Supreme Court – Prof. Zachary Wolfe, Esq.

Final arguments of the term – April 22-25.

April 20, 2024April 20, 2024case suggestionsLeave a Comment

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

April 14, 2024April 14, 2024case suggestionsLeave a Comment

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

February 20, 2024case suggestions, commentaryLeave a Comment

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

February 1, 2024February 6, 2024case suggestions, commentaryLeave a Comment

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

January 4, 2024case 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

November 28, 2023case suggestions

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

Tuesday, December 5

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

Wednesday, December 6

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

Oct 30/31 & early November cases

October 26, 2023case suggestions

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

Monday, October 30

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

Just one case today.

Tuesday, October 31

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

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

Wednesday, November 1

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

This is the only case set for argument today.

Monday, November 6

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

Tuesday, November 7

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

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

Wednesday, November 8

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

The next block of arguments starts November 27.

Lines and argument info

October 2, 2023case suggestions

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

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

First Monday and October 2023 cases

August 13, 2023case suggestions

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

Monday, October 2

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

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

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

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

This is the only argument scheduled for today.

Tuesday, October 3

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

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

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

Wednesday, October 4

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

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

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

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

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

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

Tuesday, October 10

The first two-argument day of the term.

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

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

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

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

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

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

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

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

Wednesday, October 11 — Gerrymandering

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

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

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

Decision days lines (and more)

June 27, 2023case suggestions

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

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

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

The remaining cases are:

The affirmative action cases (argued Oct. 31), Students for Fair Admissions, Inc. v. University of North Carolinaand Students for Fair Admissions v. President and Fellows of Harvard
303 Creative LLC v. Elenis (argued Dec. 5) — the latest chapter in challenges to anti-discrimination laws involving LGBTQ rights.
Biden v. Nebraska and Dept. of Educ. v. Brown (argued Feb. 28), the student loan forgiveness cases.
Groff v. DeJoy (argued Apr. 18), involving the scope of an employer’s Title VII obligation to accommodate religious observances.
And one I hadn’t been highlighting: Abitron Austria GmbH v. Hetronic International, Inc., involving extraterritorial application of trademark law.