Tag Archives: Supreme Court

Feb 22 – March 3 Cases

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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.”

Nov 30 & December cases

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The Court returns after Thanksgiving week with a number of major cases, some of which are getting a great deal of attention and others are deserving of more attention. [This blog took a brief hiatus for the early November cases, for personal reasons and because the ACA and other cases were getting plenty of coverage. But I’m back now.]

Monday, November 30 – Trump v. NY

Trump v. New York is partially about the census but most importantly about representation in the House of Representatives. Scotusblog pithily sets the context:

Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.

Amy Howe, Court fast-tracks census appeal, SCOTUSblog (Oct. 16, 2020, 7:13 PM), https://www.scotusblog.com/2020/10/court-fast-tracks-census-appeal/

In 2016, the Court considered a related but distinct issue in a case brought by voters who wanted to require their state to draw voting districts such that each would include a roughly equal number of eligible voters (rather than roughly equal total population). The Court rejected that claim in Evenwel v. Abbott, but held only that basing districts on total population was a permissible system that did not violate the principle of one person, one vote. The Court did not consider whether a state had to choose such a system (“we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population”).

Beyond the issues in Evenwel, this case raises additional important issues regarding the role of the federal government and the census specifically. I recommend perusing at least a few amici briefs in addition to the Scotusblog overview linked above. The briefs collected here notably include NAACP LDEF, Former Directors of the US Census Bureau, and Common Cause.

The second case today involves the Computer Fraud and Abuse Act — a broad law that makes for strange ideological alignments and opposition. In Van Buren v. United States, a police officer is accused of taking money in order to look up license plate information on a system he had legal access to for work purposes. The Electronic Privacy Information Center supports the prosecution, while Electronic Frontier Foundation opposes this reading of the statute.

Tuesday, December 1

First up is an argument that should be getting more public attention:

Nestlé USA and Cargill are alleged to have contributed to a system of child slavery and forced labor in the Ivory Coast for decades. Plaintiffs are six people who were trafficked from Mali and formerly enslaved as children on cocoa plantations in the Ivory Coast as part of this system.

https://ccrjustice.org/home/what-we-do/our-cases/doe-et-al-v-nestl-usa-inccargill-inc-amicus

The case is brought under the Alien Tort Claims Act — a law passed by the first Congress, creating a right for non-citizens to sue for violations of international law that occurred abroad. There has been much controversy in recent decades over the intent and scope of the law. Arguments based in the history of the law run the gamut from a claim that this was really about piracy on the high seas and nothing more, to claims that this was a desire to make the US a place where victims of human rights abuse could come for refuge and to seek justice, to something of a mid-point that we at least did not want the US to be a place where bad international actors could have refuge from accountability. Some human rights advocates have used the ATCA, but the Court has been severely limiting its scope over the past several years. Take a look at this interesting amicus brief by professors of legal history, and at this one by smaller cocoa producers (“Amici are at a competitive disadvantage to companies that source cocoa produced with forced and trafficked child labor”).

The two cases, Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, are consolidated for one hour of argument.

[The second case today, CIC Services LLC v. IRS, involves the Anti-Injunction Act and challenges to tax regulations, and is not one I would recommend for the casual observer.]

Wednesday, December 2

The first argument today is a major case involving House committee access to grand jury materials from the Mueller investigation: Dept. of Justice v. House Committee on the Judiciary. I needn’t say more here; see the Scotusblog overview (or probably a huge amount of news coverage to come closer to the arguments).

The second argument today will likely be overshadowed but is an important and interesting criminal law case. It was only in 2020 that the Court held that criminal convictions require a unanimous verdict. Ramos v. Louisiana. In today’s case, Edwards v. Vannoy, the Court will decided whether that decision “applies retroactively to cases on federal collateral review.”

Monday, December 7

On this anniversary of Pearl Harbor Day, the Court will hear two cases involving property taken during World War II. The legal issues in both cases involve whether the Foreign Sovereign Immunities Act bars lawsuits against Hungary and Germany under these circumstances. The factual contexts in the two cases are summarized by Oyez:

Republic of Hungary v. Simon

Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law.

https://www.oyez.org/cases/2020/18-1447

The Court has accepted cert. on “Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.”

Republic of Germany v. Phillip

In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then.

In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection.

https://www.oyez.org/cases/2020/19-351

For this case, the Court has accepted cert. on:

(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.

Both cases have been consolidated for a total of 90 minutes of oral argument.

Tuesday, December 8

The first case today, Facebook v. Duguid, involves whether Facebook violated federal law by sending automated text messages. Facebook users can enter a cell phone number to be alerted of authorized access attempts. Duguid never signed up for Facebook but started receiving such text messages and could not make them stop. He sued under the 1991 Telephone Consumer Protection Act (TCPA), which prohibits using an autodialer (or automatic telephone dialing system (ATDS)).

TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The case today is essentially a grammatical issue — whether it’s a fair reading to define an autodialer as something that can “store . . . numbers to be called” or only one that can “store . . . numbers to be called, using a random or sequential number generator.” The 9th Circuit held that Facebook’s automated system fit that definition. On the contrary, “Facebook asserts that a system lacking the capacity to randomly or sequentially generate numbers cannot be an ATDS, even if it can store and automatically dial them.” See this useful overview of the legal and commercial issues.

Next up is arbitration agreements — a subject of many Supreme Court decisions in recent years, including in earlier stages of this same dispute, Henry Schein, Inc. v. Archer and White Sales, Inc. In general, the Supreme Court has been interpreting the Federal Arbitration Act to require courts to send many disputes to arbitration if the parties had agreed to arbitrate such disputes. But an open question is who decides if the parties have agreed to arbitration, especially if the contract contains a provision that otherwise appears to grant the arbitrator authority to interpret the meaning of the contract. This dispute in particular involves agreements that incorporate the rules of the American Arbitration Association, which some courts have held is sufficient to constitute agreement to have the arbitrator decide “questions of arbitrability,” but which the Fifth Circuit held was not controlling in this case. This is an important case because of the sheer number of contracts (including online terms of service for which people reflexively hit “agree”) that include arbitration clauses, but the arguments may be a little difficult to follow. The amicus brief by a group of arbitrators and arbitration scholars may help.

Wednesday, December 9

The last set of December cases involves the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis. The legal issues start with the structure: a single agency head who could be removed by the President “for cause,” raising separation of powers issues. Then there is the question of severability; can other agency powers survive if the appointment provisions are unconstitutional? And then there are various factual details surrounding exactly what the FHFA did and how it impacted the Fannie Mae shareholders. (And don’t get excited about all the mention of the “Third Amendment” — it’s not about quartering soldiers, but renegotiated terms between FHFA and Treasury!) In short, an important set of cases but it could be difficult to follow. Oyez has a useful start, then see the Fifth Cir. opinion.

October 2020 arguments

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The Supreme Court term traditionally begins on the “First Monday” of October, and the Court has announced (earlier than usual) a full schedule for that month. (“Full schedule” means Monday through Wednesday for two weeks out of the month.) Exactly what that will look like, of course, is still unknown.  The Court held unprecedented telephone arguments last May, but the virus will decide if we can return to in-person arguments and the Court will decide what adjustments to make if not.

I will make a post about how to watch or listen when we know how the arguments will be conducted.  Meanwhile, some highlights of cases below, including a First Amendment case involving political affiliations of judges, a RFRA challenge to the no-fly list, intellectual property, rape under the UCMJ, and other issues.  Each of these cases had been scheduled for argument last year but were held over when arguments were canceled due to the pandemic.

First Monday, October 5

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

The second argument today, in Texas v. New Mexico, involves a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.”  This will be hard to follow and not have much public interest.  However, it does have the allure of being the extremely rare case that begins in the Supreme Court under its original jurisdiction — and this case has been on the Court’s docket, with various disputes, since 1960.  If that’s enough to grab your attention, take a look at this article to get a sense of the current issues and then peruse the extensive docket just to see how actively this dispute has been litigated over the years.

Tuesday, October 6

The first case today is not one I would recommend for a casual observer.  Although the context is important (pharmaceutical drug reimbursement rates), the Court will consider quite technical issues of federal preemption under the Employee Retirement Income Security Act (ERISA). Rutledge v. Pharmaceutical Care Management Association.

The second case, however, is a politically important and legally interesting case:  a challenge to the “no fly list” brought in part under the Religious Freedom Restoration Act. Tanzin v. Tanvir. RFRA has been embraced by conservative advocates and jurists in “culture wars” contexts, so its invocation by Muslims in a national security context should, at the very least, make for interesting arguments. Oyez offers a useful overview:

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

Wednesday, October 7

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

Next up is a pair of cases, Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court, that involve technical civil procedure issues but are extremely important for product liability litigation.  When people allege they were harmed by products that are marketed and sold nationwide, plaintiffs’ lawyers have to decide where to file the lawsuit, and where a violation occurred is not always the jurisdiction with courts that are most friendly to such plaintiffs.  Last year, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of San Francisco County put severe limits on “forum shopping” by clarifying the standards of “personal jurisdiction” (the requirement that there be significant connection between the defendant and the jurisdiction of the court where the lawsuit is filed), but some courts have continued to find personal jurisdiction in product liability cases even where the alleged injuries or misconduct did not occur in that state. There’s a useful overview of the legal issues here.

[The Court observes Columbus Day on Monday, October 12]

Tuesday, October 13

First up is argument in two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice.  There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.

The second case today is not one I would recommend to the casual observer.  Chicago v. Fulton involves a technical bankruptcy issue.

Wednesday, October 14

Torres v. Madrid, addresses an important and unresolved legal issue related to what constitutes a seizure under the Fourth Amendment.  It is unresolved in that lower courts have come to different conclusions where an officer used force to detain a suspect but was unsuccessful; this is known as a “circuit split” and is one thing that makes it very likely the Court will agree to hear a case.  The official “question presented” makes this clear:  “Whether an unsuccessful attempt to detain a suspect by use of physical force is a ‘seizure’ within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a ‘seizure,’ as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.

The last October argument is in Pereida v. Barr, an immigration law case.  Federal immigration law permits non-citizens to challenge their deportation on certain bases, but not if the individual has been convicted of a “crime involving moral turpitude” (CIMT) under state or federal law.  But state statutes are often complex and plea agreements are not always clear, so it is not always obvious whether a CIMT is involved.  In this case, Pereida was charged with attempting to use a false Social Security Number and pled no-contest to violating a statute, some but not all subsections of which could be read to constitute a CIMT. The issue is “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.

About that one Gorsuch opinion….

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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

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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

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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 Act, Tanzin 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

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[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

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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

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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

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“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.