Tag: scotus

Late February and early March cases

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

Monday, February 24

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

Tuesday, February 25

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

Wednesday, February 26

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

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

Tuesday, March 4 — Gun Maker Liability

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

Wednesday, March 5

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

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

January 2025 Cases

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

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

Friday, January 10 – the TikTok ban

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

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

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

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

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

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

Monday, January 13

First Step Act – Hewitt v. US

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

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

ADA – Stanley v. City of Sanford, Florida

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

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

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

Tuesday, January 14

“False” statements and Chicago power families – Thompson v. US

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

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

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

Civ. Pro.

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

Wednesday, January 15

the one with porn – Free Speech Coalition v. Paxton

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

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

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

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

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

Tuesday, January 21

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

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

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

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

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

Wednesday, January 22

Police shootings – Barnes v. Felix

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

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

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

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

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

ERISA

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

December 2024 cases

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

Monday, December 2

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

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

Tuesday, December 3

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

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

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

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

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

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

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

Monday, December 9

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

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

Tuesday, December 10

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

Wednesday, December 11

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

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

First Monday and October 2024 cases

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

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

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

First Monday, October 7

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

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

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

Tuesday, October 8

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

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

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

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

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

Wednesday, October 9

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

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

Tuesday, October 15

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

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

Wednesday, October 16

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

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

Final arguments of the term – April 22-25.

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The last set of regularly scheduled arguments for the “October 2023 term” will take place April 22-25. Many extremely important and high-profile cases were saved for the end: anti-homelessness ordinances, immigration, union injunctions, abortion, and Trump’s claim of immunity.

Monday, April 22

The first case today concerns the Eighth Amendment and anti-homelessness ordinances. The Supreme Court has held that it is cruel and unusual, in violation of the Eighth Amendment, to punish someone for a “status” over which they have no control. Historically, this struck down laws that made it a crime not merely to use drugs but to be addicted to drugs – but obviously, it is very challenging to distinguish between laws that outlaw a status and laws that outlaw an action that one engages in as an inevitable consequence of that being in that status. In more recent years, the 9th Circuit, in particular, has applied this principle to bar the state from enforcing camping bans and similar anti-homelessness measures when there is inadequate shelter space or other free housing available. As Amy Howe notes in her useful argument preview, the rationale was that ”just as the city could not punish someone for their status – being homeless – it also could not punish them for conduct ‘that is an unavoidable consequence of being homeless.’” Now, in City of Grants Pass v. Johnson, an Oregon city asks the Supreme Court to reject that application of the principle. That city is joined in amici briefs supporting them filed by an extraordinary array of both progressive and conservative cities and half the states in the country.

It should be a fascinating argument. Expect it to run long; the Solicitor General is participating in the argument, which means that there will be a third round of each Justice getting to ask questions of the arguing lawyer after that person’s time has expired.

The Court hears a second argument this morning,

concerning the Federal Arbitration Act, but it is highly procedural and not one I would recommend to the casual observer. Briefly, plaintiffs brought a lawsuit in federal court then recognized that all claims are subject to mandatory arbitration. The court then dismissed the suit “without prejudice” (meaning the plaintiffs can re-file if something changes to create a viable legal theory). The trick is that the FAA instructs the courts to “stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C. § 3. The Ninth Circuit held that the district court nevertheless had discretion to dismiss the case, rather than stay it, because all parties agreed that all claims were subject to arbitration. The Supreme Court has granted cert. on precisely that (“Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.”).

Tuesday, April 23

Department of State v. Muñoz involves the rights of a U.S. citizen to demand due process for their non-citizen spouse. Muñoz married a citizen of El Salvador and later filed a family-based immigrant visa petition. All was proceeding well for them until the final step, which was for the husband to return to El Salvador for an in-person interview at the US Embassy. The consular officer rejected his visa application, apparently out of suspicion that his tattoos signified gang affiliation. 8 U.S.C. § 1182(a)(3)(A)(ii) is a “catch-all provision” permitting consular officers to reject anyone they believe will participate in “unlawful activity” in the United States. The citizen wife brought suit in federal court, and the Supreme Court has granted cert. on two issues: “(1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.”

It should be interesting arguments. There is an additional interesting overlay in that Congresswoman Judy Chu attempted to intervene but was stymied by State — so also take a look at the amicus brief from Members of Congress on the role of Congress.

The second argument today

is procedural but an important and interesting issue of labor rights. In Starbucks Corp. v. McKinney, workers organized a union at Starbucks and seven of them were fired; their union filed unfair labor practices charges with the National Labor Relations Board. McKinney is a regional director of theNLRB, who petitioned a federal court for an injunction returning the employees to work, pending completion of the Board’s proceedings. The court agreed and granted the requested order.

The National Labor Relations Act specifies that the NLRB may “petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred . . . for appropriate temporary relief.” 29 U.S.C. § 160. Courts have interpreted this to mean that an order should be granted if there is “reasonable cause” to believe the unfair labor practice occurred and the relief requested is “just and proper,” and both the lower court and the Sixth Circuit agreed that standard was met here. But Starbucks argues that the courts should instead apply the typical four-factor test for other forms of preliminary injunctions. Like other Circuits, the Sixth held that the other test is not applicable to the powers of the NLRB specifically authorized by federal statute. The Supreme Court has accepted cert. to resolve which standard should be applied to NLRB-sought injunctions. See an interesting amicus brief by labor and employment law professors.

Wednesday, April 24 – abortion

A specific application of the abortion debate and healthcare access today, in a case that I’m surprised we haven’t heard more about, Moyle v. U.S. Idaho criminalizes nearly all forms of abortion, except those that are “necessary to prevent the death of the pregnant woman,” ectopic pregnancy, or rape or incest in limited circumstances; it does not provide an exception for health of the mother. Federal law, however, requires hospitals that receive federal funds to provide “necessary stabilizing treatment” for any “emergency medical condition.” Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. 1395dd(b).

After Dobbs, HHS issued a formal guidance document interpreting EMTALA and concluding that federal law preempts state law, such that “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

The Idaho law has, since then, been challenged and received different preliminary outcomes in several court proceedings. See the NWLC fact sheet for full details. Arguments and lines are quite predictable, so I won’t say more except to point out an interesting amici brief from “current and former local prosecutors and law enforcement leaders from across the country” arguing that EMTALA should preempt state laws because “these state laws ask prosecutors and law enforcement—like amici—to second-guess emergency room physicians’ judgments about these indeterminate medical matters when initiating investigations, arrests, or prosecutions.”

Thursday, April 25 – Trump immunity

Trump v. U.S. is the case in which “Trump claims absolute immunity from criminal prosecution for all ‘official acts’ undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment” for conspiring to overturn the election. The full D.C. Circuit opinion is really worth your time to review; many observers were surprised the Supreme Court didn’t just deny cert. and let that decision stand. Amy Howe also has a useful summary. Expect extreme lines and lots of activity out front for this one.

April 15-17 cases

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There are two more weeks of regularly scheduled arguments in the “October 2023” term. I want to get this post up concerning the upcoming week; another post to come concerning the final cases. That final week will have important and high-profile cases concerning anti-homelessness ordinances, immigration, union injunctions, abortion, … oh, and Trump’s claim of immunity! Details on those cases to be posted by the end of this week.

But first, this week has cases involving public corruption, malicious prosecution, ineffective assistance of counsel in death penalty cases, … oh, and January 6 insurrectionists!

Monday, April 15

First up is a type of public corruption case, in which the question is whether a federal law — that prohibits an official of an organization or governmental entity from accepting “anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more” — prohibits “gratuities” or only pre-arranged quid pro quo bribery. In Snyder v. U.S., Snyder was the Mayor of Portage, Indiana who directed his friend and city official to conduct a bidding process to purchase two garbage trucks. The prosecution argued that the bid description favored a particular company, which ultimately won the contracts. Less than three weeks later, the winning company gave Snyder a $13,000 payment “for his consulting work.” (More details, including his tax problems and other indictments here.) Snyder argued the federal law, 18 U.S.C. § 666(a)(1)(B), applied only to bribes, not gratuities, but the Seventh Circuit noted that the law does not use either term and held that “[t]he statutory language ‘influenced or rewarded’ easily reaches both bribes and gratuities.” The Seventh Circuit has a long set of precedents going back nearly 20 years from that and other Circuits that have similarly held that pre-arranged quid pro quo agreements are not necessary to violate § 666.

The Circuit went on to find that the evidence was sufficient that Snyder “corruptly” construed the bidding process intending to be rewarded later. It gives a useful context and makes for entertaining reading, so a longer quote from the decision:

  • Mayor Snyder put his good friend Reeder in charge of the bidding process even though Reeder had no experience administering public bids. Reeder then tailored both bid requirements to favor GLPB. In the first-round invitation, Reeder based the chassis specifications on a Peterbilt chassis, and after GLPB told Reeder it could deliver trucks in 150 days, Reeder included a 150-day deadline. In the second round, Reeder tailored the bid specifications to match the truck that had been sitting on GLPB’s lot even though the truck was not the manufacturer’s current model. The second invitation to bid was issued after Mayor Snyder tried unsuccessfully to purchase the GLPB truck outright. Evidence at both trials established that Snyder communicated with the Buhas around the time of the second-round bid.
  • Less than three weeks after the second contract was awarded to GLPB, the Buhas had GLPB pay Snyder $13,000. When questioned by the FBI, Snyder claimed the $13,000 check was payment for healthcare and information-technology consulting he performed for GLPB. When pressed for specifics, Snyder could not identify any work product he provided GLPB. He said that he went to meetings and “discussed things.” Although Snyder claimed to have advised GLPB on healthcare options after passage of the Affordable Care Act, he could not recall what decision GLPB made regarding its employees’ insurance coverage. The government subpoenaed GLPB and Snyder for all documentation, correspondence, work product, and billing records related to Snyder’s consulting work for GLPB. No such evidence was produced.

Second argument

The second argument today concerns the ability to bring a malicious prosecution claim. Suppose you are charged with multiple crimes, some of which are baseless allegations but others of which have legitimate grounds. If the “charge-specific rule” applies, then you can sue over the baseless charges. If the “any-crime rule” applies, then you cannot sue at all. Interesting questions of state law implications when suing under the federal civil rights statute, and other issues, are nicely described by Cornell Law’s LII post.

Tuesday, April 16 – Jan 6 cases

Like many January 6 insurrectionists, the defendant in Fischer v. US was charged with, among other things, obstructing an official proceeding in violation of 18 U.S.C. § 1512. Although the section is titled “Tampering with a witness, victim, or an informant” and much of it concerns witnesses or evidence, subsection (c) provides for imprisonment for up to 20 years of anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Amy Howe at SCOTUSBlog has a very thorough description of the arguments and legal issues; highly recommended reading. The DC Circuit decision is also quite readable and strong — with a comprehensive and clever call-out to any “textualists” who might be ideologically inclined to favor the insurrectionists (“If a statute’s language is clear, then that language controls.”).

This is the only case scheduled for argument today. Obviously, expect it to run long.

Wednesday, April 17

Thornell v. Jones involves ineffective assistance of counsel in the context of the death penalty. Jones was convicted (Thornell is the director of the Arizona Department of Corrections) of murder. At sentencing, as DPIC explains, his lawyer “did not present evidence in his possession that Mr. Jones had received treatment for mood disorders, attempted suicide five years before the murders, spent time in a mental institution, and suffered multiple neurochemical deficiencies. Mr. Novak did not present any additional family witnesses and the court-appointed expert conducted only a ‘short and cursory evaluation.'” The case has been up-and-back to the Court before. Initially, the district court held that Jones could not show prejudicial error, the Ninth Circuit reversed, and the US Supreme Court summarily reversed and remanded with instructions to reconsider the case in light of the Court’s recent decision in another case (which held that another death penalty petitioner had failed to show prejudice due to the extensive evidence that the prosecution presented). Again, the lower court ruled against Jones and, again, the Ninth Circuit reversed, this time explaining that the lawyer’s “failure to investigate and present evidence of a defendant’s mental defect constitutes deficient performance.” There will be a lot of argument about appropriate standards and criteria for ineffective assistance claims; I recommend reviewing the NACDL brief.

This is the only case scheduled for argument today.

February cases

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Important cases in the last two weeks of February, including EPA regulations, social media moderation, and bump stocks.

Wednesday, February 21

The EPA’s Good Neighbor Plan is first up today in Ohio v. EPA and US Steel v. EPA. As the Congressional Research Service notes (in a report that would be very helpful to review) the Good Neighbor Provision of the Clean Air Act “requires upwind states to ensure that their emissions do not interfere with the ability of downwind states to meet federal air-quality standards.” The EPA now requires states to submit plans for how they will comply with that requirement. And as an equally helpful SCOTUSBlog preview notes, “Last February, the EPA rejected the plans submitted by 21 states that proposed no changes to their emissions plans. Instead, one month later, it published a federal plan for the states whose plans it had rejected, as well as two that had not submitted plans.” This comes in the context of a sense that several conservative members of the Court are suspicious of administrative agency powers, as was on display at the “Chevron deference” case argued last month.

Expect this argument to run very long. A total of one hour has been scheduled for primary argument, but there are four arguing counsel. After the primary argument time expires for each arguing counsel, each justice gets one more round of questioning.

Today’s second argument is on a technical procedural issue concerning the statute of limitations under the Copyright Act, in Warner Chappell Music v. Nealy. See a brief from EFF, American Libraries Association, and others.

Monday, February 26 — social media moderation

Exceedingly important cases today asking whether the state can, consistent with the First Amendment, regulate how social media companies moderate content on their platforms. Florida and Texas have each passed laws restricting social media companies, although who is protected from moderation is different. In brief, the Florida law provides that “[a] social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast“ and “may not willfully deplatform” or prioritize or shadowban a candidate for public office. The Texas law more broadly prohibits “censor[ing] a user, a user’s expression, or a user’s ability to receive the expression of another person” based on “viewpoint.”

The cases have received a great deal of attention so I will mostly just recommend the SCOTUSBlog preview. My own view is that there are strong reasons to doubt whether large social media companies are being responsible in the design and implementation of their products, but upholding the specific laws at issue in these cases will only make it harder to address the encroachment of hate speech, misinformation, and conspiracy theories that are substantial threats to the people’s ability to use social media for purposes that are key to free speech and a functioning democracy. For better or worse, large social media companies are the services from which Americans rent space for their “salon.” The public needs to be able to secure a venue from a provider who is not obligated to escort in guests who wish to insist that school shootings are “hoaxes,” even if that individual makes a living as a “journalist” or if the state might consider that a “viewpoint.”

The two cases (Moody v. Netchoice and Netchoice v. Paxton) have not been consolidated for argument, so expect arguments to run 3-4 hours.

Tuesday, February 27

Two technical issues today that I would not recommend for the casual observer.

McIntosh v. U.S. asks whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2.

Cantero v. Bank of America asks whether the National Bank Act preempts the application of state escrow-interest laws to national banks.

Wednesday, February 28 — bump stock ban and arbitration agreements

First up is an extremely important issue that is clearly summarized in the official question presented: whether a bump stock device is a “machinegun” as defined in 26 U.S.C. § 5845(b) because it is designed and intended for use in converting a rifle into a machinegun, i.e., into a weapon that fires ‘automatically more than one shot … by a single function of the trigger.'” Vox has a very useful summary of the issues in Garland v. Cargill.

The final February case involves arbitration clauses. The Court has generally (but not uniformly) favored those pushing for greater ability to enforce contracts mandating arbitration, against a variety of challenges. Sometimes it is not clear whether the specific dispute is covered by an arbitration agreement. And sometimes, a contract will provide that questions about whether a dispute is subject to arbitration should be decided by the arbitrator rather than a judge (“delegate questions of arbitrability,” in the lingo). But what happens if the parties have agreed to multiple contracts, only the earlier of which clearly sends such questions to an arbitrator? Hence the issue today in Coinbase, Inc. v. Suski: “whether, where parties enter into an arbitration agreement with a delegation clause, an arbitrator or a court should decide whether that arbitration agreement is narrowed by a later contract that is silent as to arbitration and delegation.”

Thursday, Feb. 8 — Trump office eligibility & ballot access

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The Court convenes February 8 for an extraordinary Thursday session to hear arguments in Trump v. Anderson, in the specific issue of Donald Trump’s eligibility to be on the Colorado ballot for Republican candidate for the Presidency of the United States, with obvious nationwide implications concerning Section 3 of the Fourteenth Amendment. I normally save my independent analysis for cases that have not already received such vast public attention, but this time I want to highlight some legal issues and lines of argument that may have been drowned out in the political talk and even some of the more law-oriented coverage. (Although I’ll still mostly recommend reading those who have really done the hard work!)

I read the Trump petition and found the vast majority of the claims to be without merit. As Akhil Amar put it in previewing the analyses he fully develops later in his amicus brief:

Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally.

– Amicus Curiae Brief of Akhil Reed Amar and Vikram David Amar in Support of Neither Party

I’ll add that I’ve found the focus on a precise definition of engaging in insurrection frustrating given that the Amendment also imposes ineligibility on those who have “given aid or comfort to the enemies” of the Constitutional order.

I recommend beginning with that Amar brief, which itself begins by discussing how a pre-Civil War insurrection that parallels January 6 was on the minds of the Radical Republican drafters and makes clear that such actions were meant to be disqualifying after the Reconstruction Amendments. Those and other analyses are buttressed by another group of law scholars. And I strongly recommend a really compelling brief on the history and original intent of the 14th Amendment written by a group of historians (all of whom “are elected members of the American Academy of Arts and Sciences and winners of either the Pulitzer or the Bancroft Prize or both,” and two of whom gave an NPR interview on this).

The more difficult question is whether Trump’s current ineligibility to hold office means that he is also ineligible to run for office. The Amendment uses the word “hold” and provides that Congress may vote to remove that ineligibility; presumably that vote could come even after an election. So at first blush, this appears to be Trump’s strongest argument. But as the top quote signals, Amar handily dispatches that argument, too.

Among the many good arguments on this is an important federalism overlay that I think is often missed — and it’s intriguing to see states’ rights lining up the way it does in this case. It is perfectly reasonable for Colorado to limit ballot access to persons who are eligible for that office. And moreover, our federalist system holds that it is the role of the Colorado courts “to say what the [Colorado] law is.” The Brennan Center for Justice (out of NYU Law) has a thoughtful amicus brief on this, explaining that for the US Supreme Court to override Colorado’s interpretation of that state’s election laws would be a variation on the absurdist “independent state legislature theory” that the Court soundly rejected just last summer.

Finally, do not miss the NAACP LDEF brief. It is a powerful call (grounded in strong legal analysis, as always) to preserve the Reconstruction Amendments, warning the Court not to repeat its past shameful errors of issuing decisions (notoriously but not limited to Plessy v. Fergusson) that undermined the meaning and practical enforceability of those provisions that were designed and remain necessary to preserve democracy.

Getting the most out of the arguments

Read up. Above are many more links than I usually share, but I strongly recommend at least reviewing the table of contents and introductory section of each, and reading the full arguments that interest you most. Even more than most cases these days, this case will be seen in a politicized context but understanding the fully developed legal arguments will allow you to engage with (and possibly critique) the arguments from a less-entrenched perspective.

Argument begins at 10:00 and all arguments are open to the public. Expect arguments to run until at least noon and possibly 1:00 (particularly if the Court grants a recent request for divided argument and additional time). Edit: the Court granted that motion in part. 80 minutes total time but 3 arguing counsel. When the allotted time expires, each Justice gets one more round of questioning for that lawyer (which often adds 15-30 minutes each round, times 3 lawyers).

Attend in person if you can. Lines to get into the Court have been quite reasonable so far this term, with people arriving around 6am and still getting in for somewhat high-profile cases — but surely a Trump case will be different. I’ve been guessing 3am for cases with a lot of public interest and I would try to get there as early as possible for this one. More details here.

Listen live online if in-person is impractical. The front page of supremecourt.gov has a link or see the audio page. You might also see if scotusblog is live-blogging.

Swing by if you can. If you’re in DC but a very early and full morning at the Court isn’t an option, it is worth coming by the Court to take in the atmosphere. When the session concludes, arguing counsel will come out and hold press conferences on the sidewalk in front of the plaza. There will likely be demonstrators all morning.

Or take it in when you can. Recordings, transcripts, and transcript-synchronized recordings will be available later.

January 2024 Cases

case suggestions

The big Chevron deference cases are at the end of this block of arguments, but the Court will first hear cases on immigration procedure, mootness in the context of civil rights and the No-Fly list, the unconstitutional conditions doctrine, the confrontation clause for expert testimony, and the takings clause.

Monday, January 8

First up is an immigration procedure question with another grammar kicker! When initiating deportation proceedings, the Immigration and Nationality Act requires the government to serve a “notice to appear” that includes the time and place of the hearing. 8 U.S.C. § 1229. According to the petition, “[f]or years,” the government has instead served an initial notice that does not include the time and place but rather “supplies that information in a standalone ‘notice of hearing’ that it serves later — at times, years later.”

If correct procedures are followed, then the individual’s failure to appear results in a default judgment and order of removal. Paragraph (1) of the relevant section requires the “notice to appear” to include the time and place; paragraph (2) requires a separate document “in the case of any change or postponement in the time and place”; and a separate section provides that the order of removal can be rescinded if “the alien did not receive notice in accordance with paragraph (1) or (2).”

A group of linguists filed an amici brief arguing that “[f]rom a linguistic standpoint, the negative
disjunction ‘not A or B’ is ambiguous between two literal semantic interpretations. First, it can be
interpreted as [neither A nor B]. We will call this the neither-nor interpretation. . . . Second, the negative disjunction ‘not A or B’ can be interpreted as [either not A or not B]. Here we refer to this interpretation as the either-or interpretation.” They ultimately argue that “regardless of how the rescission condition is disambiguated, the plain text of the condition provides insufficient support for the Government’s understanding of the condition.”

Today’s argument covers two cases, Campos-Chaves v. Garland and Garland v. Singh, the later of which involves two parties. But the Court has consolidated the cases for one hour of argument total and denied the request for divided argument that would have allowed counsel for all 3 noncitizens to present separate arguments. So I would expect the “one hour” argument to run the now-usual two hours (or so), but not longer.

The second case involves the No-Fly list and a rather horrifying set of background facts, but the legal issue concerns the more procedural standard for mootness. In FBI v. Fikre, a US citizen was stranded in Sudan when placed on the No-Fly list after he refused to become an FBI informant, after which he was imprisoned and tortured in the UAE. He eventually managed to return to the US and brought suit against the FBI. (All these facts are compellingly summarized on this scotusblog article.)

But the Court has accepted cert. only on “Whether respondent’s claims challenging his placement on the No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he ‘will not be placed on the No Fly List in the future based on the currently available information.'” The 9th Circuit held that this assurance is not enough to moot the case, because the government instead would have to make it “absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

Tuesday, January 9

The Court considers the “unconstitutional conditions” doctrine in Sheetz v. County of El Dorado, California. That doctrine prohibits the government from denying a benefit in a way that infringes a constitutional right and is usually thought of in the First Amendment context. However, as Oyez explains, “The U.S. Supreme Court in Nollan (1987) and Dolan (1994) recognized that land-use permit applicants ‘are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits.’ Under those cases, the government may condition approval of a land-use permit on the owner’s dedication of property to public use if the government can prove that an ‘essential nexus’ and ‘rough proportionality’ exist between the demanded property and the impacts of the owner’s project.” This case challenges the county’s “Traffic Impact Mitigation (TIM) Fee Program” imposed on certain building permits.

The second case today involves retrospective refunds of Bankruptcy fees, and is not one I’d recommend to the casual observer.

Wednesday, January 10

The only case today involves the confrontation clause in the context of expert witnesses. In Smith v. Arizona, Smith was convicted of possession of marijuana but the substance was established to be marijuana on the basis of testimony from an expert who did not perform any tests on the substance but only relied on the reports of another expert who did not testify. The Arizona Court of Appeals upheld the conviction, noting that the defendant could have called the expert who performed the tests himself. The Innocence Network and others offer an interesting amici brief noting that “[t]he misapplication of forensic science is one of the leading causes of wrongful convictions, present in 24% of proven exonerations,” and arguing that “[f]oregoing a cross-examination requirement of the original analyst prevents the criminally accused from being able to reveal the fraud, bias, or error that may have tainted the evidence against them.”

[The Court is closed on Monday, January 15 in observance of Martin Luther King, Jr. Day]

Tuesday, January 16

The first case today is a technical issue involving pleading standards for lawsuits based on violations of SEC regulations, and is not one recommended for the casual observer.

Next up is a takings clause case — challenging a 5th Circuit decision that many observers found rather bizarre (e.g. this ABA Journal piece). Many constitutional rights are vindicated by filing suit under 42 U.S.C. § 1983, which authorizes a lawsuit for deprivations of rights under color of law. However, states themselves are not subject to suit under § 1983. And in this case, Texas argued that landowners cannot bring suit directly under the Fifth Amendment — and the Fifth Circuit agreed, rather summarily reversing a magistrate’s ruling that noted that Texas’s position would “eviscerate[] hundreds of years of Constitutional law in one fell swoop.” The Court has accepted cert. on “Whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.”

Wednesday, January 17 — Chevron Deference

These are the heavily anticipated cases (Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo) with huge potential to disrupt the power of executive agencies and the role of the administrative state, by reconsideration of Chevron deference.

A very brief primer: Congress often passes laws with broad policy positions and some directly enforceable language, but then empowers administrative agencies to adopt specific regulations to implement those laws. For example, Congress can’t approve every new pharmaceutical or respond to every newly identified environmental or health hazard, so it sets broad standards and empowers the FDA, EPA, CPSC, OSHA, and other agencies to do so. But when are those statutory standards violated, and how much leeway does the agency have to make that call and set regulations to implement them? Does the release of 3 ppm of chemical compound X violate the Clean Water Act, or should it be okay to discharge 5 ppm? Under “Chevron deference,” when the Congressional language is “ambiguous,” courts defer to the agency’s interpretation as long as it is “reasonable.”

In recent years, more and more members of the Court have questioned the role and power of administrative agencies. In two cases set for argument today, the Court has signaled an interest in taking on the fundamental question: “Whether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

These are incredibly important cases but it won’t be easy to follow the arguments; the issue is easy to understand in principle, but much more difficult when you try to actually draw lines and deal with implications. The organization that was part of the original Chevron case has an interesting and readable article. Also, an amici brief from administrative law professors might provide helpful background to understanding the arguments. And finally, I strongly recommend you consider this perspective on the implications for civil rights laws.

There are two cases with the same “question presented” but they have not been consolidated for oral arguments. Expect this one to run very long (I’m guessing at least 3 and probably more like 4 hours).

December 2023 arguments

case 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.”

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