Arguments that had been scheduled for the last two weeks of the month are postponed. “The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.”
But the Court also offered us the best lines in any institution’s response to the virus: “The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
Month: March 2020
Week of March 23
[EDIT: The March arguments are postponed.]
The Supreme Court building “is closed to the public” but “will remain open for official business.” It’s not entirely clear what this means for oral arguments, and particularly for members of the public or members of the Supreme Court Bar who wish to observe the arguments. As of posting, there are no docket entries suggesting that next week’s cases will not be heard as scheduled.
Assuming arguments go forward — and regardless of whether or not you could attend — this may be a good time to learn about the availability of audio recordings and transcripts! From the Court’s website, you can get transcripts the same day as the arguments and the audio is released that Friday. In addition, on Oyez you can get transcript-synchronized audio (the transcript scrolls and highlights automatically as you listen). It’s a great service. Scroll to the bottom of the page to see the latest; go to the case page then click the link in the left column. I’m not sure how long they take, but seem to be fairly quick to produce this after the audio is released.
There are some important and interesting cases coming. I’ll note next week’s cases now, and add a new post for the week of March 30 when there’s more certainty about what’s happening in response to concerns about the pandemic.
Monday, March 23
Two consolidated cases (one hour total) are up first, and involve the statute of limitations for rape under the Uniform Code of Military Justice. There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.
Next up is an interesting trademark case, US Patent & Trademark Office v. Booking.com. You cannot trademark a generic term, but can you trademark [generic term].com? For a useful overview, see this “Brief amici curiae of Trademark Scholars in support of neither party.”
Tuesday, March 24
Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use. See the amicus brief from the Electronic Frontier Foundation.
An important “no fly list” case brought in part under the Religious Freedom Restoration Act, Tanzin v. Tanvir, is the second argument. Oyez offers a useful overview:
The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.
Wednesday, March 25
Two First Amendment cases today. First is Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’” The Brennan Center is heavily involved in such issues and has an amicus brief that should provide a good foundation.
Finally, United States Agency for International Development v. Alliance for Open Society International, Inc., involves First Amendment limits on conditions for federal funding. Congress originally provided funding for HIV intervention programs subject to two restrictions: (1) no funds “may be used to promote or advocate the legalization or practice of prostitution,” and (2) no funds may be used by an organization “that does not have a policy explicitly opposing prostitution.” In 2013, Alliance for Open Society won in an earlier Supreme Court case with the same name, which held that the second restriction “violates the First Amendment by compelling as a condition of federal funding the affirmation of a belief that by its nature cannot be confined within the scope of the Government program” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). The case today asks whether that principle protects only this US-based organization or extends “to legally distinct foreign entities operating overseas that are affiliated with” the organization.