November 2021 – Prof. Zachary Wolfe, Esq.

All attention is on Wednesday, December 1, for Mississippi’s 15-week abortion ban. But this next block of arguments includes important Civil Rights Act and other issues as well, including a major religion clauses case the following Wednesday.

• Arguments start quite promptly at 10:00 and the easiest way to listen is to go to https://www.supremecourt.gov and click the “live audio” icon. I’ve noticed that if you try to launch the audio early, you’ll get an error right about 9:59; just refresh the page then. See this page for non-live options.

Monday, Nov 29

This is a technical issue involving calculations of medicare payments for hospitals with a large number of low-income patients. It won’t be easy to follow, so if interested, see Cornell Law’s thorough write-up here.

Tuesday, Nov 30

Title VI of the Civil Rights Act provides for damages in cases of unlawful discrimination by an entity that receives federal funds, and various other laws that prohibit discrimination incorporate that “remedies provision.” There is an open question about whether victims of discrimination can sue for emotional distress (or only other forms of damages) under that law. So the question presented today in Cummings v. Premier Rehab Keller, P.L.L.C.: “Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.”

The second case today, American Hospital Association v. Becerra, is a big one for people who care about judicial deference to administrative agencies — “1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data; and (2) whether petitioners’ suit challenging HHS’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12).” If that’s you, then see this overview.

Wednesday, Dec 1 — abortion

This is the most high-profile case in this block of arguments — Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s ban on abortions after 15 weeks. There’s been so much attention to this case that there’s no sense in me trying to add anything, but I recommend reviewing the SCOTUSBlog overview before arguments. It’s the only case today, and scheduled for 70 minutes (but I’d expect well over 90).

Monday, Dec 6

Two technical issues today, not recommended for the casual observer. Hughes v. Northwestern University is an ERISA issue. Patel v. Garland involves federal court jurisdiction.

Tuesday, Dec 7

Just one case today, US v. Taylor, involving the federal law covering “interference with commerce by threats or violence.” “Whether 18 U.S.C. § 924(c)(3)(A)’s definition of ‘crime of violence’ excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).” There are extremely important issues of how to interpret criminal statutes, but it won’t be easy for a casual observer to follow. If interested in these issues, take some time with the NACDL amicus brief.

Wednesday, Dec 8

An extremely important religion clauses case today, in Carson v. Makin. Over half the school districts in Maine do not operate a high school but instead provide funding for students to attend either public or private schools outside the state, but only at “nonsectarian” schools. You may recall that last year, the Court held that states that choose to subsidize private education cannot exclude religious schools from receiving funding simply because they are religious institutions. In upholding Maine’s system, the First Circuit distinguished that ruling (Espinoza v. Montana Department of Revenue), finding that Maine’s restriction was use-based rather than identity-based: the Maine law “does not bar schools from receiving funding simply based on their religious identity — a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.” The question presented today is “Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or ‘sectarian,’ instruction.”

The final case in calendar year 2021 involves federal habeas appeals: Shinn v. Ramirez, “Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.”

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

Monday, Nov 8

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

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

Tuesday, Nov 9

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

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

Wednesday, Nov 10

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

Month: November 2021

Nov 29 – Dec 8