gerrymandering – Prof. Zachary Wolfe, Esq.

October 2025 cases

August 29, 2025August 29, 2025case suggestionsLeave a Comment

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

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

First Monday, October 6

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

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

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

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

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

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

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

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

Tuesday, October 7

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

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

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

Wednesday, October 8

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

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

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

Tuesday, October 14

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

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

Wednesday, October 15 — Voting Rights & Searches

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

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

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

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

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.

April cases — last of 17-18 term

April 18, 2018case suggestions

April 25 is the last day of oral argument this term — when they will take up the “Muslim travel ban” (after sentencing guidelines and Congressional redistricting cases earlier in the week). After that, the Court will sit each Monday until the end of June in order to announce its decisions in cases argued this term, then will go on summer recess until First Monday in October.

Monday, April 23

The morning cases are rather technical and not recommended for the casual observer, but there is an unusual afternoon argument today that may be of interest. Chavez-Meza v. United States involves the ongoing confusion regarding sentencing guidelines. This time, the issue is how thoroughly the judge must explain a sentencing reduction on the record. Scotusblog has a useful preview.

Afternoon arguments are rare and it’s hard to predict how difficult it will be to get in. Arguments begin at 1:00; morning arguments are 10:00-noon, then there’s a lunch break during which the courtroom is cleared. Often, it’s been enough to get in line by 11:00.

Tuesday, April 24

Redistricting is before the Court yet again this morning — the third time this term alone. Abbott v. Perez involves protracted litigation over claims that Texas violated the Voting Rights Act when it redrew Congressional districts in 2011. The history of the various lawsuits and interim rulings is critical to understanding this case and being able to follow the arguments, so review the overview from Brennan Center and follow at least some of those links for key documents in the case (the links near the bottom, and particularly the NAACP LDEF amicus brief, will be especially helpful).

The case has been scheduled for 70 minutes, which is slightly more time than usual. There will be 4 arguing counsel (2 on each side) and 35 minutes total for each side.

The second case today, Animal Science Products v. Hebei Welcome Pharmaceutical Co., is an antitrust case that raises the question of to what extent US courts should defer to foreign courts’ interpretations of foreign law. See the overview here.

Wednesday, April 25 — the “Muslim Travel Ban”

The Court’s last scheduled argument of the term is Trump v. Hawaii — perhaps the most politicized case in years, as well as one that raises some interesting unanswered academic legal questions. Obviously, a great deal has been said and written about this case, but below I suggest some specific reading that should help you to follow the legal arguments before the Court.

A general overview will obviously help, but I also suggest some more reading on each of the official “questions presented,” as specified in the grant of cert.:

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;
[This involves the “political question” or “plenary-power” doctrine and the question of whether certain matters are entrusted by the Constitution to the executive branch alone. See the argument here.]

(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;
[This question is essentially one of administrative law and statutory interpretation. The decision below will give a good sense of the argument that the president lacked that authority.]

(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad;
[This is a difficult and unresolved legal question — just what is the scope of authority of a district court, for a single region and with specific plaintiffs before it, when the issue in the case is one of national policy with unspecified individuals who may be subject to it? See the discussion here.]

(4) whether the proclamation violates the establishment clause of the Constitution.
[Here, the Court will take up the argument that the order reflects unconstitutional discrimination on the basis of religion. See this amicus brief from a collection of civil rights organizations arguing that the order should be seen as an act of religious discrimination.]

There are also an extraordinary number of amicus briefs filed in this case, and you may wish to see if any are from organizations you would like to hear from.

Expect the arguments to run long. So far, the Court has not ordered additional time (although it denied the Becket Fund for Religious Liberty’s request to participate in oral arguments), but it is the only case on the docket today.

People will begin lining up to see the arguments very early, and I wouldn’t be surprised if no one gets in from the public line who wasn’t in line (or paying a line-stander) for at least 24 hours. Even if that’s not possible for you, there will be much to see and do on the sidewalk in front of the Court — multiple and competing demonstrations before and during arguments, followed by press conferences as soon as the arguing lawyers leave the building.

March cases

March 6, 2018case suggestions

In the last two weeks of March, the Court will hear an extremely important case involving First Amendment claims in the abortion context, another gerrymandering case, and other cases.

Tuesday, March 20

[Monday’s cases involve technical issues of limited interest or accessibility for the casual observer.]

Abortion is before the Court today, and this always draws a large line for the arguments and a spirited set of crowds out front. National Institute of Family and Life Advocates v. Becerra involves the California Reproductive FACT Act, which, briefly, requires licensed medical clinics to post information regarding free and low-cost abortion services available through the state and requires pregnancy counseling services that are not licensed medical centers to state in all advertising that they are not healthcare providers. The clinics claim this is a form of compelled speech that violates the First Amendment. California asserts that this falls within the scope of constitutionally permissible regulation of professional services, and is needed to inform women of available services and to prevent women from being confused as to the nature of the “clinic.”

Interestingly, in a number of states, the mandated speech goes the other way, requiring abortion clinics to post information designed to dissuade women from choosing to abort. There’s an interesting article in Slate exploring the problems that could arise for such laws if the clinics were to win this case. Scotusblog also offers a symposium of competing views. And, of course, there are a huge number of amici briefs.

The Solicitor General submitted an amicus brief supporting neither side. It then sought (and was granted) leave to participate in oral arguments, and both sides agreed to give up 5 minutes each. Very unusual!

The case is scheduled for the usual hour, but it is the only case on the docket today and will probably run a little long. Lines will form early–probably days early… But there will also be protests and press conferences happening out front, which are interesting to observe or join.

Wednesday, March 21

Upper Skagit Indian Tribe v. Lundgren is a technical issue of state court jurisdiction and tribal sovereignty. Briefly, both the Lundgrens and the tribe assert ownership over a strip of land. The Lundgrens brought suit to “quiet title” (have a court decide who has ownership) and the tribe asserted the state court had no jurisdiction over the dispute.

These arguments will be difficult to follow, but it is worth reading up on the case and attending if these issues interest you. A key concept is “in rem” jurisdiction — not jurisdiction over the party, but over a thing (in this case, not the tribe but a piece of land). Start with the overview here, then read the Washington Supreme Court decision, and then select some briefs to read as well.

Wednesday, March 28

[Monday’s and Tuesday’s cases are not recommended. However, Tuesday’s cases involve sentencing guidelines (Hughes and Koons); specific and technical issues regarding them, but still may be of interest to some.]

Partisan gerrymandering is once again before the court this morning. Benisek v. Lamone has been before the Supreme Court before; in 2015, the plaintiff won the right to a 3-judge panel, and now, the decision of that panel is up for review. The case involves the Maryland 6th, which had been a “safe” Republican seat until redistricting rendered it a “likely” Democratic seat. (Oyez overview; Common Cause fact sheet.) In addition to the links above, read at least a couple of the many briefs filed in the case before attending.

October 2017

August 10, 2017case suggestions

The new Supreme Court term begins with some very significant cases, including Trump’s Muslim travel ban and a profoundly important case involving partisan gerrymandering. I highlight some significant October cases below, and will add cases to be argued in future months as those schedules become available. (The Court does not schedule oral argument when it grants cert., but rather waits until written briefing is complete.)

One of the cases receiving a lot of national attention, Masterpiece Cakeshop (involving discrimination, in violation of state law, by refusing to prepare a cake for a same-sex marriage), is not likely to be heard until 2018. The Cakeshop’s brief is due on August 31, with the Colorado Civil Rights Commission’s brief coming October 23, followed finally by the company’s reply brief on November 22. So I would expect oral arguments in January or February, although it could be as early as December.

“First Monday,” October 2

The 2017 term opens with the issue of mandatory arbitration clauses. The Court has taken on a number of arbitration disputes in recent years, typically finding that the Federal Arbitration Act requires state courts to enforce these provisions against a variety of legal challenges. In these three consolidated cases (one hour total, for NLRB v. Murphy Oil, Ernst & Young v. Morris, and Epic Systems v. Lewis), the issue is whether arbitration clauses are enforceable when they infringe on rights protected under the National Labor Relations Act. Most of the briefing in these cases was completed before the 2017 Presidential Election, so there is an odd set of conflicting positions in briefs filed by the NLRB initially and by the Solicitor General after Trump took office.

The Court will also re-hear argument in the first of two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Sessions v. Dimaya, involves the vagueness of the terms “aggravated felony” and “crime of violence.” Dimaya was ordered removed from the US on the basis of two burglaries of unoccupied homes–no violence was involved, but it’s the kind of crime that can involve violence.

Tuesday, October 3

The first case today takes on the important but vexing issue of partisan gerrymandering, and deserves to be one of the most-watched cases of the term. In Gill v. Whitford, there does not seem to be any dispute that the Wisconsin legislature engaged in “packing” and “cracking” to concentrate Democratic votes in as few districts as possible and ensure they were small minorities in all other districts. The issue is whether this is the sort of political practice that is unconstitutional, and whether the courts can craft a set of criteria that allow for legal challenge without exceeding the judiciary’s role. A good summary is here, with a set of thoughtful positions collected here.

The second case today is the second of the two immigration law cases it heard last year but did not decide, presumably because it was split 4-4. This one, Jennings v. Rodriguez, involves a detained immigrant’s right to post bond for pre-hearing release.

Wednesday, October 4

This is a criminal law day, with both cases coming out of Washington, DC. The first involves probable cause and qualified immunity. Under DC law, the crime of unlawful entry (trespassing) requires that the person knew or should have known that the entry is unlawful. In DC v Wesby, MPD officers responded to complaints about a loud party and arrested the partiers for unlawful entry even though they said they had permission from a person who was leasing the house. Police spoke with that person, who confirmed, but then called the owner, who said the lease had not begun yet. Lower courts held that there was not probable cause to believe that the partiers knew they did not have the owner’s permission. They also held that the police should have known that an arrest under these circumstances would violate the 4th Amendment, so were not entitled to qualified immunity. The Court has accepted review of both questions.

The second case, Class v. US, is a criminal procedure case in the context of gun laws. Mr. Class brought three guns from his home in North Carolina to Washington, DC, leaving the guns inside his car when he went to tour the US Capitol. He says he did not realize the parking lot was on Capitol grounds, where firearms are prohibited. A Capitol Police officer noticed something suspicious in the car, and Class was arrested upon returning to the car. He raised various Second Amendment and due process claims, but ultimately pled guilty after the trial court rejected those constitutional claims. He then appealed, but the appellate court held the guilty plea waived his right to appeal. The Court has granted cert on the question “Does a guilty plea inherently waive a defendant’s right to challenge the constitutionality of his conviction?” This case also had briefs filed by both the Obama and Trump administrations, although both sided against Mr. Class (first arguing that the Court should not grant review, and then arguing that it should reject his arguments).

(the Court does not hear cases on Monday, which is Columbus Day)

Tuesday, October 10

This will be one of the most highly watched arguments of the year–the “Muslim travel ban” cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii. I don’t have anything to add to the extensive commentary on these cases…. Scotusblog has a useful introduction and then a series of thoughtful articles from a variety of perspectives. It is also worth reviewing a few of the amici briefs that have been filed in this case (especially those by the “Former National Security Officials” and the “Constitutional Law Scholars”).

The other case this morning, Hamer v. Neighborhood Housing Services, is a technical issue of appellate procedure.

Wednesday, October 11

The first case scheduled for this morning involves court jurisdiction for Clean Water Act cases, under the “Obama Water Rule.” I say scheduled because Trump has said he will rescind the rule, so the case may become moot and get removed from the docket.

The second case involves corporate liability under the Alien Tort Claims Act. The ATCA has received a lot of attention from the Supreme Court in recent years, after almost no attention for centuries (it was enacted by the first Congress, in 1789). Jesner v. Arab Bank is brought by victims of attacks in the West Bank and Gaza now living in the US, who claim that US branches of the bank were involved in laundering funds for Hamas. The Court has accept cert. on the question of whether corporations can be sued under the ATCA. Scotusblog has some good background.