November 8-10 arguments

More interesting cases in the second week of November, involving state secrets, Puerto Rico residents’ entitlement to SSI, religious freedom claims in the context of the death penalty, and commercial advertising and the First Amendment.

Monday, Nov 8

First up is a “state secrets” case, FBI v. Fazaga. The case concerns “Operation Flex,” which recruited a fitness instructor to infiltrate a mosque. Several Muslims who were targeted filed various discrimination claims against the FBI. The FBI declined to disclose some information in the course of the litigation, asserting that doing so would harm national security (the “state secrets privilege”). In an interesting ruling, the 9th Circuit held that Foreign Intelligence Surveillance Act provisions allowing for in camera (judge-only) review meant that Congress had effected a limited waiver of this privilege and the judge could consider the evidence. Harvard Law Review has a very useful and accessible review of the law and details of this case.

[Today’s second case, Unicolors, Inc v. H&M Hennes & Mauritz, LP, involves Copyright Office procedures and isn’t recommended for the casual observer.]

Tuesday, Nov 9

A really interesting case involving Puerto Rico and equal protection claims, US v. Vaello-Madero. SSI disability payments are available to residents of the 50 states, DC, the Northern Mariana Islands — but not Puerto Rico (or Guam, American Samoa, or the USVI). After receiving benefits then getting cut off and sued by Social Security, the lower courts held that this exclusion from the Supplemental Security Income program violated the equal protection principle embedded in the due process clause of the 5th Amendment. Novel but fairly straightforward legal issues here. See this interesting amicus brief from 18 territories and states. arguing that the “Court should treat Congress’s discrimination against any state or territory in the context of nationwide aid programs with suspicion.”

Another interesting and important case is next, involving religious freedom in the context of pastor’s prohibited behavior during an execution. The pastor was allowed in the execution chamber, but could not touch the condemned person or pray out loud. Claims under the Constitution’s free exercise clause as well as the Religious Land Use and Institutionalized Persons Act. Again, important but fairly straightforward legal issues, but for an unexpected perspective, see this amicus brief from the Freedom From Religion Foundation arguing that “the Court’s recent, unprecedented expansion of the religious liberty protections under the Free Exercise Clause necessitates the conclusion that a state-sponsored execution substantially bur- dens the decedent’s religious liberty rights. . . . [T]he the Court must conclude that the execution itself is a violation of the Free Exercise Clause. It would be absurd to continue reviewing increasingly granulated end-of-life details for any hint of an encroachment on religious liberty, knowing that a far greater burden, without any rational justification, will immediately follow.” (And many other briefs in Ramirez v. Collier.)

Wednesday, Nov 10

Just one case today, Austin v. Reagan National Advertising of Texas Inc. involving a First Amendment claim about signs and billboards. The City of Austin allows digital signs for “on-premises advertising” (at the location where the business is located) but not elsewhere. A sign company is calling this unconstitutional discrimination. The legal resolution will likely turn on whether the regulation is “content-neutral” or “content-based.” Content-neutral restrictions on speech need only satisfy “intermediate scrutiny,” meaning it advances an important government interest through means that are substantially related to that interest. The Fifth Circuit held that “Because an off-premises sign is determined by its communicative content, we hold that the Sign Code’s distinction between on-premises and off-premises signs is content based” and therefore was subjected to strict scrutiny (a compelling governmental interest and narrowly tailored) and failed that test.

The Court will then be in recess until the next set of arguments starting Nov 29.

Late November & Masterpiece Cakeshop

What may be the most highly watched case of the term — Masterpiece Cakeshop, involving nondiscrimination laws and same-sex couples — will be argued on December 5.  Before then, we also have important cases involving Dodd-Frank whistleblowers and privacy rights in phone records.

[Update:  PBS Newshour, Analysis: 3 cases that make December a blockbuster month for the Supreme Court]

There are important patent cases on Monday, November 27.  They will not be of interest or easy to follow for the casual observer, but if you’re interested in PTO procedures or patent law, see the case pages here and here.

Tuesday, Nov 28

The first case today is a technical issue of civil procedure for class actions under the Securities Act.

However, the second case, Digital Realty Trust, Inc. v. Somers, could significantly expand or contract the rights of whistleblowers under the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Wednesday, Nov 29

Carpenter v. United States raises important issues about privacy rights in the vast amount of data that is stored by companies we rely upon for modern technology.  A 1986 federal law, the Stored Communications Act, allows phone companies to turn over records to law enforcement without a warrant.  Now, of course, phones transmit much more information than anyone could have anticipated three decades ago.  The Court has accepted cert. on the question “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.” A useful overview is here, and be sure to follow the link there to the EFF brief.

This is the only case scheduled for today.  No change to the usual one-hour argument has been ordered, but it may run a little long.

Tuesday, December 5 — Masterpiece Cakeshop

This may be the most anticipated case of the term, involving nondiscrimination laws and the rights of same-sex couples and private businesses.  Briefly, the Colorado Civil Rights Commission determined that a bakery violated state law when it refused to prepare a cake for a same-sex wedding.  The baker claims that his First Amendment rights should bar the state from enforcing its nondiscrimination laws.  A great deal has been written about this case in non-legal forums, but before attending arguments, it would be wise to review the Scotusblog overview, Mary Bonauto’s article, and the couple’s petition for cert.

This case is sure to draw a huge crowd, probably with lines forming the night (or afternoon) before. On the other hand, I would expect demonstrations and press conferences outside the courthouse before, during, and after arguments.  So plan to get there exceedingly early if you want to attend the arguments, but you also could just take in the events outside.

This is the only case scheduled for argument today.  The Court has not extended argument time, but it also has not (as of Nov 20) acted on the Solicitor General’s motion to split time with the bakery.  Regardless of how the Court divvies up the time, I would expect arguments to run at least a little past the usual hour.