December 2023 arguments

November 28, 2023case suggestions

There were other arguments in the last week of November, but I want to call attention to two cases on December 5 & 6.

Tuesday, December 5

Moore v. US is an important case questioning the constitutionality of the Mandatory Repatriation Tax enacted as part of the 2017 “Tax Cuts and Jobs Act,” which required certain taxpayers to pay a one-time tax on offshore corporate profits. The 16th Amendment only authorizes “taxes on income,” so controversy is over whether this is a tax on “unrealized” gains that violates the provision in Article I that “direct taxes” must be “apportioned among the several States” (in proportion to their populations). There is an argument that these are in fact realized corporate income, but in any event the 9th Circuit held “that realization of income is not a constitutional requirement.” Scotusblog has a useful explainer and NYU Law has an overview and guide to briefs. The case is also receiving considerable attention because of the possible implications on the constitutionality of a wealth tax (if one were ever passed).

Wednesday, December 6

The last argument of the calendar year is a Title VII employment discrimination case, questioning what types of actions can give rise to a lawsuit. The statute makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against” an employee because of a protected characteristic (race, sex, etc.). 42 U.S.C. § 2000e-2. But courts have often held that proving such discrimination requires the employee to point to an “adverse employment action,” often described as a “tangible change in working conditions that produces a material employment disadvantage.” In this case, a female police officer was transferred from the Intelligence Division to a patrol position, allegedly in order to hire a man. The Court has accepted cert. on “Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.”

Oct 30/31 & early November cases

October 26, 2023case suggestions

The next block of arguments include cases on asset forfeiture, First Amendment requirements for social media accounts of government officials, the ability to trademark “Trump Too Small,” and whether the Second Amendment allows the government to prohibit possession of firearms by persons subject to domestic-violence restraining orders.

Monday, October 30

Today is an asset forfeiture case and specifically a question of procedural due process. In Culley v. Marshall, Culley’s son was driving her car when police caught him with drugs and drug paraphernalia and seized the car. Twenty months later, the court ordered the car returned to Cully pursuant to Alabama’s “innocent-owner defense.” (Facts summarized on Oyez.) She later sued, alleging that the delay constituted a due process violation. Both lower courts ruled against her and the Court has accepted review on “What test must a district court apply when determining whether and when a post-deprivation hearing is required under the Due Process Clause?” Asset forfeiture is a subject of intense public attention from time to time, but with many outstanding issues. The list of amici supporting Culley (light green on this link) make for some unusual bedfellows!

Just one case today.

Tuesday, October 31

Halloween has a pair of cases on First Amendment issues involving social media accounts and whether public officials can block constituents from posting comments. Lindke v. Freed involves a city manager who was sued for blocking someone who had left comments on his personal Facebook account (relating to his handling of COVID issues). He won at the 6th Circuit, which held that the First Amendment did not apply where the Facebook page was not part of Lindke’s official duties. O’Connor-Ratcliff v. Garnier involves two school board members who created Facebook and Twitter accounts for their campaigns and later updated them with their elected titles and used the pages to communicate about school district business. This time, the 9th Circuit found that these pages were subject to the First Amendment and the board members had violated the rights of residents they blocked. Amy Howe has a useful overview of the legal issues. Also, it’s notable that Netchoice has filed an amicus brief; this is the organization challenging Texas and Florida laws regulating social media companies (on which the Court recently granted cert. – more later!)

Expect argument in these cases to run long; I’m guessing at least 3 hours, maybe 4. The cases have not been consolidated for oral argument (the only two-argument day this block), plus the Solicitor General is participating in both cases. After the time is up for each arguing counsel, the Justices now each get an additional round of questioning (in order of seniority), which makes for a significant amount of time after the “argument clock” has expired. And today, that will be times 6 arguing counsel (petitioner, respondent, and Solicitor General, times two cases).

Wednesday, November 1

Does the First Amendment require the government to register a trademark of “Trump Too Small”? The law prohibits the Patent and Trademark Office from registering a mark containing a living person’s name without that person’s consent. 15 U.S.C. § 1052(c). But the Federal Circuit held that the First Amendment did not allow enforcement of that bar under these specific circumstances. There may be a substantial governmental interest in protecting private parties from having others trademark their names in most circumstances, but not when it is a criticism of a public official: “As a result of the President’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-President’s approach to governance, the government has no interest in disadvantaging Elster’s speech.” Interestingly, Public Citizen filed an amicus brief opposing registration, explaining that “registration would allow him to seek to prevent other members of the public from promoting their shared political antagonism using the same or similar words on shirts offered for sale.”

This is the only case set for argument today.

Monday, November 6

Today is an unusual issue of sovereign immunity under the Fair Credit Reporting Act. In Department of Agriculture Rural Development Rural Housing Service v. Kirtz, Kirtz sued the USDA for damaging his credit when it reported his account past-due even though it was paid off. In most cases, the federal government is immune from suit unless Congress has “unequivocally and unambiguously” waived immunity. The Fair Credit Reporting Act governs “persons” that it defines to include any “government or governmental subdivision or agency.” 15 U.S.C. § 1681a. The Third Circuit held that this was enough; “FCRA’s plain text clearly and unambiguously authorizes suits for civil damages against the federal government.” In so holding, the court acknowledged that “the [other] Courts of Appeals to have considered this issue are split down the middle.”

Tuesday, November 7

An extremely important Second Amendment case today: “Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” The Fifth Circuit noted that “Rahimi was involved in five shootings in and around Arlington” in just two months, but nevertheless held that the law cannot survive the new standard announced in Bruen last year, that the law must be “consistent with the Nation’s historical tradition of firearm regulation.” This is obviously a very contentious issue and much has been written so I won’t add more except to recommend Amy Howe’s explainer and call attention to the perspective of March For Our Lives in its amicus brief.

I would expect long and early lines for this argument. See my lines info post.

Wednesday, November 8

The final case in this block of arguments, as Oyez explains, “involves the interpretation of education benefits under two different programs for veterans.” It is quite technical and fact-specific, so see their explainer for more.

The next block of arguments starts November 27.

Lines and argument info

October 2, 2023case suggestions

I went for oral arguments this morning and thought a few practical notes might be helpful:

The 30th person in the public line got there at 6:40am. This was as far back as I liked to be when I was in the public line. Being back as far as 50th is probably okay, but you’ll be worried all morning as you see groups with special reserved seating arriving and taking up seats! Plus, the 50th person got there around 7:15 — so it’s a critical half-hour, and well worth the earlier wake-up. I wasn’t able to gage exactly how many people got in, but someone else was looking for a friend who was number 50–something and determined that they did not make it into the courtroom.
This was First Monday, which used to draw a crowd. However, note that the case was an interesting issue but not terribly high-profile and did not bring out large organized groups.
So I still would recommend aiming for 5am for most cases and 3am or earlier for very high-profile cases (like the gerrymandering case on Oct 11). [Edit: this prediction was spot on! The last people admitted from the public line for the Oct 11 gerrymandering case got in line at 3am, and the line began forming at midnight.] People near the front of the line today got there at 4:45am, so you won’t be alone!
Arguments lasted until about 11:45 — even though there was only one case, and it was not one I would expect to be among the longer arguments. And this after they started promptly at 10:05 despite a couple of groups being sworn in. (At least one person left to use the restroom and was allowed to return.)
For Supreme Court bar members: the bar section was not even close to being full. They did not even bring us inside until after 8am.

First Monday and October 2023 cases

August 13, 2023case suggestions

The new Supreme Court term begins on the “First Monday” in October. This year it has a slower than usual start, with only one case set for argument on four of the first five argument days (and there’s usually six argument days in each month’s two-week block, but the second Monday is a holiday). But it will take up interpretation of the First Step Act, the constitutionality of the CFPB, ADA testers, whistleblower protections, insurance regulation, and — in one of the more high-profile cases — how to distinguish partisan gerrymandering from racial gerrymandering. See the other pages for tips on attending in-person or listening online.

Monday, October 2

Pulsifer v. US is focused on the First Step Act and the meaning of “and.” This was a bipartisan criminal justice reform law enacted in 2018. As relevant here, the Act instructs judges to disregard the mandatory minimum sentence under certain drug laws if the defendant satisfies various criteria. One of those criteria is that “the defendant does not have- (A) more than 4 criminal history points, . . . as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.” An offense is assigned “points” based on severity of sentence: 3 points for 13 months or more, 2 points for less than that but more than 60 days, and 1 point for anything else.

The defendant does have both A and B, but argues that “and” means that he is eligible unless he fails on all three criteria. On the other hand, the government argues, and the 8th Circuit held, that “and” should be read severally — “a defendant is eligible for safety-valve relief if he does not have (A), does not have (B), and does not have (C).” That’s from the NAAG‘s useful explainer.

One principle in support of the government’s and 8th Circuit’s reasoning is the “presumption against surplusage,” which cautions that courts should not interpret laws in a way that renders some parts of them meaningless. In this instance, failing both B and C necessarily means failing A, so there would have been no reason to include A in the statute unless the intent was to render a defendant ineligible if they fail to meet any (not all) of the criteria.

But there are other “canons of statutory construction,” including the “presumption of consistent usage” (“and” doesn’t mean “or” elsewhere in this Act) and the “rule of lenity” (ambiguity in criminal laws should be resolved to favor the defendant). Interestingly, the conservative/libertarian Americans for Prosperity has filed an amicus brief in support of the defendant.

This is the only argument scheduled for today.

Tuesday, October 3

Consumer Financial Protection Bureau v. Community Financial Services Association of America is an important case concerning the constitutionality of the funding structure for the CFPB. As Amy Howe explains, CFBP uses a:
unique funding scheme, which operates outside the normal congressional appropriations process. Instead of receiving money allocated to it each year by Congress, the CFPB receives funding directly from the Federal Reserve, which collects fees from member banks. And that scheme, the court of appeals concluded, violates the Constitution’s appropriations clause, which directs that ‘[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.’ The appropriations clause, the court of appeals explained, ‘ensures Congress’s exclusive power over the federal purse,’ which is in turn essential to ensure that other branches of government don’t overstep their authority.

The case has drawn a lot of attention and competing amicus briefs, along the lines you would expect. (The dispute started with payday lenders challenging a rule that barred them from making a third effort to withdraw funds from consumer accounts with insufficient funds, which produces high fees for those consumers.) But for an interesting perspective, see the amicus brief from the Lawyers’ Committee for Civil Rights Under Law, which explains how “lenders colluded with state actors to discriminate against people of color” and argues that “CFPB’s funding structure is consistent with the Appropriations Clause” and “originates from a decision by Congress to continue long-standing funding practices that enabled its predecessor federal agencies to address the safety and fairness of financial products.”

Again, this is the only case set for argument today.

Wednesday, October 4

Acheson Hotels, LLC v. Laufer is about the Americans with Disabilities Act, and specifically whether “testers” have standing. But there is also a layer of intrigue regarding the attorney for Laufer at an earlier stage in the proceeding, whose license to practice law was suspended.

There is a long tradition of “testers” in civil rights enforcement. For example, people of varying races might apply for loans from the same bank to document differences in treatment, without any intent by any of them to take out a loan if offered. This case is a bit different from that typical sort of “tester.” According to her affidavit, Laufer has MS, is visually impaired, and uses a wheelchair. After experiencing frustrations in finding accessible hotel rooms, she became involved with lawyers, forwarding them information whenever she found a hotel website that lacked sufficient information and sometimes serving as an “ADA plaintiff.”

The First Circuit’s opinion nicely sums up the issue and their holding:
Certain regulations under the Americans with Disabilities Act (“ADA”) require places of public lodging to make information about the hotel’s accessibility available on any reservation portal to those with disabilities. In the age of websites, that means a disabled person can comb the web looking for non-compliant websites, even if she has no plans whatsoever to actually book a room at the hotel. Thus, the information could be viewed as irrelevant to her — except to whether the website is complying with the law. Has she suffered a concrete and particularized injury in fact to have standing to sue in federal court? Contrary to the district court’s thinking, we think the answer is yes. We further conclude that Laufer has standing to pursue injunctive relief and that the case is not moot.

This furthered a “circuit split.” The 11th Circuit appears to agree with the above, while the 2nd, 5th, and 10th have said there is no standing. The question presented for the Court is:
Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.

This is the only case set for argument today. The US has asked to participate in arguments (that motion was filed just a few days before this post but will almost certainly be granted), so expect the session to run even longer than usual.

The Court is closed on Monday, October 9 for Columbus/Indigenous Peoples Day.

Tuesday, October 10

The first two-argument day of the term.

First up is Murray v. UBS Securities, LLC, which is about the burden of proof in a whistleblower case brought under the Sarbanes Oxley Act (securities fraud).

Murray was a strategist at UBS. Part of his job included preparing reports that SEC regulations required to be independent and reflective of his own views. He complained to his supervisors repeatedly that he felt pressured to alter his reports, and then was fired. He then filed suit under the Sarbanes Oxley Act’s whistleblower protection provision, which prohibits publicly traded companies from “discriminat[ing] against an employee … because of” any lawful whistleblowing act. 18 U.S.C. § 1514A(a).

Murray prevailed at trial after the jury was instructed that Murray needed to prove 4 things: he engaged in protected activity, the employer knew that, he was fired, and — crucially — “that plaintiff’s protected activity was a contributing factor in the termination of his employment.”

The Second Circuit held that was not enough, and that the jury should also have been instructed that Murray needed to prove that UBS acted with “retaliatory intent—i.e. , an intent to ‘discriminate against an employee … because of’ lawful whistleblowing activity.” This is a split with two other Circuits (5th and 9th), which held that a plaintiff need only prove that the protected activity was a contributing factor in the decision to terminate.

The Court has accepted a “question presented” that puts this more as a matter of civil procedure — who must prove what and when:
Whether, following the burden-shifting framework that governs cases under the Sarbanes-Oxley Act of 2002, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or whether the lack of “retaliatory intent” is part of the affirmative defense on which the employer bears the burden of proof.

Public Citizen has a useful amicus brief that relies heavily on the burden-shifting framework that Congress specified for filling such cases with the Department of Labor. Under 49 U.S.C. § 42121(b)(2)(B), the complaint must show that the protected activity “was a contributing factor in the unfavorable personnel action,” but the investigation can then be stopped if “the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”

Today’s second case, Great Lakes Insurance SE v. Raiders Retreat Realty Co., is rather esoteric:
Whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced

In contract law in general (not just under admiralty law), the parties’ contractual agreement can be set aside by a court as void as against public policy. In this case, the insurance company brought suit in Pennsylvania (where the policy had been issued), seeking a declaration that it did not have to pay for damages when a yacht ran aground because its fire-extinguishing system had not been properly inspected as the owners had claimed when they took out the policy, rendering the policy void ab initio even though the damages had nothing to do with fire. The owners counter-sued, advancing claims under Pennsylvania consumer protection laws for insurance bad faith. If the contract’s choice-of-law provision is enforceable, New York law applies to the entire dispute so those counter-claims based on Pennsylvania law would have to be dismissed. But if Pennsylvania has a strong public policy interest in seeing its laws against insurance bad faith enforced, does that mean the choice-of-law agreement is unenforceable? So although an admiralty case is not normally one I’d recommend to a casual observer, this could be an interesting argument.

Wednesday, October 11 — Gerrymandering

This is an extraordinarily important case asking whether a gerrymandered election district is based on race or politics. In 2019 in Rucho v. Common Cause, the Supreme Court held that federal courts cannot concern themselves with partisan gerrymandering. Of course, racial gerrymandering remains unlawful under the Voting Rights Act and the 14th and 15th Amendments.

In this case, South Carolina claims that the Republican-controlled legislature re-drew congressional districts to “create a stronger Republican tilt” in a district. The map they drew moved tens of thousands of Black voters out of a district, and a 3-judge panel found that “race was the predominant factor motivating the General Assembly’s adoption of Congressional District No. 1.” Before the Supreme Court, South Carolina argues that the lower court’s decision “rested on nothing but the correlation between race and politics” and cautions that “courts could always purport to infer racial predominance or a racial target from lines that correlate with both race and politics—and thereby insert themselves into political disputes under the guise of enforcing the Constitution’s prohibition on racial gerrymandering.”

The case has received a great deal of attention, so I won’t write more. In addition to the panel’s ruling above, I’ll direct you to an interesting Politico story that includes a piece about Rep. Clyburn’s possible role. And I strongly recommend reviewing the NAACP’s brief before taking in the argument.

Decision days lines (and more)

June 27, 2023case suggestions

I went to the Court today to hear the announcement of decisions, so I can offer some information for people considering attending the final sessions of the term.

The public section did look full (around 50 people) just before the session opened, but there was no need to wait in line from early hours. I spoke with someone who had number 35, and he got in line at 8:00 that morning. For members of the Supreme Court Bar: I was one of no more than a dozen people in that section, plus members of the Solicitor General’s office. (So I really did not need to get there at 7:30, as I did….) They let us into the building about 8:30 and handed out cards for the courtroom at 9:00. I believe the public line got into the building just before 9:00, although they had just started handing out numbered cards for the public line when I got there at 7:30.

Presumably the crowds will be larger and will line up earlier for the final day(s). Thursday, June 29 is already on the calendar. The Chief Justice announced that today from the bench but did not say anything like “when all remaining decisions will be released” (I forget the exact traditional language, but there at least used to be something like that). So if that’s still the tradition, they’re not yet promising to be done on Thursday. But note that we get to “7” remaining cases by counting the two cases each on affirmative action and student loan forgiveness — so really 5 major issues to be resolved. They could do that in one day. I plan to be there on Thursday.

The remaining cases are:

The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolinaand Students for Fair Admissions v. President and Fellows of Harvard
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
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.
And one I hadn’t been highlighting: Abitron Austria GmbH v. Hetronic International, Inc., involving extraterritorial application of trademark law.

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.”