October 2022 Term

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

Also as of this post, there has been no indication of any change in public access to arguments. I am hoping for a return to access to the courtroom for members of the public so we can watch the justices and arguing counsel, but I also hope the online audio will continue regardless. See my page on how to access arguments online.

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

First Monday, October 3

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

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

Tuesday, October 4

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

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

Wednesday, October 5

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

Monday, October 10

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

Tuesday, October 11

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

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

Wednesday, October 12

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

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

Feb 22 – March 3 Cases

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

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

Tuesday, February 23

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

Wednesday, February 24

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

Monday, March 1

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

Tuesday, March 2 — Voting Rights Act

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

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

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

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

Wednesday, March 3

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

April cases — last of 17-18 term

April 25 is the last day of oral argument this term — when they will take up the “Muslim travel ban” (after sentencing guidelines and Congressional redistricting cases earlier in the week).  After that, the Court will sit each Monday until the end of June in order to announce its decisions in cases argued this term, then will go on summer recess until First Monday in October.

Monday, April 23

The morning cases are rather technical and not recommended for the casual observer, but there is an unusual afternoon argument today that may be of interest.  Chavez-Meza v. United States involves the ongoing confusion regarding sentencing guidelines. This time, the issue is how thoroughly the judge must explain a sentencing reduction on the record.  Scotusblog has a useful preview.

Afternoon arguments are rare and it’s hard to predict how difficult it will be to get in.  Arguments begin at 1:00; morning arguments are 10:00-noon, then there’s a lunch break during which the courtroom is cleared.  Often, it’s been enough to get in line by 11:00.

Tuesday, April 24

Redistricting is before the Court yet again this morning — the third time this term alone. Abbott v. Perez involves protracted litigation over claims that Texas violated the Voting Rights Act when it redrew Congressional districts in 2011. The history of the various lawsuits and interim rulings is critical to understanding this case and being able to follow the arguments, so review the overview from Brennan Center and follow at least some of those links for key documents in the case (the links near the bottom, and particularly the NAACP LDEF amicus brief, will be especially helpful).

The case has been scheduled for 70 minutes, which is slightly more time than usual.  There will be 4 arguing counsel (2 on each side) and 35 minutes total for each side.

The second case today,  Animal Science Products v. Hebei Welcome Pharmaceutical Co., is an antitrust case that raises the question of to what extent US courts should defer to foreign courts’ interpretations of foreign law. See the overview here.

Wednesday, April 25 — the “Muslim Travel Ban”

The Court’s last scheduled argument of the term is Trump v. Hawaii — perhaps the most politicized case in years, as well as one that raises some interesting unanswered academic legal questions.  Obviously, a great deal has been said and written about this case, but below I suggest some specific reading that should help you to follow the legal arguments before the Court.

A general overview will obviously help, but I also suggest some more reading on each of the official “questions presented,” as specified in the grant of cert.:

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;
[This involves the “political question” or “plenary-power” doctrine and the question of whether certain matters are entrusted by the Constitution to the executive branch alone.  See the argument here.]

(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;
[This question is essentially one of administrative law and statutory interpretation.  The decision below will give a good sense of the argument that the president lacked that authority.]

(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad;
[This is a difficult and unresolved legal question — just what is the scope of authority of a district court, for a single region and with specific plaintiffs before it, when the issue in the case is one of national policy with unspecified individuals who may be subject to it?  See the discussion here.]

(4) whether the proclamation violates the establishment clause of the Constitution.
[Here, the Court will take up the argument that the order reflects unconstitutional discrimination on the basis of religion. See this amicus brief from a collection of civil rights organizations arguing that the order should be seen as an act of religious discrimination.]

There are also an extraordinary number of amicus briefs filed in this case, and you may wish to see if any are from organizations you would like to hear from.

Expect the arguments to run long.  So far, the Court has not ordered additional time (although it denied the Becket Fund for Religious Liberty’s request to participate in oral arguments), but it is the only case on the docket today.

People will begin lining up to see the arguments very early, and I wouldn’t be surprised if  no one gets in from the public line who wasn’t in line (or paying a line-stander) for at least 24 hours.  Even if that’s not possible for you, there will be much to see and do on the sidewalk in front of the Court — multiple and competing demonstrations before and during arguments, followed by press conferences as soon as the arguing lawyers leave the building.

December 5 – Voting Rights Act

The Supreme Court and state legislators have been struggling with voting districts as they relate one-person-one-vote principles and racial discrimination in multiple cases over the past several years, and the issues arise again in the two cases scheduled for Monday, December 5.

Amy Howe has an excellent article on Scotusblog that provides a full description of the context and these cases.  Briefly, Bethune-Hill v. Virginia State Board of Elections challenges twelve “majority-minority” districts in Virginia, with one side arguing that African Americans were packed into these districts in order to dilute their voting power in other districts and the other side claiming that the case was filed in order to require re-drawing of the maps after Democrats won the governorship.  The second case, McCrory v. Harris, is a challenge to North Carolina’s infamous NC-1 and NC-12 districts, which look like this:

congressmap01

(via http://www.newsobserver.com/news/politics-government/state-politics/article58756583.html)