11, 12 or 13). I’ll provide a blurb about each case when we know when they will be heard, as well as details about how to listen in. It appears that – for the first time ever – the Court will give direct access to media outlets, and that they will in turn be able to provide public access.

Meanwhile, it’s worth noting the cases not yet rescheduled. There are 11 cases that had been on the Court’s schedule before the COVID-19 disruptions, are not on yesterday’s press release, and now instead appear to be postponed until some time in the next term (after the Court goes on summer recess and then returns on the first Monday in October). They are:

  • Two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.
  • Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use.  See the amicus brief from the Electronic Frontier Foundation.
  • An important “no fly list” case brought in part under the Religious Freedom Restoration ActTanzin v. Tanvir.  Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

  • Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’”  The Brennan Center is heavily involved in such issues and has an amicus brief that should provide a good foundation.
  • Torres v. Madrid, “Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a “seizure,” as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.
  • Pereida v. Barr, “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.
  • The remaining cases are ones that I would not have highlighted on this site, since they won’t be of much public interest or really accessible to the casual observer: Chicago v. Fulton (a technical bankruptcy issue); Texas v. New Mexico (a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact”); Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court (technical civil procedure issues); and Rutledge v. Pharmaceutical Care Management Association (an ERISA preemption issue).

Week of March 23

[EDIT: The March arguments are postponed.]

The Supreme Court building “is closed to the public” but “will remain open for official business.”  It’s not entirely clear what this means for oral arguments, and particularly for members of the public or members of the Supreme Court Bar who wish to observe the arguments.  As of posting, there are no docket entries suggesting that next week’s cases will not be heard as scheduled.

Assuming arguments go forward — and regardless of whether or not you could attend — this may be a good time to learn about the availability of audio recordings and transcripts!  From the Court’s website, you can get transcripts the same day as the arguments and the audio is released that Friday.  In addition, on Oyez you can get transcript-synchronized audio (the transcript scrolls and highlights automatically as you listen). It’s a great service. Scroll to the bottom of the page to see the latest; go to the case page then click the link in the left column. I’m not sure how long they take, but seem to be fairly quick to produce this after the audio is released.

There are some important and interesting cases coming.  I’ll note next week’s cases now, and add a new post for the week of March 30 when there’s more certainty about what’s happening in response to concerns about the pandemic.

Monday, March 23

Two consolidated cases (one hour total) are up first, and involve the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.

Next up is an interesting trademark case, US Patent & Trademark Office v. Booking.com.  You cannot trademark a generic term, but can you trademark [generic term].com? For a useful overview, see this “Brief amici curiae of Trademark Scholars in support of neither party.”

Tuesday, March 24

Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use.  See the amicus brief from the Electronic Frontier Foundation.

An important “no fly list” case brought in part under the Religious Freedom Restoration Act, Tanzin v. Tanvir, is the second argument.  Oyez offers a useful overview:

The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.

Wednesday, March 25

Two First Amendment cases today.  First is Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’”  The Brennan Center is heavily involved in such issues and has an amicus brief that should provide a good foundation.

Finally, United States Agency for International Development v. Alliance for Open Society International, Inc., involves First Amendment limits on conditions for federal funding. Congress originally provided funding for HIV intervention programs subject to two restrictions: (1) no funds “may be used to promote or advocate the legalization or practice of prostitution,” and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.”  In 2013, Alliance for Open Society won in an earlier Supreme Court case with the same name, which held that the second restriction “violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). The case today asks whether that principle protects only this US-based organization or extends “to legally distinct foreign entities operating overseas that are affiliated with” the organization.

February & Early March Cases

The next block of arguments will occur in the last week of February and first week of March—with a large number of very significant cases. It starts with an important case involving federal lands that has not received much attention, followed by other important cases including a really interesting one in the context of free speech related to illegal immigration and another questioning the whole “expedited removal” process, then the CFPB case, and finally ending on March 4 with one of the more high-profile cases of the term, involving access to abortion.

Monday, February 24

First is a case that has not received much public attention but represents an important contest over whether the Trump Administration can authorize commercial activity on federal land in apparent violation of enacted laws. The Federal Energy Regulatory Commission awarded a right-of-way to Atlantic Coast Pipeline LLC so it could construct a natural gas pipeline across the Appalachian Trail within the George Washington Forest, despite laws that specify that such rights-of-way may be granted on federal lands “except lands in the National Park System.” 30 U.S.C. § 185(b)(1). An environmental organization successfully sued to block this action, with the Fourth Circuit holding that the Appalachian Trail is a “unit” of the National Park System and therefore the Mineral Leasing Act “specifically excludes” the Trail “from the authority . . . to grant pipeline rights of way.” The Administration is arguing, among other things, that the Appalachian Trail is not “land” within the meaning of these laws, which one group of amici seized on: “Petitioners’ first response (USFS Br. 19; ACP Br. 18) to that straightforward reading of the relevant statutory texts is that the AT is not ‘land’ at all but is instead merely ‘a trail’ or ‘a footpath’ that metaphysically crosses land. That argument is too clever by half.” I recommend reviewing that brief from NRDC and other groups, which offers a useful overview of the arguments. [There are two cases, US Forest Service v. Cowpasture River Assn. and Atlantic Coast Pipeline, LLC v. Cowpasture River Assn., but they have been consolidated for a total of 1 hour of argument.]

The second case is a terrorism case that also has not received much attention, likely because it involves fairly technical issues of interpretation of the Foreign Sovereign Immunities Act. The suit is against Sudan and alleges that it sponsored Al-Qaeda and bears liability for deaths and injuries of US government employees and contractors in the 1998 embassy bombings in Kenya and Tanzania.  Congress amended the FSIA in 2008 to allow for punitive damages in cases of state-sponsored terrorism; the question for the Court today is whether that amendment applies retroactively. Opati v. Republic of Sudan.

Tuesday, February 25 

Today is an important First Amendment case in the context of illegal immigration. Federal law provides for imprisonment of anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” 18 U.S.C. § 1324(a)(1)(A)(iv). Based on those words alone, the statute might be read to criminalize a wide range of political advocacy that would be Constitutionally protected, such as editorials describing immigration law as immoral and illegitimate bars on entry by people fleeing oppression. Although incitement and solicitation of illegal activity may be criminalized under longstanding First Amendment doctrines, “abstract advocacy” of illegal activity is free speech. The line is often difficult to describe and cases typically address the issue in theoretical terms. That’s the case in today’s US v. Sineneng-Smith. Evelyn Sineneng-Smith continued to file green card applications (and charge her clients) under a specific program even though that program had ended.  She was convicted of both mail fraud (which is no longer being contested) and under this “encourage or induce” provision.  Speech that is part of a criminal scheme is not protected, but in First Amendment cases, we often look to the language of the statute and courts will strike down the law if it is “overbroad” even if the specific defendant before them did something that the Constitution would allow the government to criminalize under a more carefully drafted statute. Prof. Eugene Volokh’s amicus brief offers a compelling examination of the importance of the questions in this case.  There’s also an interesting NYT article about the case. 

Wednesday, February 26

The only case today is a technical issue under the Prison Litigation Reform Act, involving how to count the number of “strikes” against a prisoner who has had prior lawsuits dismissed.  It’s not one I would recommend to the casual observer. Lomax v. Ortiz-Marquez

Monday, March 2

Two important immigration cases today, both involving different aspects of the power of the courts over the immigration process.  The first, Nasrallah v. Barr, involves a member of the Druze religion who had been granted asylum in 2006 on the basis of an incident in which Hezbollah fired weapons at him and forced him to jump off a cliff to escape.  But in 2013 he was convicted of receiving stolen property, which triggered a removal process.  An immigration judge deferred removal, finding that he likely would face persecution if returned to Lebanon, but the Board of Immigration Appeals found that he was not in fact in danger because the guns weren’t aimed at him and he “voluntarily jumped.”  The 11th Circuit refused to examine that finding, holding that it lacked power to review factual findings by the BIA.  The Supreme Court has granted cert. on “whether the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief.” See this interesting amicus brief from a group thirty-three former immigration judges and members of the BIA, which argues that “[i]n light of the immense resource constraints of immigration courts, which amici experienced firsthand, it is crucial to have Article III court review of the underlying basis for a grant or denial of a [Convention Against Torture] claim.”

The second case, DHS v. Thuraissigiam, reviews a 9th Circuit decision that called into question the entire “expedited removal” process, finding that it lacked the “meager procedural protections” that the Supreme Court had required even for enemy combatants in Guantanamo — and therefore the statute denying courts authority to hear habeas petitions was invalid under the Constitution’s “suspension clause.”  The Circuit decision itself offers a useful overview of the law and the circumstances this immigrant faced; also see this ABA Journal article and the organization’s amicus brief

Tuesday, March 3

The legitimacy of the Consumer Finance Protection Bureau is being challenged on the basis of separation-of-powers concerns in Seila Law v. CFPB. The Constitution vests the President with the authority and duty to “take care that the laws be faithfully executed,” and this has traditionally meant broad authority to remove the heads of administrative agencies.  But Congress on occasion creates “independent agencies” (with varying levels of actual independence) that it wants insulated from the political process.  That’s been challenged on occasion as inconsistent with the constitutional scheme, but the Court has upheld various restrictions Congress has put on Presidential power over those agencies. CFPB is at the end of the continuum, though: it is funded independently through the Federal Reserve system and has only one director who serves a 5-year term and cannot be removed except for “inefficiency, neglect of duty, or malfeasance in office.” The case raises the question of whether Congress may so restrict the President’s authority to remove an administrative officer, but the Court may not reach that issue.  It could instead read the “for cause” clause so broadly as to negate any separation-of-powers concerns, or it could hold that the petitioner lacks standing to raise the issue (it’s a law firm that refused to comply with a subpoena when the CFBP was investigating its telemarketing practices for consumer debt-relief services, which is a bit removed from the Constitutional issues). Scotusblog offers a useful overview and a symposium with a range of views.
          There’s a lot of politics surrounding this case.  Elizabeth Warren had a very significant role in the creation of the CFPB.  Trump’s Solicitor General has declined to defend the constitutionality of the CFPB, so the Court asked Paul Clement (the Solicitor General under George W. Bush) to step in (he’s defended the structure but urged the Court not to reach that issue).  And Justice Kavanaugh dissented when the issue was raised in a similar case when he was still on the DC Circuit (PHH Corp. v CFPB was decided 7-3 in favor of CFPB by the full DC Circuit in 2018). 

The second case is an important but fairly procedural securities law issue. “Disgorgement” is essentially an order to surrender the ill-gotten gains.  A 2017 Supreme Court case (Kokesh v. SEC) held that disgorgement is a form of “penalty” that is subject to a statute of limitations, but it left open the question of whether disgorgement was available as an “equitable remedy” (the ancient common law power of courts to craft appropriate responses to findings of guilt) in SEC enforcement actions when the statute of limitation is not a bar. Liu v. SEC asks that question directly.  There’s an interesting NYT article that provides and overview and some details of the enforcement action, and this amicus brief by securities law scholars should really help you to follow the arguments. 

Wednesday, March 4

Abortion cases are some of the most contentious and heavily watched argument days, and that was before the most recent batch of state laws following the presidential election. The June Medical Services cases (one with Russo as the petitioner and the other with him as the respondent; earlier cases will list Gee, the prior Secretary of the Louisiana Department of Health) involve a Louisiana law that requires doctors who perform abortions to have admitting privileges in a hospital with 30 miles.  If that sounds familiar, it’s because the Court struck down a very similar Texas law in 2016 in Whole Women’s Health v. Hellerstedt. There, the Court found an “undue burden” after looking at the obstacles the law created as balanced against the benefits of the law.  It noted that the benefits were minimal: complications are very rare and most occur in the days following the procedure, after the woman had gone home. As to burden, in the Texas case the record showed that about half the state clinics had been forced to close.  Louisiana is focused on the “burden” half of the equation, arguing that it won’t be as serious there because the state only has 3 clinics and 4 abortion doctors total, and one already has admitting privileges and the others should be able to satisfy the new requirement. Again Scotusblog offers a symposium collecting a range of views. 
          This case will draw a huge crowd.  Lines to get into the courtroom will form the day before (with some probably arriving days before), but one former student got in (barely!) for the LGBT/Title VII case in January by joining the line in the early afternoon the day before.  So obviously no guarantee, but I’d say that if you’re willing to spend 24 hours in line, you’ve got a chance.  If you’re not, then it can be a great experience to go to take in the demonstrations outside the Court.  Protests will start during commuter hours the morning of the arguments and continue until the arguing counsel leave the court and give interviews and speeches out front.  During and immediately after arguments are typically when the crowds outside are biggest and most active.  The two cases are consolidated for one hour of argument, but they are the only arguments scheduled for today so I would expect them to run a little long.  With bar admissions and decision announcements starting at 10:00, I would expect arguing counsel to be leaving the Courthouse around 11:30.  

January cases

The Court returns from the holidays for oral arguments on January 13. This month starts with “bridgegate,” takes up other important criminal law and other issues, and ends with a major church-state case.

[arguments on Jan 13 involve technical ERISA and preclusion issues and are not recommended for the casual observer]

Tuesday, January 14

Kelly v. US is a really interesting public corruption case, involving criminal prosecutions that followed “bridgegate” – the September 2013 decision to create a traffic nightmare on the George Washington Bridge to punish the Fort Lee mayor for refusing to back then-NJ Gov Chris Christie. After all the public scandal, prosecutors noted that public funds had been wasted in putting on a fake “traffic study” as cover for the true motives, as well as changing and then restoring the traffic pattern. Two people were ultimately convicted of felonies: they used deception to cause the Port Authority to expend resources, which meets the statutory offenses of fraud and wire fraud (because some of the scheme was conducted by email).  The Third Circuit upheld those convictions. In seeking Supreme Court review, the defendants urge that reading the fraud statutes so broadly “would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.” Scotusblog has a useful overview of the factual events and a symposium with a range of views.

The second case today, Romag Fasteners Inc. v. Fossil Inc., is not one I would ordinarily recommend to a casual observer but may be worth staying for after the first argument. It is a question of interpretation of the Lanham Act, involving trademark and copyright infringement. Some courts have read a “willfulness requirement” into the statute, requiring the infringer to turn over (“disgorge”) all profits only if the infringement was willful.  Here, Fossil was found to have acted in “callous disregard” for Romag’s intellectual property, but not willfully. Most of the legal organizations are lining up against Fossil, arguing that willfulness is not required if the judge otherwise finds that the circumstances of the infringement support an award of profits. A useful summary of the sides is here.

Wednesday, January 15

The only case today asks whether the Age Discrimination in Employment Act requires but-for causation or only that age was a motivating factor, in the context of federal employees.  ADEA requires (for employees aged 40 and over) that employment actions in the federal sector “shall be made free from any discrimination based on age.”  For many employment discrimination laws, it is well established that a plaintiff need only prove that the discrimination was a motivating factor, not that the action would not have been taken “but for” the employee’s race, religion, etc. For example, after much litigation on this, in 1991 Congress amended Title VII to make explicit that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000-e2(m). However, in 2008 the Supreme Court held in Gross v. FBL Financial Svcs that the ADEA provision involving private sector employees required but-for causation. But the provision involving private sector employees prohibits actions “because of such individual’s age,” and the plaintiffs here (federal employees) argue that the earlier-quoted language that applies to them, “free from any discrimination” is broader. See the Harvard CR-CL discussion for more detail about this case, Babb v. Wilkie.

[The Court observes Dr. King Day on the 20th]

Tuesday, January 21

Shuar v. US is an important consideration of the Armed Career Criminal Act. If a defendant is convicted of unlawful gun possession under federal law, ACCA requires the court to impose a mandatory minimum sentence of 15 years if the defendant had three prior convictions for a “violent felony” or “serious drug offense.” What constitutes a “violent felony” has been heavily litigated, and the Court has settled on a “categorical approach,” which considers only the nature of the crime rather than the individual’s specific conduct. So a conviction for burglary is a prior conviction for a violent felony, even if no force or violence was actually employed in that particular burglary. The Court has never squarely addressed whether this categorical approach applies to determining what is a “serious drug offense” as well. That’s the issue in this case, but with an unexpected wrinkle:  if the court looks only to the statutory elements of the drug crimes for which Shuar was previously convicted (and not to his actual conduct), they would not be “serious” under the ACCA. This case has not received much public attention, but the NACDL amicus brief is quite readable and should help to provide a good grounding in the issues.

Today’s second case is not recommended for the casual observer. Although mandatory arbitration is a developing and important area of the law, GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is a more technical issue: “Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.”

Wednesday, January 22

The separation of church and state is before the Court today in Espinoza v. Montana Dept of Revenue. It involves tax breaks for donations to scholarships supporting attendance at private schools, and whether those scholarships can be used at religious schools. The tax office initially prohibited using those scholarships at religious schools. In order to avoid either discriminating against or supporting religion, the Montana Supreme Court struck down the whole program; no taxpayer support of religious or non-religious private schools. Church-state issues have been before the Court repeatedly in recent years, but we still lack a clear and coherent framework for resolving just how much (as the state put it) “room for play in the joints” there is between the free exercise clause (that prohibits unduly discriminating against religion and religious schools) and the establishment clause (that prohibits excessive governmental support for religion). Scotusblog has a good symposium; start with Amy Howe’s overview and then look at some of the disparate arguments.

October 2019

“First Monday” this year is October 7, when the Court returns from summer recess to hear the first set of arguments this term.  The Court typically hears arguments on Mondays, Tuesdays, and Wednesdays for two weeks in a row each calendar month.  Further information amount attending arguments are on this page.  This term, the Court will quickly take on some high-profile cases, involving Title VII coverage of sexual orientation and gender identity discrimination, a defendant’s right to a unanimous verdict, life without parole for one of the DC-area snipers, and other issues.  Those cases are discussed below.

Looking ahead, I will offer a post before the November arguments, which will include cases involving DACA and other immigration issues, the Clean Water Act, and police accountability.  Looking even further ahead, the Court has agreed to hear, but has not yet scheduled arguments in, cases involving environmental law, the Second Amendment, the death penalty, religious establishment, mismanagement of employee retirement funds, and other issues.  I will offer recommendations regarding those cases in the weeks before they are argued. This term is going to include a lot of cases that will generate great public interest.

Monday, October 7

The term opens with a case involving legal insanity and the death penalty, Kahler v. Kansas. Legal insanity means different things in different states.  Some states instruct the jury to consider whether the defendant was capable of understanding right from wrong and was morally responsible.  But in Kansas, a jury can consider mental capacity only as indication that the defendant did not have the mens rea (essentially, the intent required under the law) — in the case of murder, an intent to kill.  So in a classic example that the ABA notes in its brief, a father “who knowingly and intentionally killed his son under the psychotic delusion that he was the biblical Abraham, and his son the biblical Isaac” would not be legally insane under the Kansas standard. Predictably, this case has generated a large number of amicus briefs, and I strongly recommend reviewing at least one or two before the arguments to get a sense of some of the legal tests and positions that will be argued.  I also recommend arriving very early — these sorts of cases always draw a large crowd, as does First Monday even without a case that’s so contentious.

The second case this morning will not generate nearly as much public interest. Peter v. NantKwest Inc. involves the fees that someone has to pay to appeal the denial of a patent.  If you plan to stay for this argument (there will be a short break and many people will leave the courtroom after Kahler), read the overview here.

The Court will also hear an afternoon argument — an important one involving the right to a unanimous jury verdict.  Ten jurors found Ramos guilty of second degree murder, but two jurors voted to acquit. At the time, that was good enough to convict him under Louisiana law (although that changed with a state constitutional amendment in 2018, requiring unanimous verdicts going forward; only Oregon still allows split juries). The current state of the law is confused, at least according to Ramos’s attorneys.  The last time the Supreme Court directly decided this issue was in 1972, when it ruled that states could authorize convictions with less-than-unanimous juries.  However, it was a plurality opinion — no single view of the constitutional issues commanded a majority of the justices. Moreover, since then, the Court has been more emphatic that there should be “no daylight” between state and federal standards when Bill of Rights principles are “incorporated” by the 14th Amendment as applying to the states; and the Court has held that the 6th Amendment requires unanimous verdicts in federal criminal trials. This “incorporation doctrine” will be important in the arguments.  Also note the racism that underlies these provisions: at the founding, all states and the federal system required unanimous verdicts, but Louisiana changed that after Reconstruction allowed for black jurors and Oregon did so in 1934 amid public outrage over immigration. The primary brief covers these and the legal issues quite well, and there are a large number of briefs from advocacy organizations on his side; Louisiana is alone, but you can see all the briefs here.

Lines for afternoon arguments are hard to predict because they are relatively rare (although there’s another one next week). Many members of the public don’t know about afternoon arguments, although this one is significant enough that it could draw a crowd of interested lawyers and law students. Some people who arrive for the 10am arguments but don’t get in may also decide to be first in line for this 1pm argument.

Tuesday, October 8

The cases today involve employment discrimination on the basis of sexual orientation and gender identity — some of the most high-profile cases of the term. Although many states and cities have non-discrimination laws that specifically prohibit discrimination on the basis of sexual orientation or gender identity, many others do not and federal law does not include such phrases.  However, Title VII of the Civil Rights Acts prohibits discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2. Courts and others have disagreed about whether this language includes sexual orientation and gender discrimination. It’s unlikely Congress had this type of discrimination in mind when it wrote the law, and for some, that is enough to defeat such claims.  For an example of the opposite conclusion, there’s a remarkable 7th Circuit case, Hively v. Ivy Tech., in which the majority found for a lesbian based on a logical analysis that her sex was the reason for the discrimination:  a) the employer discriminated against her because she was in a relationship with a woman; b) if an otherwise identical employee were male and in a relationship with a woman, the employer would not have treated her this way; c) therefore, sex is the definitive variable and the discrimination was because of the employee’s sex. The majority reasoned that this analysis comports more with the judge’s role to apply the plain language of the law, not guess at what Congress had in mind when it chose that language.  In a concurring opinion, Judge Posner (a much-celebrated jurist who has since retired) was more bold, declaring a refusal to be an “obedient servant[] of the 88th Congress” and instead saying he was engaged in “judicial interpretive updating” of the law.

But that’s not the case being heard today….  I just find the two opinions to represent fascinating reasoning and exchange, and a good starting point for understanding why this is an issue.  For the cases today, listen to this ScotusTalk podcast and review the scotusblog overview, and see the many filings in the cases at the following links.  Briefly, Altitude Express Inc. v. Zarda and Bostock v. Clayton County both involve sexual orientation discrimination.  They will be argued together in the first hour.  In the second hour, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC will take on transgender discrimination.

People will begin lining up to hear these arguments some time on Monday, if not before.  If you are not willing to spend the night on the sidewalk, consider going to the Court to hear and/or take part in the demonstrations.  I would expect protests starting around 8am and they certainly will continue until after noon, when the arguments will end and arguing counsel will make their way to the sidewalk in front of the court to give speeches and interviews.

[No arguments are scheduled for Wednesday the 9th, and the Court is closed on Monday the 14th for Columbus Day.]

Tuesday, October 15

There are 5 cases today, all consolidated to be argued together.  The cases involve the authority of members of the Financial Oversight and Management Board created by the 2016 Puerto Rico Oversight, Management, and Economic Stability Act. Congress gave the Board broad powers, in response to a “fiscal crisis” — and it also authorized the President to appoint Board members without them being confirmed by the Senate. That’s a problem because the “appointments clause” says all Officers of the United States shall be appointed “by and with the Advice and Consent of the Senate” and Congress only has the authority to authorize the President alone to appoint “inferior Officers.” U.S. Const. Art. II, § 2. The line can be a little murky–the Supreme Court has said Officers are those who exercise “significant authority”–but these Board members had authority to rescind or revise laws and exercise other powers that almost certainly are inconsistent with their being mere “inferior Officers.” So a hedge fund and a union representing government workers sued to reverse Board actions on the basis that the Board Members did not have any authority because they were not confirmed as required by the Constitution.  The First Circuit agreed that their appointments were unconstitutional but declined to reverse their actions, on the basis of the “de facto officer doctrine” and a finding that there would be “negative consequences for the many, if not thousands, of innocent third parties who have relied on the Board’s actions until now.” The Supreme Court has granted cert. on the question “Whether the de facto officer doctrine allows for unconstitutionally appointed principal Officers of the United States to continue acting, leaving the party that challenges their appointment with an ongoing injury and without an appropriate relief.”

Wednesday, October 16

The first case today raises complex issues relating to preemption doctrine — but it does so in the context of undocumented immigration.  Garcia was already under investigation by a financial crimes detective when he was pulled over for speeding and told the traffic officer he was rushing to his job.  The routine check revealed the ongoing financial investigation, the officer and detective talked, and the next day the detective obtained Garcia’s I-9 form from the employer.  That form used a Social Security Number issued to another person.  Garcia was then charged under state laws against identity theft.  This has obvious political implications. The legal issue is that the I-9 form is part of a federal system, and the federal law specifies that the form and information on it “may not be used for purposes other than for enforcement of this chapter and [certain specified federal laws].” 8 U.S.C. § 1324a(b)(5). The Kansas Supreme Court held that “Garcia’s conviction must be reversed because the State’s prosecution based on the Social Security number was expressly preempted.”  The US Supreme Court has accepted cert. on “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents.”

The second case today, Rotkiske v. Klemm, asks when the statute of limitations begins to run under the Fair Debt Collection Practices Act. A debt collector filed suit against Rotkiske but could not serve him because he no longer lived at the address and so withdrew the suit, but then refiled and served someone at the same old address, which the collector should have known was outdated.  Rotkiske had no idea, and had a default judgment entered against him. He did not learn of this until years later, when he tried to obtain a mortgage.  The issue for the Court is whether the statute of limitations begins to run when the misconduct occurs or when the plaintiff discovers the misconduct. The Fourth and Ninth Circuits have found a “discovery rule” but the Third Circuit in this case disagreed, holding that “the Act says what it means and means what it says: the statute of limitations runs from “the date on which the violation occurs.”

There is also an afternoon (1pm) argument today, challenging the life without parole sentence for one of the “DC area snipers” who was 17 at the time of the murders. This is another case with a lot of publicity. Malvo was sentenced in Virginia in 2004 to a term of two life sentences without the possibility of parole. The sentences were pursuant to pleas, under pressure of being charged with capital offenses.  A year later, the Supreme Court ruled that the death penalty was unconstitutional when the offense was committed by a minor.  In 2010, Miller v. Alabama held that mandatory life without parole was unconstitutional when the offense was committed by a minor. And in 2016, the Court clarified, in Montgomery v. Louisiana, that these rulings were to be applied retroactively. Therefore in this case, the 4th Circuit held that Marvo had to be re-sentenced.  He might still face life imprisonment, but the trial court was instructed “to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his ‘crimes reflect permanent incorrigibility’ or (2) whether those crimes instead ‘reflect the transient immaturity of youth,’ in which case he must receive a sentence short of life imprisonment without the possibility of parole.” The state, on the other hand, urges that these cases apply only to sentencing schemes that require life without parole, while Virginia’s law provided for judicial discretion. Take a look at the briefs in this case and be prepared for a large and emotional crowd.

April cases – final arguments of the year

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

Monday, April 15

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

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

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

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

Monday, April 22

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

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

Tuesday, April 23

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

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

But in March it added another question:

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

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

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

 

Oct 29 – Nov 7

Some important cases in the next block of arguments, including arbitration, death penalty, and class action settlements.

Monday, October 29

The court takes on arbitration agreements in both cases this morning.  Pre-dispute arbitration agreements are contracts in which the parties agree that any dispute they may have (usually involving a specific subject matter, like an employment or business relationship) will go to arbitration rather than be resolved in court.  Courts are therefore obligated to reject any lawsuit that should instead be arbitrated (by granting a “motion to compel arbitration”). The Federal Arbitration Act (FAA) requires all state courts to enforce these agreements — and in recent decades, the Supreme Court has steadily struck down various legal doctrines that state courts had been trying to deploy to limit arbitration agreements.

One unresolved issue is who decides whether the parties have signed a contract to arbitrate disputes of this kind.  If the agreement is to arbitrate disputes “arising out of the employment relationship,” is that just about wages and benefits or does it include a fall in the workplace parking lot, or a fight at an after-work happy hour?  Typically, if someone files a lawsuit then it is the judge’s job to determine if there’s an agreement that covers that suit.  But parties also can agree to let the arbitrator decide “questions of arbitrability.”  If there is such a clause, then arguably every lawsuit must first be reviewed by an arbitrator, who will decide whether the court can have that case or if the dispute falls within the scope of the arbitration agreement.

In this morning’s first case, Henry Schein Inc. v. Archer & White Sales Inc., there is (at least arguably) an agreement that the arbitrator will decide questions of arbitrability. But the arbitration agreement also clearly states that it does not cover “actions seeking injunctive relief.”  One company filed suit, the other moved to compel arbitration (including of the question whether the arbitration agreement covers this dispute), and the court ruled that it wasn’t going to send the question to an arbitrator because the lawsuit sought injunctive relief, so the suggestion that the agreement covered this type of lawsuit was “wholly groundless.”  This is a doctrine other courts have relied upon, but it’s not clear it’s allowed under the FAA, which strongly favors arbitration.  So the Court has accepted cert. on “Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

In the second case, Lamps Plus Inc. v. Varela, there’s agreement that the dispute goes to arbitration, but the disagreement is over whether the party can bring a class action claim to arbitration.   (It’s also an interesting factual context:  the employer fell for a phishing scam and revealed personal information about employees.)  The arbitration agreement used common “boilerplate” language that did not specify class actions as either permitted or prohibited, so the court followed a typical “rule of construction” that ambiguities are resolved against the party that drafted the agreement, which in this case meant that class actions were allowed. Again, given the FAA’s pro-arbitration stance, the issue is whether state court doctrines can impose on the arbitration process in this way.

Tuesday, October 30

An interesting tax case (!) involves rights under the Yakama Treaty of 1855.  Washington State taxes fuel that enters the state, and Cougar Den is a fuel wholesaler that brings fuel into Washington by truck.  But Cougar Den is owned by the Yakama Indian Nation, and the Treaty gives them the right to “travel upon all public highways.”  On that basis, the company refused to pay a $3.6 million tax bill.  The closeness of the legal question is illustrated by the conflicting rulings in this case:  at the first hearing, an Administrative Law Judge sided with the tribe; the Director of the tax office reversed that ruling and sided with the state; a state trial level court reversed the Director and ruled for the tribe; and then the State Supreme Court reversed the lower court order and ruled for the state. An interesting and thorough discussion of each side’s arguments are available here; also see the case page for Washington State Department of Licensing v. Cougar Den Inc. to review more of the briefs in this case.

The second case is a technical issue of appellate criminal procedure.  One basis for an appeal is “ineffective assistance of counsel,” but the defendant must show “prejudice” — not only that the lawyer did something wrong, but that the lawyer’s error made a difference in the outcome.  Some types of errors get a “presumption of prejudice.”  One such type of error is failing to file an appeal (for whatever other basis).  But in Garza v. Idaho, the lawyer didn’t file an appeal (even though the client asked him to) because the defendant had previously signed a plea agreement that waived his right to appeal.  The Court will (hopefully) resolve a Circuit split over whether the presumption of prejudice applies where the defendant had waived appellate rights. It may seem like an obscure technical issue, but issues like the validity of the waiver could be raised more easily if the presumption of prejudice applies.

Wednesday, October 31

Frank v. Gaos is a fascinating case, with unusual alliances, challenging cy pres awards in class action settlements.  Lawsuits against Google for disclosing search histories to third parties without consent ultimately settled for $8.3 million, most of which would be paid to several nonprofits according to a “cy pres award.”  This is a method (short for the French “cy près comme possible,” or “as near as possible,” and pronounced by most US lawyers like sigh-prey) that can be employed when it is impossible or impractical to distribute funds (or other property) to individuals who were wronged.  In this case, the parties agreed that it would be impractical to determine what share would be appropriate to apportion to each Google user who had varying levels of personal information disclosed, so the funds went to organizations involved in internet privacy.  The lead objector is from the Competitive Enterprise Institute, but those complaints are supported by groups ideologically aligned with them as well as by the Electronic Privacy Information Center and others from elsewhere on the political spectrum.  For a view on the other side, see the brief from Public Citizen and a group of law professors.  The Court has accepted cert. on “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.'”

The second case today, Jam v. International Finance Corp., is not one I would recommend to the casual observer, but stay for it if you are interested and can read up on it in advance.  “Whether the International Organizations Immunities Act—which affords international organizations the ‘same immunity’ from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11.”

Monday, November 5

(Both cases today will be hard to follow for a casual observer.  Sturgeon v. Frost involves NPS authority over private and native land holdings in Alaska.  Virginia Uranium, Inc. v. Warren is a pre-emption issue regarding state regulations that impact nuclear material.)

Tuesday, November 6

A significant case involving the death penalty is up first today. This is the second of two major capital punishment cases this term (the first, Madison v. Alabama, was argued Oct 2 and noted in my prior post).  See the interesting and detailed discussion of both from The Atlantic.  Bucklew v. Precythe does not challenge the sentence or even lethal injection as a general matter, but argues that this individual has a specific medical condition that will cause him to experience unusually intense pain from the cocktail.  The legal issues are:

(1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

(The second case today again is not one I’d widely recommend.  BNSF Railway Company v. Loos involves the Railroad Retirement Tax Act.)

(Wednesday, November 7, also involves two cases that I would not recommend.  Culbertson v. Berryhill involves an unusual Social Security taxation issue.  Republic of Sudan v. Harrison is about how you serve process on a foreign state.)

 

October 2018 term opening (& more)

First Monday brings environmental law and age discrimination cases, with other cases this month involving sex offender registration, execution of people with mental disabilities, arbitration agreements, detention of noncitizens, and liability for Navy sailors’ exposure to asbestos.

I also want to highlight a few cases that will be heard sometime this term but have not yet been set for argument.  I’ll have posts on each in the weeks before the argument.

  • Gamble v. United States asks “Whether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”  This is the doctrine that allows the federal government to charge someone even if they have been tried (and even if acquitted) for the same conduct in a state trial (assuming the same conduct is illegal under both federal and state law).  This could have extremely far-reaching implications.
  • Timbs v. Indiana: “Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.”  So odd that this has not been resolved by now!
  • Nieves v. Bartlett: “Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.”  Ie, do you have a case if you did something illegal but it’s clear that the real reason the police arrested you was because they didn’t like the content of your speech?

And outside the Supreme Court (for now!), the climate change lawsuit brought by young people against the EPA has survived the initial efforts to dismiss the case and is worth watching.

Now, on to the first two weeks of the term:

Monday, October 1

The first case, Weyerhaeuser v. US Fish & Wildlife Service, involves the Endangered Species Act and deference to administrative agency interpretations.  US Fish and Wildlife designated land owned by Weyerhaeuser as critical habitat for the dusky gopher frog.  The frog has not actually been on that land for decades, but the land could be made suitable for them, and FWS interpreted the ESA as allowing such land to be considered critical habitat, even if not currently habitable.  In siding against Weyerhaeuser, the Fifth Circuit held that the agency’s interpretation was entitled to deference.  That’s an important concept in administrative law and likely will be a focus of the argument, so it’s worth reading the Circuit Opinion as well as this general overview.

Next is Mount Lemmon Fire District v. Guido, interpreting the Age Discrimination in Employment Act. ADEA defines covered employers to mean “a person engaged in an industry affecting commerce who has twenty or more employees . . . .  The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U.S.C. § 630(b).  The 9th Circuit read the two sentences as separate, so even small political entities (like the fire district here) are covered.  Other Circuits have held the opposite, and the Court has accepted cert. to resolve the “circuit split.” It should be an interesting argument; before attending, take a look at an amicus brief from the employee side and another from the government’s side.

Tuesday, October 2

Two criminal law cases today.  The first, Gundy v. United States, involves the Sexual Offender Registration and Notification Act and the nondelegation doctrine.  Nondelegation holds that Congress may not grant too much lawmaking authority to the Executive branch.  Congress routinely grants administrative agencies and officers considerable powers to make regulations, but it must at least spell out an “intelligible principle” that the Executive must follow (and that courts can require them to follow) in carrying out that discretion.  The nondelegation doctrine struggles to allow for the complex administrative state we have without completely abandoning the system of checks and balances.  In this case, SORNA authorizes the Attorney General to decide the circumstances under which the law would have retroactive effect.  Take a look at the amicus brief from a group of legal scholars.

Next up is a death penalty case, in the context of a mental disability that leaves the prisoner with no memory of committing the offense. See the interesting discussion from the American Psychological Association.  The official legal question presented in Madison v. Alabama is:

Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Wednesday, October 3

The first case today, Knick v. Township of Scott, Pennsylvania, is not one that I would generally recommend for a casual observer.  It involves the takings clause, which always gets some interest, but this particular case has some procedural complications and is only addressing the “exhaustion of remedies” issue.  But if you’re interested in it, or going for the second case, then read up on it here.

Arbitration agreements have become increasingly common, and in the past several years the Supreme Court has been holding that the Federal Arbitration Act (FAA) preempts a wide array of state law doctrines that had limited their enforceability. Generally, if someone files a lawsuit but there’s a valid arbitration agreement, then the FAA requires the court to dismiss the case and send the dispute to arbitration.  Today the Court takes on “arbitrability” — who decides if there is a valid arbitration agreement?  Some arbitration agreements require that an arbitrator decide all questions, including whether the arbitration agreement covers the particular dispute.  New Prime Inc. v. Oliveira involves transportation workers, and the FAA specifically exempts transportation workers, so the lower courts held that they did not need to consider those recent FAA preemption cases.  But the Court has granted cert. on:

(1) Whether a dispute over applicability of the Federal Arbitration Act’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause; and (2) whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

This one will be heavily watched by business and consumer and employee advocates. Take a look at the Public Citizen overview and its amicus brief.  Also note that the Court has accepted cert. in two other arbitration cases this term:  Lamps Plus and Henry Schein will be argued Oct 29; more on them to come in a later post.

[the Court does not hear arguments on Columbus Day]

Tuesday, October 9

All three cases today involve statutory interpretation of terms in the Armed Career Criminal Act.  Stokeling v. United States will be argued first and separately, and involves the requirement of enhanced penalties for people with prior “violence felonies.”  Stokeling argues that his prior robbery conviction did not involve a use of force sufficient to constitute violence, but precedent has required a “categorical approach” to deciding if the prior conviction was for a crime that is a violent felony.  US v. Sims and US v. Stitt are consolidated for one hour total and both involve the same question: “Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act.”

Wednesday, October 10

Nielsen v. Preap is about detention of noncitizens who have been convicted of a crime. Ballotpedia offers a useful summary; follow the link for more and key documents:

Under the mandatory detention provision of the Immigration and Naturalization Act, the government is required to detain noncitizen U.S. residents who were convicted of certain crimes “when…released” from criminal custody. The government had relied on this provision to begin detaining lawful permanent residents years after their release from criminal custody. Three filed suit, alleging that because they were not detained immediately when they were released from criminal custody, the government could not rely on the mandatory detention provision to hold them without bond. The Ninth Circuit agreed, ruling that the mandatory detention provision only applies to noncitizens who are detained by immigration authorities promptly following their release from criminal custody.

The second case today, Air and Liquid Systems Corp. v. Devries, raises some technical jurisdictional and common law issues, but comes in the context of wrongful death claims by widows of Navy sailors who died from cancer after exposure to asbestos in the course of their service.  They brought suit against the manufacturers of products that contained asbestos.  There has been a lot of asbestos litigation over the years, resulting in development of various liability doctrines. But because of the context, the Court has accepted cert. on something new: “Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.”