case suggestions – Page 2 – Prof. Zachary Wolfe, Esq.

Final decision days

June 20, 2023case suggestions

The Court has only two more decision days on its calendar as of this post on June 20: the usual Thursday release on June 22 and a Friday “non-argument” day that recently was added for June 23. But by my count, there are 18 cases argued earlier this term but not resolved as of June 20. We are still awaiting decisions on some of the most highly watched cases of the term — involving affirmative action, LGBT discrimination, the “independent state legislature theory” (preventing state courts from altering election laws), student loan forgiveness, employer accommodations of religious observances, and other significant cases noted below:

The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard
Mallory v. Norfolk Southern Railway Co (argued Nov. 8): a bit of a sleeper case that deserves more attention: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
US v. Texas (argued Nov. 29), challenging immigration law enforcement priorities.
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Moore v. Harper (argued Dec. 7), involving the “independent state legislature theory” that would undermine state court authority to address election law issues. This case is in a strange procedural posture because of state court actions since argument.
Biden v. Nebraska and Dept. of Educ. v. Brown (argued Feb. 28), the student loan forgiveness cases.
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
Counterman v. Colorado, concerning what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media.

So I would anticipate decision announcements next week as well, but we’ll have to watch the calendar on the front page of supremecourt.gov. I have no way to knowing when the final decisions will come down, or even if it will be next week (as I’m guessing) or if they will instead issue an extraordinary number of decision this Thursday and Friday. It would be very surprising if they are not wrapped up by the end of June.

I will note that Monday, June 26 is already on the calendar as an “order list issuance day,” that Mondays were common opinion release days in years past, and that June 26 is a storied day in LGBT history, as the date on which the Court issued Obergefell v. Hodges (in 2015), US v. Windsor (2013), and Lawrence v. Texas (2003). So with 303 Creative being among the unresolved cases, I have to wonder….

Remaining Decisions

June 2, 2023case suggestions

After the decisions announced on June 1 (which included a distressing 8-1 blow against the right to withhold one’s labor) we still have a large number of cases argued earlier this term that have not yet been resolved.

Decisions are announced on Thursdays beginning at 10:00am from the bench and released almost simultaneously on supremecourt.gov (which apparently means the end of “the running of the interns”!). June 22 is the last “non-argument day” on the Court’s calendar, although there is also an “order list issuance” day set for the following Monday and the Court often alters its calendar in the closing weeks. It would be extremely unusual for there to be any decision from this term after the end of June. After that, the Court will be in recess until First Monday in October (and this blog will be in recess until about a month before).

Below are a few highlights of what remain — not all of them, but the ones I am most watching. There is no way to know which decisions will be announced each day. The most significant cases often are held until the last day, with the others being released as they are ready, which typically corresponds to when the case was argued (and that’s the order below).

Allen v. Milligan (agued Oct. 4): Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.
The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard
Mallory v. Norfolk Southern Railway Co (argued Nov. 8): a bit of a sleeper case that deserves more attention: Whether the due process clause of the 14th Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state.
Haaland v. Brackeen (argued Nov. 9), involving the Indian Child Welfare Act.
US v. Texas (argued Nov. 29), challenging immigration law enforcement priorities.
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Moore v. Harper (argued Dec. 7), involving the “independent state legislature theory” that would undermine state court authority to address election law issues. This case is in a strange procedural posture because of state court actions since argument.
Biden v. Nebraska (argued Feb. 28), the student loan forgiveness case.
The Jack Daniel’s / Bad Spaniels trademark case (argued Mar. 22).
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
Counterman v. Colorado, concerning what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media.

April 2023 Arguments

April 12, 2023case suggestions

The last set of regularly scheduled arguments will be April 17-26 (Mondays to Wednesdays). There is one case that was granted cert. and has not yet been scheduled for argument, but it probably will be re-listed for argument next term. It’s also possible the Court will add an argument day (that would be extremely unusual, but so is the looming circuit split over Mifepristone….) but in all likelihood the Court will not hear cases after April 26 but will issue decisions roughly weekly until the end of June and then be on summer recess until First Monday in October.

Most of the April cases are on procedural issues or otherwise not ones I’d recommend for the casual observer, but there are a few important and interesting cases that deserve mention and your attention. I have also updated the information on attending in-person, and these cases should be particularly good choices for anyone looking for that experience!

Tuesday, April 18

A very important issue involving the scope of an employer’s Title VII obligation to accommodate religious observances is up first today, in Groff v. DeJoy. The text of Title VII prohibits discrimination on the basis of religion, 42 U.S.C. 2000e-2(a)(1), and defines that to include failure to accommodate an employee’s religious observance or practice unless the employer can demonstrate that it cannot do so “without undue hardship on the conduct of the employer’s business,” 42 U.S.C. 2000e( j). What that means, in turn, is the issue for today. In a seminal case in 1977, Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer did not have to accommodate an employee’s observance of the Sabbath where the employer showed it would either have to operate shorthanded or pay other employees overtime. That holding is not as seriously questioned as the reason the Court gave for that holding — that an undue burden is one requiring the employer to bear “more than a de minimis cost.” In the years since, the lower courts have generally — but not universally — adopted the EEOC’s position that things like being shorthanded or having to pay premium wages are hallmarks of an undue burden, while largely ignoring the “more than a de minimis cost” line. The US Department of Justice has taken the position that “[l]ower courts have sometimes been led astray by Hardison’s ‘de minimis‘ language, and the Court can and should clarify that the EEOC has correctly interpreted Hardison to be consistent with substantial protection for religious observance and practice” while otherwise leaving the precedent in tact. The Court has also accepted cert. on the question of whether an accommodation that “burdens the employee’s coworkers rather than the business itself” meets the Title VII requirement, and the AFL-CIO has an amicus brief that focuses on that question, arguing that “[t]he fact that a proposed accommodation would interfere with an agreed-upon method of ensuring seven-day-per week coverage and fairly allocating undesirable shifts among employees is relevant to whether the accommodation would burden the ‘conduct’ of the employer’s business, regardless of whether an employer can prove it would cause any determinate level of economic harm. That is particularly true when the arrangement is embodied in a collective bargaining agreement.”

The second argument is on a pair of consolidated cases concerning the False Claims Act and its requirement that the false claim was submitted “knowingly.” It’s not one I would ordinarily recommend to a casual observer, but if you’re going to the above argument in person, it definitely would be worth staying for. In United States ex rel. Schutte v. SuperValu Inc., (a note on the name: Schutte is the “relator” (pronounced re-lay-tor), bringing a qui tam action in place of the US; the relator gets a portion of the funds recovered if they prove the government was defrauded under the FCA) the issue is whether “SuperValu knowingly filed false reports of its pharmacies’ ‘usual and customary’ (‘U&C’) drug prices when it sought reimbursements under Medicare and Medicaid.” The Seventh Circuit found that the filings were false, but also that they were based on an “objectively reasonable understanding of the regulatory definition of U&C price.”

It also held that the FCA requires a level of intent to defraud. The dissent characterized the issue as “whether the Act can reach businesses that submit false claims for government payment but claim there is some legal ambiguity that kept them from ‘knowing’ for certain that their claims were false.” Sen. Chuck Grassley has an interesting amicus brief arguing that the Seventh Circuit’s test “puts on the government a nearly impossible burden to anticipate and warn off future fraudsters from every colorable misinterpretation of the law” and that “[i]f it is not set right, it will not be long before the centerpiece of the government’s anti-fraud arsenal becomes unusable.” The Court has accepted cert. on “[w]hether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the False Claims Act.”

Wednesday, April 19

The only argument today concerns what constitutes a “true threat” (rather than speech protected by the First Amendment) in the context of social media. In Counterman v. Colorado, Counterman began following musician C.W. on Facebook, was blocked when she found his posts “creepy” but kept following under new accounts, and ultimately sent her “messages [that] alluded to making ‘physical sightings’ of C.W. in public” (as found by the Colorado Supreme Court). He was prosecuted under a Colorado stalking statute that criminalizes repeatedly sending messages “that would cause a reasonable person to suffer serious emotional distress.” Colo. R.S. 18-3-602. The messages presumably are “speech” within the meaning of the First Amendment, so the question is whether it falls into a category of speech that may be criminalized consistent with those free speech protections; the Colorado Supreme Court held that this was a “true threat” and upheld the conviction. Courts are split on how to determine if something is a true threat. Some require a subjective intent to threaten, while others apply an “objective test” and ask only if a reasonable person would feel threatened in the “totality of the circumstances.” Some advocates suggest that an objective test is unworkable in the online context because those communications so frequently lack context to be able to objectively assess the totality of the circumstances.

The University of Miami Law Review has a useful backgrounder on all these legal issues. Notably, the ACLU argues that “a subjective intent requirement is critical to ensure breathing room for robust public debate,” while the Lawyers’ Committee for Civil Rights Under Law argues that “[r]equiring subjective intent to establish a true threat would vitiate anti-intimidation laws, especially voter intimidation laws.” Meanwhile, one group of “First Amendment Scholars” emphasizes that “Mr. Counterman was convicted for the crime of stalking, not threats” and therefore urges the Court to “affirm [the conviction] rather than announcing a rule that would require all communication-based stalking prosecutions to prove a ‘true threat, ‘” while another group of “First Amendment Scholars” including Erwin Chemerinsky argues that a “specific-intent requirement for stalking and other threats undermines, rather than protects, First Amendment values, including by depleting the marketplace of ideas, inhibiting counter-speech, and interfering with individual autonomy and association.” Those are just some of the 22 amici briefs filed in this case — it should be a really interesting argument (but expect it to run long!).

Wednesday, April 26

My final recommendation for a case to take in this term is the only one scheduled for the last day of the regular calendar this term, involving the takings clause in the context of foreclosures where the government keeps the surplus value beyond the back taxes that were owed. Tyler v. Hennepin County has so much interest that it already has its own Wikipedia page and has generated some 46 amici briefs! Briefly, as the 8th Circuit explained, “Tyler accumulated a tax debt of $15,000. To satisfy the debt, Hennepin County foreclosed on Tyler’s property and sold it for $40,000. The county retained the net proceeds from the sale.” The courts below all held that this was not an unconstitutional taking because the property was lawfully seized after reasonable notice and opportunities for Tyler to avoid that consequence; at that point, the entirety of the property was the government’s, and it was free to sell it for full value. At the point of sale, as the 8th Circuit held, “[w]here state law recognizes no property interest in surplus proceeds from a tax-foreclosure sale conducted after adequate notice to the owner, there is no unconstitutional taking.” Specifically in this case, Tyler “could have recovered the surplus by redeeming the property [paying back taxes prior to foreclosure] and selling the condominium, or by confessing judgment, arranging a payment plan for the taxes due, and then selling the property. Only after she declined to avail herself of these opportunities did ‘absolute title’ pass to the State.” Public Citizen has a useful amicus brief that walks through the taking clause analysis it believes should apply and argues that “[p]ermitting the government to take property to collect a tax debt without compensating the owner for the value exceeding the debt creates skewed incentives that disproportionately harm vulnerable people.”

Decision Days in May and June

The Court used to sit for decision days (mostly on Mondays) between the end of arguments and the end of June. The Court would take the bench and the author of the majority opinion would announce it (briefly summarize the holding), and sometimes a dissenter would also announce their dissenting opinion. All that was suspended during the pandemic, with the opinions simply posted to the website. But in January, they restarted the practice of announcing opinions from the bench. So hopefully there will be opportunities to be in the courtroom and hear decisions announced in May and June this year. We never know which opinions will be issued until it happens (except when we know it’s the last decision day on the calendar and there are just a few cases left!) but it can feel quite meaningful to be there for the announcement in a big case. You also typically don’t have to get in line nearly as early as for arguments. So something to consider if you’re in town in May and June (especially June, since there’s a trend of the most high-profile cases being decided last).

Wednesday, March 22 – Jack Daniel’s / Bad Spaniels

March 20, 2023case suggestions

My apologies that I have been too overwhelmed with other work to keep the blog updated for March cases. There was an important tribal sovereignty and water rights case argued this morning and a number of criminal cases this week and next, which I must leave to others to preview. (As always, Scotusblog does a great job of that.)

I was unlikely to recommend any of this block’s cases to the casual observer anyway — with the exception of Wednesday’s argument, which one really should not miss if only for a little comic relief (in the context of a serious intellectual property dispute)! Here’s a screenshot from the petitioner’s brief:

Jack Daniel’s Properties v. VIP Products LLC, is the only case being argued on March 22. Lots of fun to be had with this one, but also consider the serious arguments from EFF and a group of 1st Amendment professors, who are of course on the other side of trade groups. The New York Intellectual Property Law Association has an interesting brief “in support of neither party” focused on what the legal test should be when analyzing parody products.

February 20 & 21 — Online speech liability

February 16, 2023case suggestions

February arguments start off with two of the most high-profile cases this term, concerning liability of social media companies for the content posted on their platforms and their relationship it. (Preview of the following week’s arguments to be posted later.) Scotusblog has a useful introduction and context for this and tomorrow’s case.

70 minutes have been allotted for arguments on both days, but expect them to run quite long and for there to be a substantial line for public (and bar member) seating. (See the page about attending in-person or listening in online.)

Tuesday, Feb 21 — Gonzalez v. Google LLC

Today’s arguments will focus on the scope of the Section 230 immunity for corporations that host user content. The case was filed by family members of victims of terrorist acts, alleging, according to the 9th Circuit ruling, that “social media platforms allowed ISIS to post videos and other content to communicate the terrorist group’s message, to radicalize new recruits, and to generally further its mission. Plaintiffs also claim that Google placed paid advertisements in proximity to ISIS-created content and shared the resulting ad revenue with ISIS.” In the case against Google, which is being reviewed today, the lower courts held that Google was immune by operation of 47 U.S.C. § 230(c)(1), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

A great deal has been written about Section 230 generally and this case specifically, but I would like to call your attention to an amici brief from the Lawyers Committee for Civil Rights Under Law and other civil rights organizations, arguing, among other things, that “[w]hen a publisher materially contributes to a civil rights violation, it loses Section 230 immunity.” I also commend the EPIC amicus brief, which argues for distinguishing between liability for mere re-publishing and active acts of the platform:

Social media sites employ sophisticated algorithms that segment, target, and control users in often harmful ways. The allegations in this case—that Google matches ISIS content to users who are profiled to be most susceptible to the group’s messaging—represent one subset of these algorithmic harms. Many internet companies that deploy harmful products use Section 230 as a shield instead of making their products safer, exactly the opposite of what Section 230’s drafters in- tended. Other companies collect and publish people’s personal information without a care for the accuracy of the information or for individual privacy rights be- cause they believe Section 230 protects them. Unless Section 230 is returned to its original meaning and courts are given a clear way to apply immunity, inter- net companies will continue to act with impunity—to all our detriment.
https://www.supremecourt.gov/DocketPDF/21/21-1333/249376/20221207151042885_21-1333%20Electronic%20Privacy%20Information%20Center%20Amicus%20Brief%20in%20Support%20of%20Neither%20Party.pdf

Wednesday, Feb 22 – Twitter, Inc. v. Taamneh

The Ninth Circuit decision relevant yesterday also concerned a suit against Twitter, Twitter, Inc. v. Taamneh. But the lower court there did not dismiss the case based on a Section 230 defense but because it held that the allegations were not sufficient to give rise to liability under the Anti-Terrorism Act (ATA), 18 U.S.C. § 2333. The Ninth Circuit disagreed, carefully reviewing each of the liability factors and noting that the complaint alleges that the platform “allowed ISIS accounts and content to remain public even after receiving complaints about ISIS’s use of their platforms,” ultimately holding that “the Taamneh Plaintiffs adequately state a claim for aiding-and-abetting liability.”

And so today’s case concerns: “(1) Whether a defendant that provides generic, widely available services to all its numerous users and ‘regularly’ works to detect and prevent terrorists from using those services ‘knowingly’ provided substantial assistance under 18 U.S.C. § 2333 merely because it allegedly could have taken more ‘meaningful’ or ‘aggressive’ action to prevent such use; and (2) whether a defendant whose generic, widely available services were not used in connection with the specific ‘act of international terrorism’ that injured the plaintiff may be liable for aiding and abetting under Section 2333.”

January cases

January 3, 2023case suggestions

There are some interesting cases this month — involving attorney-client privilege, the status of national guard employees and union rights, another union issue, the Puerto Rico Financial Oversight and Management Board, and practical obstacles for enforcing the rights of students with disabilities — but in cases that have not received much public attention. So this might be a good month to attend arguments in person (although you can still listen in online live or later)!

Monday, January 9

Fans of unusual and amorphous legal structures and categories will enjoy today’s cases. We start with attorney-client privilege for communications that also (perhaps predominantly) cover subjects that are not privileged. In re Grand Jury, “Whether a communication involving both legal and non-legal advice is protected by attorney-client privilege when obtaining or providing legal advice was one of the significant purposes behind the communication.” See the useful summary and context from NAAG. The ABA also has an amicus brief celebrating the importance of the attorney-client privilege.

The next case gets more byzantine, involving technicians with the Ohio National Guard, who are “dual-status employees because their employment is ‘a hybrid, both of federal and state, and of civilian and military strains.'” Ohio Adjutant General’s Department v. Federal Labor Relations Authority (6th Cir. 2021), quoting Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1398 (D.C. Cir. 1988). Past cases have found that although National Guards are state agencies, their role is largely controlled by federal law and, therefore, certain guard employees have rights under the Federal Service Labor-Management Relations Statute, the guards are executive agencies for purposes of that law when acting as such employers, and the Federal Labor Relations Authority has jurisdiction. Nevertheless, when Ohio attempted to end the union contract, it objected to FLRA jurisdiction when the union filed a series of Unfair Labor Practice (ULP) charges. Hence the intriguing question presented (although it’s about national guards specifically): “Whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.” See the link above for the 6th Circuit’s decision, or for interesting historical (and other) arguments, see this amicus brief from military law scholars.

Tuesday, January 10

Continuing the trend of intriguing questions presented is Glacier Northwest, Inc. v. International Brotherhood of Teamsters: “Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer’s property in the course of a labor dispute.” Essentially, the union initiated a strike while concrete was in mixing trucks, which … caused some difficulties for management. The Washington State Supreme Court held, in part, that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.” A group of NYU and Yale tort law professors have sided with the union in their amicus brief.

(Just one case is scheduled for today)

Wednesday, January 11

Again just one case scheduled today, Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. The Board is refusing to produce financial records requested by a media organization (CPI), and argues that it is exempt from suit under the 11th Amendment and the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). The Court has granted cert. on a broad question: “Whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.” See the interesting and useful amicus brief from Reporters Committee for Freedom of the Press.

Monday, January 16 is Dr. King Day

Tuesday, January 17

An important but technical and procedurally complex immigration case is up first today, in Santos-Zacaria v. Garland. See the NAAG overview.

The second case involves Turkey and a major bank. After Halkbank was indicted for money laundering, it argued it was immune from prosecution under the Foreign Sovereign Immunity Act because the bank is majority-owned by Turkey. The Second Circuit held that the activity falls within the FSIA exception for commercial activity. The question is “Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.” Turkiye Halk Bankasi A.S. v. United States.

Wednesday, January 18

The case today is under the Individuals with Disabilities Education Act (IDEA). According to Ed Week, the case “involves Miguel Luna Perez, who is deaf and communicates through sign language. . . . His legal papers say that the district assigned a classroom aide to him who did not know sign language and who would sometimes abandon Perez for hours a day. Perez’s parents contend the district led them to believe their son was proceeding toward high school graduation, but they were informed that he only qualified for a certificate of completion.”

However, the arguments will focus on procedural issues, specifically the requirement to exhaust administrative remedies, as more fully explained by NAAG. An interesting amicus brief was filed by Sen. Tom Harkin and Cong. Tony Coelho and George Miller.

Oct 31 – Affirmative Action – lines and more

October 25, 2022case suggestions

One of the most anticipated arguments of the term is set for Monday, October 31, when the court will hear arguments in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. One question presented is the same in both cases: “whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions.” The Harvard case’s second question is “whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.” And the UNC case instead considers “whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.”

So much has been written about these cases that I won’t pile on. To get a strong sense of the legal (as opposed to the political) issues in this case, a great starting point would be the NAACP LDEF amicus brief. There’s also an interesting perspective offered by the APA. For a shorter overview, see the Lawyers’ Committee preview.

But here’s something I can add:

When should I get in line?

This is hard to answer because we are in a new era — this will be only the fifth day in the history of the Court that people could either attend in person or listen in live. Before Covid, public access to arguments hadn’t been suspended since 1918 (for the Spanish Flu), when teleconferencing hadn’t been invented.

I had students attend arguments (via the public line) in three of the first four such days earlier this month, so from that I can offer a few observations. The lines seem to have become much more reasonable than they were pre-pandemic, when it was not uncommon in major cases that the last person to get in for arguments started waiting in line in the morning of the day before. But the lines are still forming early and they could start forming even earlier!

Arriving by 5am was okay in the first two weeks, but I would get there at least a couple hours before that for the affirmative action cases. The Voting Rights Act arguments on October 4 may be the closest comparator in terms of public interest — my student who got in line at 4:45 made it, but only about ten people behind her got in. What you really don’t want is to get there at 4am and still not make it! Much better to get there as early as you can manage, and not be worried about that.

The first fifty people can be quite assured that they’ll get in (barring something extremely unusual). After that, it can depend on that day’s special arrangements and there is the option for a walk through for a few minutes (which is really unsatisfying!).

Also, 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. There certainly will be events on Monday! 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.

How long will the arguments be?

This has also changed. Pre-pandemic, it was extremely unusual for arguments to go much over the scheduled time. When telephone arguments required other adjustments to form, the arguments started running long — sometimes roughly twice the scheduled time. That trend of longer arguments seems to have continued now that they’re back in-person. It wouldn’t surprise me if the two affirmative action cases on October 31 go on for three hours or more. And I don’t believe they’ve made arrangements for bathroom breaks!

What about other arguments this week?

Tuesday, November 1 has two cases that will be of some interest and reasonably accessible for the casual observer:

Cruz v. Arizona : Whether the Arizona Supreme Court’s holding that Arizona Rule of Criminal Procedure 32.1 (g) precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Jones v. Hendrix: Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

I wouldn’t recommend a casual observer take in Wednesday’s arguments (a Bank Secrecy Act case).

There are some interesting cases coming up the following week, which I will address in a later post.

October 2022 Term

August 11, 2022case suggestions

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

Update on access: The public is welcome back into the courtroom to view arguments, but the Court will continue to offer online audio as well. For more information, see attending arguments (in person) or online access.

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

First Monday, October 3

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

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

Tuesday, October 4

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

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

Wednesday, October 5

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

Monday, October 10

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

Tuesday, October 11

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

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

Wednesday, October 12

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

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

Decision Days 2022

May 24, 2022case suggestions

Now that the Court has heard all cases scheduled for the October 2021 term, we can watch for decisions announced on Mondays (except May 30 for Memorial Day and June 20 for the observance of Juneteenth, when the Court will instead release decisions the next day) until the end of June, when the Court will go on recess until First Monday in October. This blog will go on recess after this post, until it’s time to preview the first arguments of the October 2022 term. But first, a quick rundown of decisions I’m anticipating.

Understandably, almost all the attention is on Dobbs v. Whole Women’s Health and whether the leaked opinion, and with how many alterations, will be the majority opinion when it is announced. I have nothing to add to that rampant speculation!

But we are also awaiting a decision in another major case that was argued a month before Dobbs. What I said about it before the November 3 argument:

a Second Amendment issue involving New York’s “proper cause requirement” for concealed-carry licenses. See an overview here. Lots of attention to this one — New York State Rifle & Pistol Association Inc. v. Bruen has 87 amicus briefs! I recommend reading the Second Circuit ruling and a couple of briefs, all available here. For people interested in international law, note the brief from Amnesty International. And it’s always worth reading a brief from the NAACP LDEF.

We are also awaiting decision in a major religion case argued December 8 (just one week after Dobbs):

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

Those are the major cases still outstanding from 2021 arguments. Order of argument is not a reliable indicator of order of decisions, although every October and November argument has been decided except New York State Rifle & Pistol, and most December and January cases have also been decided at this point. So going in that order, the next major decision to look out for is in West Virginia v. EPA, argued on February 28:

An important set of cases today concerning EPA’s authority, which has largely slipped under the mainstream radar. The Court has consolidated four cases against the EPA, brought by West Virginia, North Dakota, North American Coal Corp., and Westmoreland Mining Holdings.
Briefly, the issues began when Obama Administration enacted the Clean Power Plan, perhaps the country’s most ambitious effort to reduce carbon emissions. The regulations were immediately challenged as unconstitutional and beyond EPA’s authority. While the litigation was ongoing, the Trump Administration rescinded the plan and replaced it with the “Affordable Clean Energy” rule, but litigation continued. Then the Biden Administration has said it will not reinstate the Obama plan but rather will issue a new plan; it asked the Court to decline to hear this case and to instead address any challenges to the new rule after it is announced. However, the Court instead accepted cert. on “Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.”
This is an exceedingly important case but the legal issues will be hard to follow. Start with this thorough and readable summary. Then take a look at the DC Circuit ruling and one or more of the vast array of amici briefs that have been filed in this case.

And finally (although these decisions won’t necessarily be announced last) are the major cases from April’s arguments. Kennedy v. Bremerton School District involves a public school coach who prayed before games. And Biden v. Texas involves rescission of the Migrant Protection Protocols (aka “remain in Mexico”).

How to “watch”

Before the pandemic, the Justices would take the bench on decision days. The author of the majority opinion would announce the holding, and sometimes a dissenting Justice would make a statement as well. Sadly, that hasn’t returned; there is no live-stream of decision announcements like there was for arguments.

Instead, watch the Court’s website beginning at 10am Mondays (or the Tuesday after Memorial Day and the observed holiday for Juneteenth — and additional days if announced, as the Court often does in June). Decisions get posted on the front page, but if you’re actively watching for decisions, then it’s better to monitor this page. The decisions get posted 10 minutes apart and we don’t know in advance how many there will be. But when the “R number” column gets filled in on that page, you know they’re done for the day. (See the scotusblog blurb on “What is the significance of “R” numbers?” for the details on why this works as an unofficial sign.)

February (& March 1-2) cases

February 21, 2022case suggestions

This month’s oral arguments have not received the attention of some earlier abortion and other high-profile cases, but involve a range of interesting and important issues. The case involving the EPA’s climate change authority, especially, deserves careful attention.

Tuesday, February 22

The cases today are two variations on Native American sovereignty issues. (Not consolidated; separate one-hour arguments.)

First up is Ysleta del Sur Pueblo v. Texas, involving the tribe’s authority to conduct bingo and other gambling, notwithstanding Texas law. The Fifth Circuit described the dispute as centered on “which federal law governs the legality of the Pueblo’s gaming operations—the Restoration Act (which bars gaming that violates Texas law) or the more permissive Indian Gaming Regulatory Act (which ‘establish[es] … Federal standards for gaming on Indian lands’).” It held that because the “Restoration Act controls, the Pueblo’s gaming is prohibited.” But the Supreme Court’s characterization of the question presented is perhaps a bit revealing: “Whether the Ysleta del Sur Pueblo and Alabama-Coushatta Indian Tribes of Texas Restoration Act provides the Ysleta del Sur Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the act’s legislative history and the Supreme Court’s holding in California v. Cabazon Band of Mission Indians, or whether the U.S. Court of Appeals for the 5th Circuit’s decision affirming Ysleta del Sur Pueblo v. Texas (Ysleta I) correctly subjects the Pueblo to all Texas gaming regulations.”

The second case, Denezpi v. United States, involves tribal sovereignty in the context of criminal law, and specifically double jeopardy. The Court has long held (and recently reaffirmed) that the Constitution’s prohibition on double jeopardy does not restrict prosecutions by different “sovereigns” — so the federal government is free to prosecute a person for the same conduct that already resulted in a state conviction (or acquittal). Thus the importance of the status of tribal courts, and the question presented in this case: “Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.”

Both cases are nicely summarized here. There’s also an interesting amici brief on the criminal courts case from a group of “federal Indian law scholars and historians.”

Wednesday, February 23

An important administrative procedure case today, in the context of immigration law. Arizona v. City and County of San Francisco. Immigrants may be turned away, under the Immigration and Nationality Act, if they are likely to become a “public charge.” That term had long been understood to describe receipt of cash welfare benefits. The Trump Administration adopted a formal regulation that expanded “public charge” to include receipt of certain non-cash benefits, like Section 8 housing and SNAP benefits. Lawsuits challenged that rule, there were various provisional wins and losses for both sides at early stages of the litigation (the full history is set out here), but ultimately the Biden Administration came to power and announced that it would no longer defend the rule. It is not uncommon for new administrations to both decline to defend lawsuits and to embark on the process of formally rescinding or replacing regulations — which is a long and quite involved process. But in this case, according to the 9th Circuit:

the new administration didn’t just stop defending the prior administration’s rule and ask the courts to stay the legal challenges while it promulgated a new rule through the ordinary (and invariably time- and resource-consuming) process envisioned by the APA. Instead, together with the plaintiffs challenging the rule, it implemented a plan to instantly terminate the rule with extreme prejudice—ensuring not only that the rule was gone faster than toilet paper in a pandemic, but that it could effectively never, ever be resurrected, even by a future administration. All while avoiding the normal messy public participation generally required to change a federal rule. Not bad for a day’s work.
9th Cir.

Now, other states want to join the lawsuit to defend the Trump Administration rule. The Court has accepted cert. only on the question of “Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.”

This is the only case scheduled for today. Expect the arguments to run long.

Monday, February 28 — EPA climate change authority

An important set of cases today concerning EPA’s authority, which has largely slipped under the mainstream radar. The Court has consolidated four cases against the EPA, brought by West Virginia, North Dakota, North American Coal Corp., and Westmoreland Mining Holdings.

Briefly, the issues began when Obama Administration enacted the Clean Power Plan, perhaps the country’s most ambitious effort to reduce carbon emissions. The regulations were immediately challenged as unconstitutional and beyond EPA’s authority. While the litigation was ongoing, the Trump Administration rescinded the plan and replaced it with the “Affordable Clean Energy” rule, but litigation continued. Then the Biden Administration has said it will not reinstate the Obama plan but rather will issue a new plan; it asked the Court to decline to hear this case and to instead address any challenges to the new rule after if is announced. However, the Court instead accepted cert. on “Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.”

This is an exceedingly important case but the legal issues will be hard to follow. Start with this thorough and readable summary. Then take a look at the DC Circuit ruling and one or more of the vast array of amici briefs that have been filed in this case.

Tuesday, March 1

First up is a pair of consolidated cases (one hour total), Ruan v. United States and Kahn v. United States, involving the Controlled Substances Act and “pain management” practices. Doctors in both cases were convicted of prescribing opiates and other drugs in violation of the CSA (and sometimes for personal gain), but they assert the drugs were prescribed in a good faith belief that the prescriptions were appropriate. More here. Not the most sympathetic defendants, at least as described in the 11th Circuit decision, but some conservative and libertarian groups (e.g. Cato’s amicus brief) are lining up with others to defend the idea of a good faith defense.

The second case today, Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, is a complex case involving “the scope of the Medicare Secondary Payer Act (MSPA) as it relates to the treatment of patients with end-stage renal disease (ESRD).” The arguments won’t be easy to follow, so see the explanation here.

Wednesday, March 2 — Scope of Bivens

Scotusblog offers a useful intro to the case today, Egbert v. Boule:

Fifty years ago, in Bivens v. Six Unknown Federal Narcotics Agents, the Supreme Court ruled that a private individual could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages. In the nine years after Bivens, the court recognized Bivens claims for damages for violations of the Fifth and Eighth Amendments, but in 2017 it stressed that “expanding the Bivens remedy is now a disfavored activity.”
On Friday, the justices agreed to decide whether a Bivens remedy should be available to the owner of an inn on the U.S.-Canada border who alleges that a U.S. Border Patrol agent violated both his Fourth Amendment rights and his First Amendment rights. But the justices declined a request to reconsider Bivensitself.
Scotusblog

According to the 9th Circuit decision, Mr. Boule “operates and lives in a bed and breakfast in the state of Washington, on land which touches the United States-Canada border. Plaintiff alleged that a border patrol agent entered the driveway of plaintiff’s property to question arriving guests; used excessive force against plaintiff, and then, in response to plaintiff’s complaints, retaliated against plaintiff by, among other things, contacting the Internal Revenue Service, asking the agency to look into plaintiff’s tax status.”

It should be a very interesting argument. Take a look at the range of amicus briefs filed in this case — it’s not often we see the Reporters Committee for Freedom of the Press and CAIR on the same side as libertarian groups like Institute for Justice and FIRE.