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Published on Leave a comment on Late-February and Early-March 2026 Arguments

I'm posting this before the Court finishes the January block of arguments (previewed below) because the deadline to enter the lottery system for a chance to attend arguments in person is 4 weeks before the argument date. The cases concerning the takings clause, Second Amendment, and appeal waivers, in particular, should be excellent choices for anyone looking for this experience.

Monday, February 23

Two cases today concerning the Cuban Revolution and confiscated property and legal actions using the Cuban Liberty and Democratic Solidarity Act, often called Helms-Burton and also known as the LIBERTAD Act.

First up is Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., with legal issues focused on liability for use of confiscated property. In 1905, Havana Docks was granted an exclusive lease to possess and financially benefit from docks and terminal at the Port of Havana. Before the revolution, that lease was for a term of 99 years, to expire in 2004; shortly after the revolution, Cuba nationalized the docks. Helms-Burton creates a cause of action against anyone who “traffics” in “property which was confiscated by the Cuban Government on or after January 1, 1959.” 22 U.S.C. § 6082(a)(1)(A). So Havana Docks sued various cruise ship companies that had been using the docks and won in the US District Court. But the cruise companies were using the docks between 2016 and 2019, when Havana Docks's lease would have been expired in any event, so the 11th Circuit reversed, because the company's "limited property interest had expired . . . at the time of the alleged trafficking by the cruise lines." A dissenting opinion and Havana Docks emphasize that the property nevertheless "was confiscated," in the terms of the statute, when the lease had not yet expired, and they argue that the 11th Circuit narrows the ability to use the statute beyond what Congress intended.

The second case, Exxon Mobil Corp. v. Corporación Cimex, S.A., involves suit against a Cuban governmental entity and therefore asks if Helms-Burton creates another exception to foreign sovereign immunity, or if, as the DC Circuit held, the plaintiffs must identify a basis under the Foreign Sovereign Immunities Act.

Tuesday, February 24

The only argument today, Enbridge Energy, LP v. Nessel, is a civil procedure case and not one for the casual observer: Whether district courts have the authority to excuse the 30-day procedural time limit for removal in 28 U.S.C. § 1446(b)(1).

Wednesday, February 25

The Court returns to an issue that occasionally captures public interest: the takings clause and tax sales. Pung v. Isabella County is particularly compelling because there was a back-and-forth concerning whether this Michigan homeowner was exempt from a local schools tax and the county ultimately foreclosed over less than $2,500 in back taxes and retained the entire $76,000 sale amount. Before the trial court, Pung won a return of the difference between the owed taxes and the sale amount but lost on a claim that he should have been reimbursed for loss of true market value. There is thus also an 8th Amendment claim: that taking property far more valuable than the claimed debt, and selling it below market value at a state-controlled auction, constitutes an excessive fine.

The case surprisingly has not received much attention from the mainstream or legal press. The 6th Circuit opinion is a good starting point for the detailed facts and legal issues. The amici filings are also interesting and reveal unusual bedfellows, with Legal Services on the same side as Cato.

This is the only argument today and the Solicitor General has asked to participate, so expect arguments to run long. (When an arguing counsel's time expires, the Justices take turns in order of seniority to ask another round of questions, with no time limit. So of course it takes longer with three arguing counsel including the SG than if only the petitioner and respondent were being so questioned.)

Monday, March 2

Another Second Amendment case today, this time asking "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent." Duke Law has a useful explainer and summary of conflicting Circuit court opinions. There's also this intriguing suggestion that the wording of the statute could be read narrowly to convert it from a ban on possession by people of a certain status (as most have interpreted it) and instead read it to apply "only to people who are armed while intoxicated." In this case, United States v. Hemani, the indictment alleged only that he was a regular user of marijuana, promethazine, and cocaine; it did not allege he was on those substances while in possession. I also commend an amicus brief by Everytown for Gun Safety that relies on post-Reconstruction history.

Only one case today.

Tuesday, March 3

Hunter v. United States involves the enforceability of arguably unconstitutional sentences when the defendant has agreed to a plea deal that includes a general waiver of the right to appeal. Hunter pled guilty to wire fraud and the judge imposed, along with jail time, an obligation to take all prescribed mental heath medications. The written plea agreement contained a waiver of the right to appeal on any basis other than ineffective assistance of counsel. But as the medications condition was being discussed and objected to, the judge said "you have the right to appeal" and that his lawyer would continue representing him in such an appeal. The government did not object to that statement. Hunter later challenged that medication condition on due process grounds, but the 5th Circuit dismissed, finding no right to raise constitutional claims other than ineffective assistance notwithstanding the judge's statement. Notably, as the National Association of Criminal Defense Lawyers explain in their amicus brief, other courts of appeal have held that the ability to appeal certain core constitutional rights cannot be waived.

The Court has accepted cert. on "(1) Whether the only permissible exceptions to a general appeal waiver are for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum; and (2) whether an appeal waiver applies when the sentencing judge advises the defendant that he has a right to appeal and the government does not object."

Again, only one case today.

Wednesday, March 4

The final argument in this block of cases, Montgomery v. Caribe Transport II, LLC, is a rather technical federal preemption issue in a unique context: essentially, whether state laws that might impose liability on brokers who negligently hire drivers are enforceable or rather are preempted by federal law. (In the official question presented, "Whether a federal statute, 49 U.S.C. § 14501(c), preempts a state common-law claim against a broker for negligently selecting a motor carrier or driver.") Not one I would recommend for the casual observer, but the 7th Circuit opinion is fairly direct, and there is a quite readable brief from "preemption scholars."

Published on Leave a comment on January 2026 arguments

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.

Published on Leave a comment on October 2025 cases

The traditional "First Monday" opening of the regular October 2025 Term is October 6 this year, although the court has been particularly active on the "shadow docket" even during the summer recess. See below for tips about preparing for some of the major cases concerning the right to counsel for testifying defendants, a First Amendment challenge to "conversion therapy" bans, ex post facto laws, and two extremely high-profile cases on the final day of this first block of arguments: one on voting rights and another on warrantless searches.

I highly recommend attending in person if possible, which means trying for the online lottery of seats. See this page for information about that and other details, as well as links for information about other options if you can't go in person.

First Monday, October 6

The first case concerns a clash of principles regarding testimony and the right to counsel. In Villareal v. Texas, as this post more fully explains, the defendant in a murder case was in the middle of testifying when the court ordered an overnight break. The judge instructed him that “[n]ormally your lawyer couldn’t come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony,” and ordered the defense lawyer to “to use [their] best judgment in talking to the defendant because [they] … couldn’t confer with him while he was on the stand about his testimony.” Although all that is essentially true, but decades ago the Supreme Court held that defendants have the right to confer with counsel during overnight recesses:

  • The lawyer may need to obtain from his client information made relevant by the day's testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day's events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer's guidance.
    Geders v. US (1976)

Thirteen years later, the Court distinguished short recesses in the middle of a defendant's testimony, holding that the trial court could prohibit communications with counsel in those circumstances:

  •  It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. See Geders v. United States, 425 U.S. at 425 U. S. 88. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. But in a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice.
    Perry v. Leeke (1989)

In this case, the Texas Court of Criminal Appeals (the highest court in that state for criminal matters) tried to distinguish both in upholding the lower court's order:

  • This case provides a twist with the trial judge issuing a limited no-conferral order during an overnight recess. The order restricted Appellant’s ability to confer with counsel regarding his ongoing testimony, while allowing discussion on all other aspects of the criminal proceeding.

Most circuit courts of appeal and state high courts that have addressed the issue have held that the sorts of conferrals protected by the Court during overnight recesses are, as the Second Circuit put it, "inextricably intertwined with the ability to discuss his ongoing testimony" such that it is not constitutionally permissible to attempt to limit subject matters. U.S. v. Triumph Capital Group Inc. (2d Cir. 2007). But this case adds Texas to three other state high courts that hold otherwise. In addition to the summary and foundational cases above, an amicus brief from NACDL is always worth reading.

Today's second case, Berk v. Choy, is not one I would generally recommend to a casual observer. It arises in an interesting enough context: state laws that require medical malpractice lawsuits to be filed with an affidavit from an expert witness attesting to the "merits" of the allegations. But the Court will address only a technical civil procedure / federalism issue: when a case is filed in federal court based on its jurisdiction over cases involving citizens of different states, under 28 U.S.C. § 1332, does the federal court have to incorporate that affidavit requirement? If this interests you, this amici brief from civil procedure professors may be helpful.

Tuesday, October 7

Today starts with one of the more high-profile cases of the term: a First Amendment challenge to Colorado's ban on "conversion therapy" for minors (the horrific practice of attempting to change a child's sexual orientation or gender identity). Importantly, the law applies only to licensed mental health professionals (not religious counselors). This is essentially why the lower courts upheld the law as regulation of professional practices rather than speech, and rejected the practitioner's challenge. The Tenth Circuit noted that professionals' speech enjoys First Amendment protection as does any other speech, but noted that the Supreme Court case striking down California's law requiring "crisis pregnancy centers" to provide information concerning abortion specifically distinguished speech from practices. Chiles v. Salazar (10th Cir. 2024), quoting National Institute of Family and Life Advocates v. Becerra (2018) ("States may regulate professional conduct, even though that conduct incidentally involves speech").

The case has received an extraordinary amount of attention and (by my count) some 87 amici briefs. There's a useful overview by the Trevor Project that offers more context, and I would also commend this interesting amicus brief from the Korematsu Center arguing, among other things, that "Opponents of Civil Rights Legislation Have Long Tried to Ground a Right to Discriminate in Free Speech or Free Exercise Theories."

Like yesterday, today's second argument is not one for the casual observer, as it involves rather difficult criminal procedure issues: "Whether the double jeopardy clause of the Fifth Amendment permits two sentences for an act that violates 18 U.S.C. § 924(c) and (j)." NACDL has a short summary and a brief.

Wednesday, October 8

Bost v. Illinois State Board of Elections involves the contentious issue of mail-in ballot procedures, but the Court will address only technical standing issues so I wouldn't recommend this one for the casual observer. The Seventh Circuit held that challengers lacked standing because the voters did not have a "concrete and particularized" injury and the candidates could point only to "speculative" notions of how they could be harmed. The case makes for unusual alliances, with the ACLU and League of Women Voters on the same side as the Republican Party.

Today's second case, USPS v. Konan, likewise has limited appeal, involving interpretation of the Federal Tort Claims Act: "Whether a plaintiff's claim that she and her tenants did not receive mail because U.S. Postal Service employees intentionally did not deliver it to a designated address arises out of "the loss" or "miscarriage" of letters or postal matter under the Federal Tort Claims Act."

The Court is closed on Monday, October 13 in observance of Columbus/Indigenous Peoples' Day

Tuesday, October 14

I wouldn't suggest the technical civil procedure issues in Bowe v. US ("(1) Whether 28 U.S.C. § 2244(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; and (2) whether Subsection 2244(b)(3)(E) deprives this court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under Section 2255.")

But today's second case, although also a bit dense, should be interesting and accessible to the casual observer interested in criminal law and constitutional limits on ex post facto laws. Ellingburg v. US challenges the retroactivity of the Mandatory Victim Restitution Act. This case finds the Cato Institute on the same side as NACDL, both of whom have useful explainers and briefs.

Wednesday, October 15 — Voting Rights & Searches

Two major cases today, as the Court finishes its first block of cases.

Up first is Louisiana's congressional redistricting map. Louisiana v. Callais is a very complex case — so much so that it was argued last March but the Court ordered further briefing and another oral argument day on additional issues. In essence, there is an asserted clash between the Voting Rights Act, which in some circumstances requires states to be cognizant of race when redrawing districts in order to prevent the dilution of the minority vote, and the constitution's Equal Protection Clause, which the Court has increasingly insisted requires race neutrality. See the explainers from Amy Howe and from the Election Law Blog.

Today's second case involves warrantless searches. It is axiomatic that police may enter a home without a warrant only in limited circumstances, including, as asserted in Case v. Montana, where there are "exigent circumstances" requiring "emergency aid." But do police need probable cause to believe there is such an emergency, or only some lesser level of suspicion? The Circuit Courts are split on that question, and the cert. petition here suggests that the case presents a useful set of facts to resolve the issue. The defendant's girlfriend told police he was a suicide risk, but the responding officers knew him and body cam evidence shows them all stating "that it was unlikely Case required immediate aid, but rather was likely lying in wait for them to commit suicide by cop." The Montana Supreme Court majority held that the girlfriend's report created sufficient reasonable suspicion to permit warrantless entry, while the dissent opined that probable cause to believe he was in imminent danger was required and was negated by the officers' statements and actions in waiting 40 minutes. The ABA has a short overview and the APA has an interesting brief in support of neither side.

The next argument is scheduled for November 3, so look for another post from me in late September.

Published on Leave a comment on October 2025 term – lottery opens

Yesterday afternoon, the Court released the argument calendar for the first two months of the October 2025 term. (This seems later in the summer than usual but I haven't checked my memory on that.) Amy Howe has a highlight of some of the major cases and I will offer more details in a future blog post soon. In particular, she notes the Oct 7 argument on the Colorado "conversion therapy" ban (Chiles v. Salazar) and the Oct 15 Voting Rights Act case (Louisiana v. Callais). I'll also highlight the other Oct 15 case concerning warrant requirements (Case v. Montana) as well as an Oct 8 challenge to mail ballot procedures (Bost v. Illinois Board of Elections). Again, more details on those and other cases to come soon.

But I'm offering this quick post now because it appears that the Court is continuing the lottery system for public seating, although the FAQ still calls it a "pilot program" (last term was the first). You can enter the lottery now; it's per argument (not per day), opens after that month's schedule is released. Note that it's a random drawing and there does not appear to be any value to registering early — but the chance to enter it closes 4 weeks before the argument. You can enter for a group but the FAQs warn that you cannot enter more than once either individually or as part of a group, that names must match a photo ID, and that "[i]f duplicate entries are submitted for the same argument, the Court may exclude all entries from those individual(s) from the lottery." Also plan to check your email, as you'll need to confirm your entry right away and also confirm that you'll attend if you are offered a seat (about 3 weeks before the argument).

Published on Leave a comment on Decision Days

The Court has now heard arguments in all cases scheduled for this term, so all that remains is the issuance of opinions. Currently, the Court has set "non-argument days" for Thursdays, in addition to "order list issuance days" on Mondays (except for one on Tuesday, May 27, in lieu of the Memorial Day holiday). Historically, the Court issued decisions on Mondays but that appears to have shifted to Thursdays, although that could change. The last date on the Court's calendar is Thursday, June 26, which roughly aligns with when the Court traditionally begins its summer recess.

The Court releases opinions as they become available. There is some pattern of earlier-heard cases coming first, but it is by no means consistent. There is also something of a history of the most contentious decisions being issued on the last day of the term.

When a decision is ready, the Justices will take the bench and the author of the majority opinion will "announce" it. This is unofficial and varies a bit from the written opinion — which apparently is why there is no audio stream for this; you have to be in the courtroom to experience it. I have been there for a few announcements of major opinions and it can feel very meaningful, so it's certainly something to consider if you are in town.

Lines for decision days have traditionally been much less extreme than for oral arguments. This year, the Court piloted a lottery system, along side the public line. (More on that this fall when we know whether it will continue for the next term.) The website also said that this lottery system is available for "non-argument sessions" as well, but as of May 22, only June 26 is available to select. I'm not sure if this is by design, but that is the last scheduled day of the term — so it's possible some of the most high-profile decisions will be issued that day. It might be worth entering your name in the system. You will need to do so at least 4 weeks before, then watch your email 3 weeks before and be sure to confirm quickly if offered a spot, since the invitation expires in 24 hours. There will also be a first-come public line, for that and all other decision days. But the lottery winners are seated first and it's unclear how many other seats will be available. There have been at least a few days this term when only a handful got in off the line.

It's possible I'll have a comment on a decision or other development, but this blog will largely go on recess until fall, when the first block of arguments for the October 2025 term are announced.

Published on Leave a comment on May 15 – Birthright Citizenship

The Court will sit for a very unusual set of oral arguments tomorrow (Thursday, May 15) to review the Trump Administration's request to stay the preliminary injunctions that have been issued in three cases (Trump v. CASA, Trump v. Washington, and Trump v. New Jersey), blocking implementation of the Executive Order that purports to end the presumption of U.S. citizenship for everyone born in this country in the manner that the 14th Amendment has been interpreted to require for over a century. I filed a brief in these cases (as blogged about here and as covered by the campus newspaper here) before the Court scheduled oral argument. Such cases are usually resolved on the written briefings only; the Court has only held oral arguments on motions to stay a preliminary injunction three other times in the last fifty years.

The cases have received considerable attention and most of the speculation is that the Court is interested in reviewing the concept of nationwide injunctions issued by U.S. District Courts. Of course, the federal government routinely takes actions that should be reviewed by the judiciary before the status quo ante can change, and the Supreme Court does not have capacity to review them all in the first instance. But there are legitimate balance of powers concerns. I will be listening for indications of how the Justices might issue a limited ruling on this matter, or even skirt the issue altogether (as they always have so far on this, and as they often do on other contentious issues). SCOTUSBlog has a very thorough explainer for these cases that I highly recommend reviewing to help you follow the arguments.

A few people have asked me about attending the arguments in person, and how soon to get in line. My sense is that my general advice of 3am is probably about right, but it is incredibly difficult to say. The cases are coming after the scheduled end of arguments in all other scheduled cases this term – and in a time of totally overwhelming news cycles – so may be off the radar a bit. I am also not aware of organized groups attending the arguments in large numbers, although there is a call for a presence outside the courthouse. And rain is forecast for the overnight hours. But obviously, it is an incredibly important case and may be a bellwether for how the Court will deal with Executive actions that disrupt settled law.

You can still listen online, but if you're in town, I highly recommend going very early in hopes of getting into the courtroom. Short of that, major cases always draw demonstrators to the sidewalk in front of the Court, and arguing counsel usually speaks at a press conference and/or rally after the arguments. So it’s worth going to the Court just to take in the atmosphere outside the arguments, even if you can’t make it inside.

Published on Leave a comment on Late February and early March cases

The next block of SCOTUS arguments includes some extremely important issues that have not received much public attention: among others, the right to demand DNA testing after being sentenced to death, "reverse discrimination" standards and showings, and gun-maker liability.

Monday, February 24

A really interesting death penalty case involving DNA testing, with an odd standing issue, is the only case scheduled for argument today. In Gutierrez v. Saenz, Mr. Gutierrez admitted to being part of a robbery that resulted in a person's death but maintains that he did not know the others would kill and that he remained outside during the robbery. Under Texas law (termed the "law of par­ties," which is a version of the felony murder rule), Gutierrez would be culpable for murder but might not be eligible for the death penalty if not sufficiently involved in the killing. He has sought DNA testing to confirm he was not in the trailer at the time of the murder, but Texas law entitles a convicted person to obtain DNA testing only if such testing could result in them not being convicted – not if it would merely result in a lesser sentence. That obstacle, according to Gutierrez, makes other Texas laws purporting to provide for post-conviction proceedings to show that the person was ineligible for the death penalty so illusory that it arises to a violation of the federal constitutional guarantee to due process. But Gutierrez also faces a standing obstacle to challenging the DNA testing law. The state argues that even if it were a violation of due process to deny DNA testing where it could at most result in a change of sentence, the state still would not have to allow DNA testing in Gutierrez's case because, the Fifth Circuit held, regardless of whether DNA evidence showed him to be in the trailer or not, "other evidence sufficiently supported that Gutierrez was still legally subject to the death penalty." Accordingly, the Fifth Circuit reasoned, since DNA evidence would not necessarily result in a lesser sentence for Gutierrez, he lacks standing to challenge the state law that bars it in instances where only sentence would be impacted. For more details about the case and challenger's arguments, see this article from the Death Penalty Information Center.

Tuesday, February 25

Two cases today concerning judicial authority and criminal sentencing. Both will be a little arcane, so just short notes and links. The first case, Esteras v. United States, concerns what factors a judge may consider when imposing sentence. The second case, Perttu v. Richards, concerns the Prison Litigation Reform Act and asks whether "prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim."

Wednesday, February 26

The only case today, Ames v. Ohio Department of Youth Services, is a Title VII employment discrimination case alleging that an employee was denied a promotion because she is straight. In 2020, the Supreme Court held in Bostock v. Clayton County that discrimination on the basis of sexual orientation will, in most cases at least, also constitute discrimination on the basis of sex in violation of the Civil Rights Act; this will be the first case in which the Court considers a claim of "reverse sexual orientation discrimination." The standard McDonnell Douglas burden-shifting framework requires an employee to show, at the first step (prima facie stage) that they were a member of protected class, eligible for a position, and a similarly situated person who was a member of a different demographic class was instead selected for that position (or the position remained open). [The burden then shifts to the employer to articulate a legitimate non-discriminatory reason. And if they do, then at the third step of the framework the employee would have a carry the burden of convincing the jury that this purported reason was pretext for a true discriminatory motive.] And although it has always been true that majority groups are protected under the Civil Rights Act, some courts treat claims by majority and minority employees differently. In those Circuits, members of traditionally discriminated against groups can rely on that social history at the prima facie showing to shift the burden to the employee for the second step, but employees from majority groups need to first show that this particular employer discriminates against their majority group. In their arguments, the state employer here ties this to the underlying rationale for the burden-shifting framwork -- the whole reason we have that framework is to identify where there are "facts that, ‘if otherwise unexplained,’ suggest that an employment decision was ‘more likely than not based on the consideration of impermissible factors.’” That inference does not arise, the argument goes, in the absence of either a social history (the "background circumstances" faced by traditionally discriminated against groups) or a reason to think that this specific employer is one that discriminates against majority groups. See this useful explainer from the National Constitution Center. I also recommend reviewing the amicus brief from the NAACP LDEF, arguing that "Consideration of the context in which an employment action was taken fits within Title VII’s purpose and the individualized analysis the statute requires."

[Two procedural issues on Monday the 3rd are not ones I'd recommend for the casual observer: FSIA and minimum contacts and FRCP 60(b)(6)]

Tuesday, March 4 -- Gun Maker Liability

An extremely important and legally complex case today, in which Mexico is suing gun manufacturers and a distributor, alleging, as the First Circuit summarized, that approximately half a million guns are trafficked into Mexico each year from these defendants (often to cartels) and "that defendants know that their guns are trafficked into Mexico and make deliberate design, marketing, and distribution choices to retain and grow that illegal market and the substantial profits that it produces." The case is complicated by the Protection of Lawful Commerce in Arms Act (PLCAA), which largely immunizes gun makers and distributors from liability but, by its terms, does not apply to "an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought." 15 U.S.C. § 7903(5)(A)(iii). The First Circuit held that PLCAA does apply extraterritorially (to events that occur outside the US) but also held that Mexico's complaint fell within that "predicate exception" to immunity. See this useful explainer from the Columbia Undergrad. L. Rev. I also call your attention to the amicus brief from March For Our Lives, expressing concern that the gun makers' "view of PLCAA and proximate cause would close the courthouse doors to individuals who are foreseeably harmed by gun companies’ misconduct and allow such bad actors to operate with impunity."

Wednesday, March 5

The case today, Nuclear Regulatory Commission v. Texas, is a factually important one but too procedural for the casual observer:  

  • (1) Whether the Hobbs Act, which authorizes a “party aggrieved” by an agency’s “final order” to petition for review in a court of appeals, allows nonparties to obtain review of claims asserting that an agency order exceeds the agency’s statutory authority; and (2) whether the Atomic Energy Act of 1954and the Nuclear Waste Policy Act of 1982 permit the Nuclear Regulatory Commission to license private entities to temporarily store spent nuclear fuel away from the nuclear-reactor sites where the spent fuel was generated.

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Published on 1 Comment on January 2025 Cases

The January argument calendar includes some very high-profile cases — the TikTok ban and age verification on porn sites — as well as some very important cases that have received less public attention involving police shootings, ADA coverage, the First Step Act, false versus misleading statements (by a Daley family member), and administrative agency interpretations of federal statutes.

See menus at the top of the page for information about attending arguments in person or listening in online.

Friday, January 10 - the TikTok ban

The Court will sit for an unusual Friday session today in order to hear oral argument in TikTok, Inc. v. Garland: "Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment."

Although the bottom-line positions and sides are very well known in this high-profile case, a major legal question is the level of scrutiny, also known as the legal test or framework. The government argued that this case does not implicate the First Amendment (and would only have to satisfy rational basis review) for two reasons: that it regulates ownership rather than speech, and that it regulates a foreign entity with no First Amendment rights. The DC Circuit rejected that argument, noting that the curation of content is speech and TikTok includes domestic entities whose activities are regulated by the law. TikTok argued that strict scrutiny applies (under which the law can only be upheld if it serves a compelling governmental interest and is narrowly tailored to that interest) because it is content-based, in that the law "single[s] out a particular speaker." The DC Circuit also rejected that, reasoning that the government justifies the law on the basis of national security concerns with foreign control/ownership. Although some of the government's justifications reference content, "content on the platform could in principle remain unchanged after divestiture, and people in the United States would remain free to read and share as much PRC propaganda (or any other content) as they desire on TikTok or any other platform of their choosing."

On this question of level of scrutiny, I call your attention to the amicus brief of Asian Americans Advancing Justice and the Fred T. Korematsu Center for Law and Equality (out of UC Irvine Law), filed in support of neither party and expressing concern that "Targeting Speech on the Basis of National Domicile Is Content-Based and Viewpoint Discrimination" and quoting the dissent in the infamous Korematsu case for the principle "that 'it is essential that there be definite limits to' the deference accorded to claims of national security, for '[i]ndividuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.'” Amicus brief at 3, quoting Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting).

The DC Circuit reasoned that intermediate scrutiny, under which a law is constitutional "if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests," was the proper standard -- but it then proceeded to explain that its decision would not apply that standard or rest on the conclusion that it rather than strict scrutiny applies because the law satisfied even the more demanding standard of strict scrutiny. It then proceeded to hold that the national security, data collection, and content manipulation concerns were compelling governmental interests, and that the law is narrowly tailored "because [the restrictions] are limited to foreign adversary control of a substantial medium of communication and include a divestiture exemption." It also rejected TikTok's suggestion for an alternative framework (confusingly referred to as the NSA, for National Security Agreement), holding that the courts were not in a position "to reject the Government's risk assessment and override its ultimate judgment."

Of course, the President-elect submitted an amicus brief that received considerable attention, arguing that the Court should "stay the statute’s effective date to allow his incoming Administration to pursue a negotiated resolution." That suggestion gets no mention in TikTok's reply brief and only three sentences in the government's reply brief, which rather summarily dismisses the legal basis for such a move. It would have been fairly standard and expected for an incoming president to offer a position on the constitutionality of a major act of congress like this, but Trump's brief expressly "takes no position on the merits of the dispute." The brief was authored by D. John Sauer, who represented Trump in the presidential immunity case and who reportedly is Trump's pick for Solicitor General (who represents the administration before the Court).

There will be three arguing counsel today: TikTok and "creator petitioners" on one side will have 15 minutes each to argue against the law for different reasons, and then the government has 30 minutes to defend the law and the decision below. As in all cases now, when the time expires for each arguing counsel, the Justices go in order of seniority with a final round of questioning. So with three instead of two rounds of that, expect the arguments to run even longer than usual.

Monday, January 13

First Step Act - Hewitt v. US

The first case today involves retroactivity of the First Step Act, which is a major criminal justice reform law enacted in 2018. The “Scarecrow Bandits” were convicted of a series of bank robberies in 2008 the Dallas-Fort Worth area. Among other things, the First Step Act changed the sentences for use of a firearm in furtherance of a bank robbery, including the mandatory minimum and the process of "stacking," under which first, second, and subsequent violations of the law could arise out of the same incident. The First Step Act also contains a peculiar retroactivity provision, providing that it applies where the offense occurred prior to enactment only "if a sentence for the offense has not been imposed as of such date of enactment." The petitioners in Hewitt v. US were sentenced back in 2008 but then sought appeals and resentencing, some of which were successful to a limited extent, in 2020. As the 5th Circuit put it, "But does the First Step Act's reach encompass prior offenses for which a pre-Act sentence is later vacated? Can it be said that such a sentence 'has not been imposed'?"

The 5th Circuit held that Hewitt was not able to use the First Step Act. Before the Supreme Court, the federal government says that was probably wrong and a better reading of the First Step Act is that its "amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing" — but the government nevertheless asked the Court not to take the case and to allow the circuit's decision to stand because the issue has such limited applicability as a practical matter (including because Congress might clarify the law in the near future). The Court took the case and asked a former clerk to argue in support of affirming the circuit's decision.

ADA - Stanley v. City of Sanford, Florida

Today's second case has a rather compelling question presented: "Whether, under the Americans with Disabilities Act, a former employee — who was qualified to perform her job and who earned post-employment benefits while employed — loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job."

The case turns on the language of the ADA, which makes it unlawful to "discriminate against a qualified individual with a disability." 42 U.S.C. § 12112. Stanley worked as a firefighter for nearly two decades, then retired due to Parkinson's. While she was employed, the department changed its retiree healthcare coverage: most would be covered until age 65, but disabled retirees would be covered for only two years after retirement. She sued just before that two year period ended. The 11th Circuit held that she was no longer covered by the ADA because she was no longer "a qualified individual with a disability," which in turn is defined as someone "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." As a retiree, she no longer holds or desires any position with the department.

Other Circuits have held the opposite, and there's a useful explainer and brief from one advocacy organization. Expect the arguments to run rather long, since the federal government has requested and been granted leave to participate in the arguments (so there will be an extra round of questions, as noted for the TikTok arguments discussed above).

Tuesday, January 14

"False" statements and Chicago power families - Thompson v. US

Today's first case involves Patrick Daley Thompson, a relative of Chicago mayoral icons (grandson of Richard J. Daley and nephew of Richard M. Daley). He signed a promissory note for $110,000 then took out two more loans totaling almost as much; no paperwork was required for the final two loans. The bank apparently never tried to collect more than one $390 payment and went insolvent several years later. When the FDIC took over and another bank was charged with collecting funds owed to Washington Federal Bank for Savings, he professed confusion: "the numbers that you've sent me shows that I have a loan for $269,000. I—I borrowed $100,000 . . . I signed a Promissory Note . . . for $100,000." (Recorded phone conversation reprinted in the 7th Circuit opinion.) When the truth came out, he was charged with violation of a federal law that prohibits making a "false statement" concerning a loan with a federally insured bank, 18 U.S.C. § 1014. His defense is quite brazen:

  • As Thompson sees it, he never outright lied. For example, rather than stating that he owed only $110,000, he just said that he borrowed $110,000—which is true even if he later borrowed more. Although Thompson acknowledges that his statements may have misrepresented what he owed, he contends that the statute does not reach statements that are misleading but literally true. (7th Circuit opinion.)

The petition for certiorari notes that there is a "circuit split." "Three circuits—the First, Sixth, and Eleventh—interpret the statute literally, to criminalize only the making of statements that are false. Four other circuits—the Fifth, Eighth, Tenth, and now the Seventh—interpret the statute more broadly, to prohibit not only false statements but also misleading statements." It should be a fun argument.

Civ. Pro.

The second case today, Waetzig v. Halliburton Energy Services, is one I wouldn't recommend for the casual observer: Whether a voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41 is a “final judgment, order, or proceeding” under Federal Rule of Civil Procedure 60(b)."

Wednesday, January 15

the one with porn - Free Speech Coalition v. Paxton

Just one case today, about Texas’s H.B. 1181, which requires age verification on websites that contain “sexual material harmful to minors” on more than one-third of their total content.

It is settled that the First Amendment protects adults' right to access pornography as well as the ability to speak and access speech anonymously, as thoroughly discussed in the amicus brief by First Amendment Scholars. Laws that would restrict this right must withstand strict scrutiny – they are constitutional only if they serve a compelling governmental interest and are narrowly tailored to that interest. But it is also settled that the state may ban minors' access to pornography. In this case, the Fifth Circuit applied a decision from the 1960s that upheld a New York law prohibiting the sale of pornographic magazines to minors, applying "rational basis" review instead of strict scrutiny. This is the narrow question on which the Court has accepted certiorari: "Whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech."

I commend this explainer and the amicus brief from the Electronic Privacy Information Center. The organization often advocates for speech rights against governmental intrusion, but filed a brief in support of neither party in this case. It urges that mere rational basis review would allow for unwarranted regulation of online speech but also cautions the Court not to issue an opinion that would curtail appropriate age-verification laws, arguing that courts in each instance should be instructed to engage in "a highly statute- and fact-specific inquiry" to determine if First Amendment protected activity truly is being burdened.

This is the only case scheduled for argument today. As with a couple of cases noted above, the Solicitor General — still Prelogar; this will be her last time arguing as SG under Biden — will be participating as a third arguing counsel, so expect the arguments to run long.

The Court is closed on Monday, January 20 (MLK Day and Inauguration Day)

Tuesday, January 21

Although the first case today involves tobacco, FDA v. R.J. Reynolds Vapor Co. is not one I would recommend for the casual observer as it involves a narrow issue of civil procedure: "Whether a manufacturer may file a petition for review in a circuit (other than the U.S. Court of Appeals for the District of Columbia Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit."

Administrative state - McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.

Today's second case involves the uncertain status of administrative agency interpretation of federal statutes they administer, yet it has not received much attention. The plaintiffs won on their claims that McKesson sent advertisements by fax (in 2009-10) without consent or an opt-out notice, in violation of the Telephone Consumer Protection Act (TCPA). But they lost their bid to certify a class of others who had received such faxes, primarily because there was no way to determine if others had received faxes via an online fax service and the FCC had interpreted the TCPA to not extend to such faxes. The district court held, and the Ninth Circuit affirmed, that it was bound by that FCC determination. And the Hobbs Act requires that agency orders can only be challenged in actions brought in the Circuit Courts of Appeal. Thus the question presented in the Supreme Court: "Whether the Hobbs Act required the district court in this case to accept the Federal Communications Commission’s legal interpretation of the Telephone Consumer Protection Act."

Again, the Solicitor General sought (under Prelogar) and has been granted leave to participate in the oral arguments (which will be conducted under Trump's acting SG, presumably D. John Sauer or his deputy). So as above, expect the arguments to run a bit long.

I'm surprised this case has not garnered more attention, given the focus on the administrative state and the fact that it will be the new administration's SG participating. For a nuanced and considered view of judicial review of administrative agency interpretations, see the amicus brief from Public Citizen.

Wednesday, January 22

Police shootings - Barnes v. Felix

As the RFK Center for Human Rights notes in a useful overview, this is "a case stemming from the tragic killing of Ashtian Barnes, a Black man who a deputy shot near Houston during a traffic stop for an unpaid toll fee associated with his rental car’s license plate." Even the libertarian Cato Institute wrote in its brief, "Yet again, an unarmed Black American has been needlessly killed during a routine traffic stop."

The Fifth Circuit opinion describes what happened. While Barnes was searching for the rental car agreement, the officer orders Barnes to open the trunk; at some point, the car begins to move and the officer fires "inside the vehicle with 'no visibility' as to where he was aiming." The trial court found no explanation for Barnes turning his car back on and held "that Officer Felix's actions prior to the moment of threat, including that Officer Felix 'jumped onto the door sill,' had 'no bearing' on the officer's ultimate use of force." In addition, the trial court held "that the moment of threat occurred in the two seconds before Barnes was shot. At that time, '[Officer] Felix was still hanging onto the moving vehicle and believed it would run him over,' which could have made Officer Felix 'reasonably believe his life was in imminent danger.'" The appellate court affirmed all this:

  • we may only ask whether Officer Felix "was in danger 'at the moment of the threat' that caused him to use deadly force against Barnes." In this circuit, "it is well-established that the excessive-force inquiry is confined to whether the officers or other persons were in danger at the moment of the threat that resulted in the officers' use of deadly force." This "moment of threat" test means that "the focus of the inquiry should be on the act that led the officer to discharge his weapon." "Any of the officers' actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry in this Circuit."

This is the key issue, and the official question presented in the Court: "Whether courts should apply the 'moment of the threat' doctrine when evaluating an excessive force claim under the Fourth Amendment." The Cato Institute brief makes a compelling argument that "[t]he moment of threat test has again prevented courts from undertaking a historically faithful inquiry into whether the encounter had to be fatal. The moment of threat test should be discarded because it contradicts longstanding common law rules for assessing the reasonableness of a seizure."

I'm not aware of much public attention on this case yet, but I suspect that will change in the days before the argument and it has already received considerable attention from advocacy groups, with some 34 amici briefs filed. It will be an important and interesting case to attend, but expect long lines from quite early.

ERISA

The final January argument is an ERISA case — a notoriously complex area of law — and not one I would recommend to the casual observer. Cunningham v. Cornell Univ.: "Whether a plaintiff can state a claim by alleging that a [retirement] plan fiduciary engaged in a transaction constituting a furnishing of goods, services, or facilities between the plan and a party in interest, as proscribed by 29 U.S.C. § 1106(a)(1)(C), or whether a plaintiff must plead and prove additional elements and facts not contained in the provision’s text."

Published on Leave a comment on December 2024 cases

This block of oral arguments include issues concerning administrative agency authority (in the context of e-cigarettes), sovereign immunity for the confiscation of property during the Holocaust, healthcare for trans minors, the fraudulent inducement theory under federal mail and wire fraud laws, rights of reservists, causation under environmental law, and an equity court's authority to award disgorgement of profits. [See menus at the top of the page for information about attending arguments in person or listening in online.]

Monday, December 2

First up is a critical case involving the power of administrative agencies, this time in the context of vaping and e-cigarette products. A 2009 law, the Family Smoking Prevention and Tobacco Control Act, prohibited flavored "cigarettes" and required FDA approval of any new tobacco products, which can come only after the agency has determined that the new product is "appropriate for the protection of the public health." 21 U.S.C. § 387g(a)(3)(A). The companies in FDA v. Wages and White Lion Investments, L.L.C., sought approval for e-cigarettes (with names including “Rainbow Road,” “Crème Brulee,” and “Jimmy the Juice Man Peachy Strawberry"), asserting that they would allow adult smokers to transition to less harmful products. The FDA rejected the application, and the 5th Circuit held that the FDA action was "arbitrary and capricious" under the Administrative Procedures Act, 5 U.S.C. § 706. Importantly, this is a line drawn by statute and is different from the Court-defined deference under the recently overruled Chevron framework, although there is good reason to think that some members of the Court will view administrative agency authority with a similar level of skepticism/hostility. A critical issue in this case is whether the FDA rejected the applications because it "secretly" had a requirement that the applicants provide longitudinal studies that affirmatively show the health value of the product or simply because the FDA found that the studies the applicants did provide did not, in fact, support the benefits the companies claimed but instead only demonstrated serious risks to youth. Amy Howe has a useful and more thorough overview, which also notes that the 5th Circuit decision is out of step with other Circuits in multiple respects and was authored by "Judge Andrew Oldham, often mentioned as a possible nominee for the Supreme Court if a vacancy arises during the second Trump administration."

The second case today is not one for the casual observer - unless you're particularly interested in how sovereign immunity impacts bankruptcy estates! When a bankrupt entity makes a payment that does not provide it anything of value (and especially when it benefits someone other than the creditor), that is often treated as a "fraudulent conveyance" and the funds must be returned to the bankrupt estate to be fairly apportioned out to all creditors. In U.S. v. Miller, the company paid back taxes to the IRS, which arguably benefited the owners individually, and then filed for bankruptcy. The IRS claims that sovereign immunity prevents application of state law that would recover that payment. Useful explainer here.

Tuesday, December 3

Just one case today, Republic of Hungary v. Simon, arising from "the Hungarian government's confiscation of property owned by Jews during the Holocaust. 'Nowhere was the Holocaust executed with such speed and ferocity as it was in Hungary.'" (D.C. Circuit decision.) The Court will, once again, focus on the scope of the Foreign Sovereign Immunity Act. FSIA permits suits against sovereign entities for property taken in violation of international law that also "is present in the United States in connection with a commercial activity carried on in the United States by the foreign state." The Supreme Court has held that states taking their own citizens' property is not a violation of international law that triggers an exception to sovereign immunity. So the DC Circuit here only allowed claims by Czechoslovakian citizens to go forward against Hungary, rejecting claims by (arguably) Hungarian citizens that they were "stateless" by the time Hungary seized their assets.

As to the US commercial-nexus requirement, the Circuit remanded the case for factual findings but noted that "plaintiffs need not produce evidence directly tracing the liquidated proceeds of their stolen property" but rather the defendants would bear the burden to "affirmatively establish by a preponderance of the evidence that their current resources do not trace back to the property originally expropriated." This allocation of the burden of proof was required because "Congress knew that an expropriating foreign state or instrumentality thereof might 'exchange[]' or liquidate the stolen property—i.e. convert it to cash or cash equivalents. It included language in the FSIA to enable plaintiffs to satisfy the expropriation exception's jurisdictional nexus requirements in those circumstances." D.C. Circuit, citing 28 U.S.C. § 1605(a)(3).

The Supreme Court has accepted cert. on: "(1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) whether a plaintiff must make out a valid claim that an exception to the FSIA applies at the pleading stage, rather than merely raising a plausible inference; and (3) whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the FSIA."

Wednesday, December 4 - Trans Rights and Tenn. SB 1

One of the more politically contentious cases is scheduled for today: U.S. v. Skrmetti concerns Tennessee's SB1, which prohibits puberty blockers, hormone therapy, and surgeries for trans minors. These are very familiar issues, so I won't say much here. KFF offers a thorough overview of this specific case as well as laws concerning healthcare for trans minors nationally. The Court has accepted cert. on a 14th Amendment equal protection question. The federal government argues that the law classifies on the basis of sex:

the law frames its prohibition in explicit sex-based terms: The covered treatments are banned if they are prescribed “for the purpose” of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” But the law leaves the same treatments entirely unrestricted if they are prescribed for any other purpose, such as treating delayed or precocious puberty. Thus, for example, a teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.

Accordingly, expect a lot of argument concerning Justice Gorsuch's decision in Bostock, which held that Title VII's prohibition on "sex" discrimination encompassed discrimination on the basis of gender identity (or sexual orientation). This would allow supporters of trans rights to subject the law to heightened scrutiny under the 14th Amendment as a form of sex discrimination, without having to argue for the level of scrutiny that should apply to discrimination on the basis of gender identity.

Monday, December 9

The first case today concerns the fraudulent inducement theory under federal mail and wire fraud laws, in the context of a scheme to disguise business arrangements in order to satisfy the "disadvantaged business enterprises (DBE)" contracting rules. Federal Dept. of Transportation funds are awarded subject to requirements that recipients set participation goals for DBEs. In Kousisis v. U.S., the contractor committed to working with a DBE but that was just a pass-through entity, which got a 2.25% fee on supplies purchased from other entities. The Court appears to have taken the case to resolve a "Circuit split," concerning "whether deception to induce a fair commercial exchange is property fraud," according to the Petition. The case has not received a great deal of attention, but there are useful summaries here and here.

The second case today, Feliciano v. Dept of Transportation, is important for people serving the reserves: "Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency." The Federal Circuit Blog offers a thorough argument preview.

Tuesday, December 10

An environmental law case today concerning causation could have major implications for the government's response to climate change: "Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority." The most familiar component of NEPA is probably the requirement for an environmental impact statement (EIS) for major federal projects. In Seven County Infrastructure Coalition v. Eagle County, Colorado, the Surface Transportation Board approved a railway after its EIS declined to consider how the new line would impact existing lines or the impacts of increased crude oil drilling, refining, and transportation (including potential spills). Berkeley Law offers a very thorough discussion of causation and environmental law as part of its assessment of this case.

Wednesday, December 11

The final December argument comes in the context of a trademark infringement award that required disgorgement of profits (coming to some $43 million), but could have broader implications for how courts calculate awards, as this post notes. The question presented sheds a little light on the rather absurd caption: Dewberry Group, Inc. v. Dewberry Engineers, Inc., Whether an award of the “defendant’s profits” under the Lanham Act can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

The Court will then be on recess for the holidays, until January 13.

The first block of SCOTUS arguments starts with some procedural issues but then hears cases concerning regulation of "ghost guns," prosecutorial misconduct in death penalty cases, RICO damages, immigration procedure, and veterans benefits before wrapping up with a major Clean Water Act case. Summaries are below.
Published on Leave a comment on First Monday and October 2024 cases

Each Supreme Court term begins on the “First Monday” in October. The Court typically hears cases on Monday, Tuesday, and Wednesday of two weeks in each month (more or less) until May, issues final decisions, then goes on summer recess beginning in late June or early July.

The first block of arguments starts with some procedural issues but then hears cases concerning regulation of "ghost guns," prosecutorial misconduct in death penalty cases, RICO damages, immigration procedure, and veterans benefits before wrapping up with a major Clean Water Act case. Summaries are below.

See the other pages for tips on attending in-person or listening online. I will offer posts highlighting November and later argument sessions some time after the first block of arguments days are complete.

First Monday, October 7

The term begins with issues that will be somewhat difficult for the casual observer to follow — important, but resting on rather arcane procedural doctrines.

First up is Williams v. Washington, considering "whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court." Section 1983 was originally enacted during Reconstruction and allows individuals to sue for deprivation of rights "under color of law." In other words, you can sue the person who used the power of their office to violate your federally protected rights. In this case, a group of applicants for unemployment benefits sued Alabama officials for delays in processing their applications. Alabama courts said they have to rely on the usual administrative filing and appeals processes and could not involve the courts at this stage. There is past precedent holding that federal courts can entertain § 1983 claims regardless of state administrative procedural obstacles, but the issue of whether federal law requires that state courts, also, must set aside state administrative procedural obstacles when someone brings a § 1983 claim in state court is unresolved. The Public Citizen amicus brief is a good source for understanding the broader significance of this issue.

Today's second case, Royal Canin U.S.A. v. Wullschleger, involves something commonly known as forum shopping. Plaintiffs chose where to file their suit initially, but if they pick state court then the defendants may "remove" it to federal court under certain conditions, including if there is a "federal question" (i.e., the suit requires consideration and application of federal law). In this case, that's what happened — after a somewhat convoluted procedural history, but so far fairly standard. Unhappy with that result, the plaintiffs then amended their lawsuit to remove all references to federal law. So the question for the Court is, basically, can a plaintiff do that? This argument will be particularly challenging for a casual observer to follow, but the 8th Circuit decision is fairly readable. You might also be eased into the procedural minutia by the interesting underlying issue: they claim the pet food companies mislead them about prescription requirements!

Tuesday, October 8

An important gun regulation issue – specifically "ghost guns" (a.k.a. “firearms parts kits” or "privately made firearms") – is up first today in Garland v. VanDerStok. Notably, this dispute also has an overlay of statutory interpretation and administrative rule making. The Gun Control Act of 1968 (GCA) empowers the Bureau of Alcohol, Tobacco, and Firearms (ATF) to regulate "firearms," as well as “the frame or receiver of any such weapon.” 18 U.S.C. §921(a)(3). The GCA did not define "frame or receiver" and gun designs have changed over the years, so ATF has defined those terms and updated those definitions, most recently with a 2022 rule that would encompass kits and partially complete frames. NAAG offers a very useful and succinct overview of the history of this case and the parties' arguments. I'll also point out an interesting amici brief from linguistic scholars.

The official "question presented" is one of pure statutory interpretation: (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.

This framing of the question is noteworthy because, as recently as last term, there presumably would have been a question about whether the ATF had reasonably interpreted the ambiguous terms and incomplete definition in the underlying Congressional statute. But with the death of Chevron deference, it will be the Court deciding what the statue authorizes, without consideration of ATF expertise.

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The second case involves a critical issue for lawyers – attorney fees! Certain civil rights laws provide for "fee shifting," under which the prevailing party can require the other side to pay for their attorney fees. (The intent is to ensure that people with small monetary value claims can find representation. Without that, a contingency fee agreement for one-third of the damages for a few weeks' of lost wages for a minimum wage worker might not be enough for a lawyer to take the case, no matter how egregious the unlawful suspension was or how important the case is to the discriminated-against employee.) In Lackey v. Stinnie, residents challenged a Virginia law that suspended their drivers licenses, obtaining a preliminary injunction pending trial. But then the legislature repealed the law before the case could go to trail. Is that enough to make them a prevailing party for purposes of attorney fee shifting?

The US Solicitor General has asked to participate in oral arguments, which means that there will likely be three arguing counsel (and thus more time devoted to oral arguments).

Wednesday, October 9

Just one case today, and it's one of the more bizarre cases involving the death penalty and prosecutorial misconduct. Glossip v. Oklahoma involves a man who has been on death row for a 1997 murder (and was previously a named petitioner in a failed challenge to the method of execution). Today's case comes after Oklahoma's Attorney General acknowledged serious prosecutorial misconduct and false testimony in his original trial; the AG no longer supports his execution. But despite that, the Oklahoma courts have denied relief. The result is a highly unusual set of amici briefs (including from Ken Cuccinelli, Homeland Security Secretary under Trump) supporting Glossip, along with the relatively unusual appointment of a lawyer (a former clerk for CJ Roberts) to defend the state court ruling since the state AG will not. Scotusblog has a useful overview of the case.

[The Court is closed on Monday, October 14, in observance of Columbus / Indigenous Peoples Day]

Tuesday, October 15

RICO (the Racketeer Influenced and Corrupt Organizations Act) was created to go after organized crime, but it also provides that "[a]ny person injured in his business or property by reason of [unlawful RICO activity]" may sue in federal court and obtain treble damages and attorneys fees. 18 U.S.C. § 1964(c). The Court has clarified that the phrase “business or property” in the statute “exclud[es] … personal injuries.” RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 350 (2016). But how to draw the line between personal injuries and other property losses? In today's first case, Medical Marijuana, Inc. v. Horn, a commercial truck driver was injured and wanted alternative treatment, carefully reviewed CBD advertisements in light of his random drug testing requirements, but then failed a drug test. He then sued the marketers of the CBD oil he took, alleging they falsely advertised that it did not contain THC (which, independent lab tests confirmed, it did). Some circuit courts of appeal have held that lost wages are a form of "personal injury" that cannot be recovered in a RICO lawsuit. But in this case, the Second Circuit split with those other courts (and joined with the Ninth) in holding that wages are property and not personal injury (which instead describes "pain and suffering" and similar types of damages). So this case will resolve a "circuit split" as to "Whether economic harms resulting from personal injuries are injuries to 'business or property by reason of' the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act."

Today's second case involves the rather byzantine issues of immigration procedure and discretionary decisions. Briefly, in Bouarfa v. Mayorkas, a US citizen petitioned to have her non-citizen husband classified as an immediate relative. That petition was granted, but then revoked (based on an assertion that he had previously entered into a sham marriage). The Immigration and Nationality Act makes certain discretionary decisions unreviewable in the courts. The grant or denial of a petition is subject to clear standards and reviewable but, the government asserts and the courts so far have accepted, the decision to revoke the visa is discretionary and not reviewable. The district court "stated that an initial denial of a petition based on a marriage-fraud finding would be a reviewable, non-discretionary decision and expressed concern that there was a 'loophole' through which the Department 'could evade judicial review by granting a visa petition it should have denied outright and then immediately revoking its approval'" but nevertheless dismissed Bouarfa's case; the 11th Circuit affirmed. The Court has accepted cert. on "[w]hether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria."

Wednesday, October 16

The first case today involves veterans benefits and the benefit of the doubt rule on appeal. Veterans' applications for disability and other benefits have long enjoyed the "benefit of the doubt rule," so the vet's claim should be approved if the evidence favoring granting or denying it are essentially balanced. In 2002, Congress extended this to appeals, requiring the Veterans Court to "review the record of proceedings before the Secretary and the Board of Veterans’ Appeals . . . and shall take due account of the Secretary’s application of [the benefit-of-the-doubt rule].” Veterans’ Benefits Act, 38 U.S.C. § 7261(b). In Bufkin v. McDonough, the record contained some medical evaluations finding that Bufkin suffered from PTSD but others finding that he did not; the agency determined that the evaluations finding he did not suffer from PTSD were "more comprehensive" and "thus, the benefit of the doubt doctrine does not apply here." The Federal Circuit held that "if no issue that touches upon the benefit of the doubt rule is raised on appeal, the Veterans Court is not required to sua sponte review the underlying facts and address the benefit of the doubt rule." Bufkin argues that this essentially nullifies the Veterans' Benefits Act, and the court should have reviewed the entire record to ensure he received the benefit of the doubt at each stage of the proceedings (not just on appeal). See the overview here and the helpful amicus brief from the Fed Cir Bar Association.

Closing this term's first block of arguments is a major Clean Water Act case, City and County of San Francisco v. Environmental Protection Agency. The case concerns San Francisco's "combined sewer system" that collects both sewage and stormwater runoff and can sometimes overflow into the ocean. It has long operated under a National Pollutant Discharge Elimination System (NPDES) permit, as required by the Clean Water Act, but EPA issued a new permit in 2019. That latest permit uses "general narrative prohibitions," which San Francisco complains (per a useful BloombergLaw article) is "trying to tell permit holders they can’t cause ‘too much’ pollution, but it isn’t telling us what ‘too much’ is." In upholding the permit, the Ninth Circuit noted that the general narrative prohibitions simply prohibit discharges that "cause or contribute to a violation of any applicable water quality standard," or "create pollution, contamination, or nuisance," which the Circuit found to be sufficiently specific. The Court has accepted cert. on "Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform."

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