Apologies for the brief hiatus on this blog, as other obligations prevented me from making posts for the November and December arguments. But we are back in January with arguments concerning oil company operations off the Louisiana coast, trans student-athletes, state sovereign immunity, concealed weapons on private property, and the independence of the Fed.

Monday, January 12

The first case of the calendar year is a rather technical issue of civil procedure, but in an interesting context. Chevron USA Inc. v. Plaquemines Parish involves lawsuits against oil companies filed by coastal municipalities in Louisiana (“parishes” in that state), which were filed in state court and which the oil company defendants seek to remove to federal court. The companies rely on the “federal officer” removal statute, 28 U.S.C. § 1442(a)(1), arguing that the cases relate back to activities undertaken during World War II when they and predecessor entities had contracts with the federal government. The federal district court and the Fifth Circuit have consistently rejected their efforts to remove the cases, remanding them back to state court after determining that there was not a sufficient nexus between the companies’ challenged activities and federal direction. The Court has accepted cert. to decide the standard for determining whether a private party can invoke the federal officer removal statute.

This case hasn’t received a lot of attention. I would suggest the Fifth Circuit decision and the Environmental Defense Fund’s brief. There’s also an interesting amicus brief from a retired General, siding with Louisiana.

This is the only case scheduled for argument today.

Tuesday, January 13 — trans student athletes

Today will focus on constitutional and statutory challenges to laws banning transgender women and girls from participation on women and girls’ sports teams. There are two cases, not consolidated for oral arguments, so expect the day to run very long. These are among the most high-profile cases of the term, so I’ll note just a few details to keep in mind.

The day begins with Little v. Hecox and an official “question presented” that focuses on the constitution: “whether laws that seek to protect women’s and girls’ sports by limiting participation to women and girls based on sex violate the equal protection clause of the 14th Amendment.” Hecox was a trans athlete barred from participating on the track and cross-country teams at Boise State University by the Idaho law that requires public school teams (elementary through university) to be “expressly designated . . . based on biological sex” and further specifies that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” Idaho Code § 33-6203.

She won a preliminary injunction that allowed her to participate in the women’s teams notwithstanding the Idaho law, but she faced a variety of personal challenges (including sometimes not making the teams after tryouts, a death in her family, and public pressure). Recently, she advised the Court that she had “decided to permanently withdraw and refrain from playing any women’s sports at BSU or in Idaho covered by H.B. 500” and therefore asked that the case be dismissed as moot. But the Court deferred any decision on mootness until after oral argument.

The other case today, West Virginia v. B.P.J., focuses on Title IX (prohibiting “sex” discrimination in schools that receive federal funds) as well as the constitutional issue, with two official questions presented: “(1) Whether Title IX of the Education Amendments of 1972 prevents a state from consistently designating girls’ and boys’ sports teams based on biological sex determined at birth; and (2) whether the equal protection clause of the 14th Amendment prevents a state from offering separate boys’ and girls’ sports teams based on biological sex determined at birth.” The West Virginia law similarly applies to public schools of all levels and requires that “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport,” defining “male” as “an individual whose biological sex determined at birth is male.” W. Va. Code § 18-2-25d.

This law was challenged by parents of a middle school student, described by the 4th Circuit as “a 13-year-old transgender girl who takes puberty blocking medication and has publicly identified as a girl since the third grade” who sought to “participat[e] in her school’s cross country and track teams.” B.P.J.’s health status received considerable attention in the 4th Circuit’s opinion that prohibited barring her from the teams, in part because “medication prevented B.P.J. from progressing through the Tanner 2 stage, and as a result, B.P.J. has never experienced elevated levels of circulating testosterone. In addition, B.P.J. is receiving gender affirming hormone therapy, which, based on her expert testimony, will cause her to experience physical changes to her bones, muscles, and fat distribution that are typically experienced by cisgender girls.”

The cases and these issues more broadly have received an extraordinary level of attention, so I won’t belabor it further here. There are more than a hundred amici briefs — from political interests groups and elected officials, athletes and parents on either side, medical professionals, historians, and others. I recommend selecting two or three (collected here for West Virginia and Little) from groups that interest you, ideally from opposing sides (they’re usefully color-coded by side on those links!) to round out your understanding of the issues.

Wednesday, January 14

The only case being argued today concerns state sovereign immunity when sued in the courts of another state, and specifically, whether New Jersey Transit is an arm of the state entitled to sovereignty immunity in a case where it was sued in Pennsylvania state court when one of its vehicles injured a woman in Philadelphia. This version of the doctrine of sovereign immunity has been a bit in flux, most recently upended in 2019 and with still-open questions concerning just what entities count as arms of the state. The case hasn’t received much attention but should be an interesting argument. See the Public Citizen amicus brief for a readable run-down of the issues (and arguing that “State sovereign immunity provides sweeping protection, but only to the states themselves.”).

The Court is closed on Monday the 19th in observance of Dr. King Day.

Tuesday, January 20

The first argument, Wolford v. Lopez, is the big draw for the day, a Second Amendment challenge to Hawaii’s law prohibiting concealed carry of weapons on private property without the property owner’s express permission. Duke Law has a very useful explanation of the legal issues and how states have been using (and expanding) “sensitive place” laws after Bruen. It will be an interesting tension between Second Amendment and property owners’ rights.

Today’s second case is an ERISA issue (Employee Retirement Income Security Act), a notoriously complex area of law and this specific question presented – “Whether 29 U.S.C. § 1391’s instruction to compute withdrawal liability ‘as of the end of the plan year’ requires the plan to base the computation on the actuarial assumptions most recently adopted before the end of the year, or allows the plan to use different actuarial assumptions that were adopted after, but based on information available as of, the end of the year” – does not inspire me to alter my usual suggestion that such cases are not for the casual observer!

Wednesday, January 21 — Fed Governors

The January block concludes with another high-profile case, Trump v. Cook, concerning Trump’s attempt to removed a member of the Board of Governors of the Federal Reserve. This is part of the saga over the independence of independent agencies. By statute, members of the Fed serve 14-year terms and can only be removed “for cause.” 12 U.S.C. § 242. There are a number of cases questioning whether the constitution permits Congress to so constrain the President’s authority over executive branch officers (including under the “unitary executive theory”) but this case does not actually involve that question (although it likely will come up during arguments) as Trump asserted that he had cause. However, “the government does not dispute that it failed to provide Cook even minimal process—that is, notice of the allegation against her and a meaningful opportunity to respond—before she was purportedly removed,” as a concurring opinion in the DC Circuit noted when it upheld an injunction blocking her removal.

Really important, but note that the case itself is procedurally complex, involves difficult legal issues, and is wrapped up in other developing issues around presidential authority and the role of administrative agencies. So see this useful overview from Amy Howe as well as the prior two links to be able to follow the arguments.