Around 30 opinions remain outstanding.
Around 30 opinions remain outstanding.
T he U.S. Supreme Court is entering the home stretch. It will hand down opinions on Monday and will likely finish its term just before the Fourth of July weekend. At this writing, about 30 opinions are likely outstanding. A few of those address minor issues, discrete areas such as Native-American law, or have little impact on anyone but the particular parties. Here are the other cases still on the docket.
Sports
National Collegiate Athletic Ass’n v. Alston: Maybe the case on this spring’s docket with the most headline-grabbing potential is not a conventional case about constitutional law but Alston. The U.S. Court of Appeals for the Ninth Circuit ruled, in Alston, that federal antitrust laws are violated by NCAA rules barring college sports teams from paying players. Unlike Major League Baseball, the NCAA has never enjoyed a formal exemption from antitrust law, but the courts (including the Supreme Court in a 1984 decision) have been deferential to the NCAA’s arguments that the educational purpose of colleges can justify what is obviously a cartel to extract enormous economic value from unpaid labor. Justice Clarence Thomas focused on one obvious symptom of the earnings potential of big-time college sports players: There is no similar restriction on paying the coaches, who are the highest-paid state employees in 39 states. Enough justices were skeptical of the NCAA’s arguments that there is a real chance that the Court will agree with the Ninth Circuit. A broadly written decision could revolutionize college sports.
Election Law
Brnovich v. Democratic National Committee: The Court turned down every chance to weigh in on the conduct of the 2020 presidential election, even after the fact when it could have issued a decision on the ground rules without disturbing the election. But it has not stayed entirely out of the contentious area of election law. The Brnovich case involves a challenge by Arizona Democrats to two types of election laws that are common in many states and are being pursued by Republicans in others: laws limiting “ballot harvesting” (i.e., the collection of ballots by an intermediary between the voter and the ballot box), and laws that count votes only if they are cast in the correct precinct. While the case turns on evidence specific to Arizona, it is likely to be decisive of the survival of both types of laws nationwide. The justices seemed unlikely to buy the Democrats’ argument, which has been widely regarded as a weak case. The larger legal issue revolves around whether Section 2 of the Voting Rights Act applies broadly to practices that have a disparate impact on a racial minority group’s voting, and if so, what sort of proof can show that this is connected to historic discrimination. The Democrats’ case is so weak that the Democrats are trying to get it dismissed on standing grounds to avoid a ruling on the merits.
Social and Cultural Issues and Civil Liberties
Fulton v. City of Philadelphia: Religious liberty is back in the Court’s sights in Fulton, and yet again, it involves government pressure on a religious institution to accept same-sex marriage in violation of its faith. The case comes from the Philadelphia city council trying to ban Catholic Social Services from the city’s foster-care system because it would not place children with same-sex or unmarried couples. The city argues that it would do the same to a secular organization. Because the case has been argued under the First Amendment rather than the federal or state Religious Freedom Restoration Acts, the Court’s 1990 decision in Employment Division v. Smith — written by Justice Antonin Scalia — bars religious groups from claiming a violation of their right to free exercise if the law applies generally and falls equally on the religious and non-religious alike. The Court has been asked to overrule Smith, but it seems unlikely that a significant number of justices are ready to do that in this case.
Mahanoy Area School District v. B.L.: A high-school cheerleader got kicked off the team for a Snapchat post of her, middle finger extended, captioned “F*** school F*** softball F*** cheer F*** everything.” She was suspended from the team. Public schools, being the government, are restricted by the First Amendment in sanctioning students for speech, but students can be punished in order to maintain discipline. Mahanoy asks whether student free speech is similarly limited when the speech is off school grounds.
Americans for Prosperity Foundation v. Rodriquez: Can California’s attorney general demand the identity of donors to nonprofit organizations? Given the appalling record of the California AG’s office under Kamala Harris and Xavier Becerra in protecting the confidentiality of that information, the Court might find that the office cannot be trusted with that information. Or, the Court might craft a broader rule that protects the right of donors to advocacy organizations — outside the regulated context of direct donations to candidates and parties — to associate privately. But the Court may also want to avoid upsetting the power of the IRS to demand the same information.
Federal Power
Texas v. California: The Obamacare mandate is back at the Supreme Court. Chief Justice John Roberts saved the mandate, and with it the heart of Obamacare’s core system of insurance-premium regulation, by concluding that Congress could not mandate purchases of insurance, but could tax anyone who didn’t buy a policy. So, Congress set the tax to zero, an open mockery of Roberts’s rationale. That may well doom the mandate, but it seems highly unlikely that the Court will throw out the rest of the law now that Congress has made its own decision to kneecap the mandate and leave the rest intact. The Court might also duck the case, as there are significant debates about the standing of state governments to sue.
Fulton and Texas v. California are the only cases left that were argued in November. Four justices are left who might write another opinion from November: Roberts and Justices Samuel Alito, Stephen Breyer, and Elena Kagan. You never know, but the smart money would be on Roberts writing yet another Obamacare opinion.
Arthrex, Inc. v. Smith & Nephew Inc.: The Court has been vigilant in recent years about separation of powers issues, with a particular focus on the proper appointment of judicial officers within the executive branch. Arthrex asks the Court to decide if administrative patent judges of the U.S. Patent and Trademark Office face the same problem of indirect appointment that has plagued administrative law judges in agencies such as the Securities and Exchange Commission, and if so, what sort of retrospective remedy the Court should apply for litigants who had their cases decided by improperly appointed officials.
Yellen v. Collins: A lot of money is at stake in a lawsuit over how shareholders in Fannie Mae and Freddie Mac were treated by the government after it bailed out the two government-sponsored mortgage giants following the 2008 credit crisis. That might be all the Court decides. But one possible issue in the case is a challenge to the “for-cause” restriction on the president’s power to remove the head of the Federal Housing Finance Agency — another question of executive appointments.
PennEast Pipeline Co. v. New Jersey: States are often big fans of eminent domain, even when they are acting on behalf of some private company — but not so much when it’s their own property that gets taken. A private pipeline company condemned land owned by the State of New Jersey, under the authority of the Federal Energy Regulatory Commission. Can the federal government delegate its eminent domain power to let a private company take the land of a state? Or does state sovereign immunity under the Eleventh Amendment bar such condemnation proceedings?
CIC Services, LLC v. Internal Revenue Service: Speaking of whether mandates are really taxes, under the Anti-Injunction Act, citizens and companies cannot sue in advance to stop the government from collecting taxes. But are they also barred from suing to stop the collection — in this case, by the IRS itself — of regulatory mandates that may lead to the collection of a tax? The specific case in CIC is about IRS reporting rules on certain insurance transactions.
Criminal Law and Procedure
Caniglia v. Strom: The police can enter a home with consent, with a warrant, or without one in “exigent circumstances.” On a public road, they can also enter a car for safety reasons — the so-called “community caretaking” exception to the Fourth Amendment. But can they use that as a reason to enter a home? In Caniglia, the police entered the home of a man reported to be suicidal — without a warrant, without probable cause to investigate a crime, but with reasonable concern for protecting his safety and the safety of others — and took his guns. The Court is asked squarely to decide whether “community caretaking” allows police to enter homes simply to protect the safety of the public.
Lange v. California: Another case on where the police can go without a warrant under the Fourth Amendment. Lange asks whether hot pursuit of a suspect is grounds for a search when the suspect is only suspected of a misdemeanor, in this case a suspicion of DUI that led the police into the suspect’s garage.
Van Buren v. U.S.: The Computer Fraud and Abuse Act aimed at hackers by penalizing both unauthorized access to computers and searches that “exceed authorized access.” The Court is considering the statute’s scope for the first time in the case of a small-town Georgia cop who had legitimate access to a license-plate database, but used it improperly to do a favor for a shady friend who was shaking down prostitutes but turned out to be an FBI informant.
Terry v. U.S.: The 2018 First Step Act was supposed to allow retroactive reductions of certain classes of criminal sentences that Congress had decided were excessive. A man who had served 13 years for possession of a small amount of crack tried to get his sentence reduced, but the law only mentioned sentences for larger amounts of crack, creating an anomaly. The Trump administration stuck to the text of the law; the Biden administration has reversed course, but the Court is stuck cleaning up the mess.
Edwards v. Vannoy: The Court’s 2020 decision in Ramos v. Louisiana struck down Louisiana and Oregon laws allowing non-unanimous verdicts in criminal cases. Will that decision be applied retroactively to habeas corpus cases filed by convicts whose time to appeal ran out years ago? That matters to a bunch of criminal cases, and is being challenged by a black Louisiana man who was convicted 15 years ago of a brutal one-night spree of rapes, kidnappings, and robberies and is serving a life sentence; the lone black juror voted to acquit him.
Property Rights and Commercial Cases
Cedar Point Nursery v. Hassid: The Fifth Amendment’s ban on government takings of property without compensation extends to regulations that limit uses of property. But does it apply when a regulation forces a property owner to allow unwanted visitors for strictly limited time periods? A California strawberry-growing business says that its property was taken by a California regulation that allows union organizers to enter its property to speak to employers about supporting a union. The Ninth Circuit thought otherwise, on the theory that this was a temporary intrusion.
TransUnion LLC v. Ramirez: Class actions can seem especially flimsy when a bunch of the people represented by class-action lawyers did not even suffer any harm. That also raises legal questions, both Article III standing issues (if you don’t have an injury and couldn’t sue on your own, how can your case be part of a class?) and the class-action rule, Rule 23 of the Federal Rule of Civil Procedure (if you have no injury, how is your case similar to those of people who do?). TransUnion is a Fair Credit Reporting Act case, and it could not be thrown out on a no-harm basis because the named plaintiff had actually been harmed — but much of the class was not. The plaintiff’s grievance boils down to a technical violation in receiving separate reports in two envelopes instead of one. The harm was his alarm that his name was listed by a credit agency as a potential match to names on a watch list of terrorists and criminals when he tried to buy a car. The $40 million jury verdict was backed by no evidence that most class members even opened the mailings. The Court has approached both the standing and class-injury questions in a few recent cases, but the stakes of TransUnion for class-action law are potentially very high.
Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System: Another big class-action case from my old beat as a securities lawyer. Investor class actions have long been one of the mainstays of the federal bar, even though the main statute (Section 10(b) of the Securities Exchange Act) does not even say anything about private damages lawsuits, let alone how investors are supposed to show that they relied on false or misleading information. The Court has established a series of legal fictions: Investors can be presumed to rely on an efficient stock market, and proof that a stock’s price regularly reacts to new information can show that the market is efficient, in which case a class action can be certified. That typically sets up battles of expert economists. Investors do not need to show, at that point in the case, that the statements were actually important or that the stock price reacted to the particular statements at issue, but the defendant is supposed to have the right to prove that the market didn’t rely on them. But how do you do that when the plaintiffs say that the price would have moved, but the defendant’s statements prevented it? At some point, that becomes an unfalsifiable hypothetical, especially when the statements were generic reassurances — in this case, Goldman Sachs telling its investors before the 2008 credit crisis that it had good standards. A trio of recent decisions on what is and is not a proper issue at the class certification stage have created a tangle of presumptions that have confused this area more than they have clarified it. The Court’s task is to find a rule under which judges asked to certify class actions can actually tell the difference between market-moving and non-market-moving statements by reference to empirical evidence.
Nestlé USA, Inc. v. Doe I: The Court keeps coming back to the Alien Tort Statute, which allows American companies to be sued for international human-rights violations. In this case, child slavery on Ivory Coast cocoa plantations led to lawsuits against American companies that bought the products of the plantations. The Court has limited the ATS from becoming a free-floating source of American lawsuits for wrongs by anyone to anyone anywhere in the world, most recently by barring suits against foreign companies. Can American companies — which are subsidiaries of foreign companies — be sued by foreigners who suffered injuries overseas, on a theory that the companies merely aided and abetted foreign slavery? The Court may decide the case on an even narrower ground: that the aiding and abetting has to consist of something more than just buying products without investigating whether they were made by slaves.
BP v. Mayor and City Council of Baltimore: The BP case is a major test for local Democrats looking for an end run to use private lawsuits to impose climate-change policy on multinational companies. The issue before the Court, however, is not about the validity of such lawsuits, but turns on a narrow procedural question (albeit one of continuing importance to legal practitioners): when a civil defendant can appeal a ruling that it improperly removed a state-court case to federal court. Orders sending a case back to state court usually cannot be appealed, but there is an exception when a federal officer is sued in state court (and a parallel exception for civil-rights cases). BP claimed that it was acting as a federal officer by drilling for oil under federal leases, and that the denial of its removal allowed it to appeal all of its arguments for removal. At argument, the justices were worried about the potential for frivolous invocations of the federal-officer exception to evade Congress’ bar on these mid-lawsuit appeals.
Minerva Surgical Inc. v. Hologic Inc.: Can you sell the patent rights to a technology, then infringe the patent, then turn around and claim that the patent is invalid when the buyer sues you? That feels like fraud, and for nearly a century, the Court has not allowed it. But the patent statute doesn’t actually say anything about it. The Court is usually hesitant to discard old precedents in statutory cases, since Congress can always fix a bad reading of a statute.
Immigration Law
Sanchez v. Mayorkas: Being “adjusted” from the tenuous position of Temporary Protected Status to being a lawful permanent resident is a big step for hundreds of thousands of immigrants who originally entered the country illegally. Some countries, such as El Salvador (the home of the immigrants at issue in Sanchez) have been the subject of fairly broad authorizations for TPS. Does the adjustment statute actually allow adjustments to lawful permanent residence for people who did not originally enter the country legally? Is the statute unclear on the question? If it is, the Court may wade back into the contentious Chevron doctrine, about when administrative agencies get to interpret ambiguous laws and have the courts defer to them.
Garland v. Dai: Dai comes from two asylum cases: a Chinese man fleeing his beating and his wife’s forced abortion due to China’s one-child policy, and a schizophrenic, wife-beating Mexican man who basically says the cops beat him instead of offering the treatment and medication available in California. Claims for asylum are extremely hard to win — the appeals courts are clogged with cases, and the immigrant claimants lose nearly all of them — but when an immigrant’s story would satisfy the standard for asylum, immigration judges also have to decide whether the immigrant’s story is credible. Appeals courts generally accept credibility findings by juries and judges, but what happens if the immigration judge or the Board of Immigration Appeals doesn’t specifically say whether they found the immigrant to be credible? And what if the immigrant seems credible, but outside evidence undercuts them? The question is partly about the poorly written nature of many decisions by overworked administrative law judges, but the essential issue is whether the government is stuck if the immigration judge doesn’t specifically say the immigrant was not credible.
Johnson v. Guzman Chavez: When immigrants are deported, return to the country, and claim fear of torture back home, do they get locked up and subject to an expedited hearing? Or can they remain free in the U.S. while a lengthier process plays out? Two different immigration statutes provide those procedures, and the Court has to decide which one applies to this situation.
U.S. v. Palomar-Santiago: Here’s another angle on the Whac-a-Mole game of deportation and re-entry: If the immigrant is criminally indicted for unlawful re-entry and claims that the original deportation order was wrong (because he was removed for a crime, a felony DUI, that the Court later concluded was not grounds for removal of a lawful permanent resident), can he raise that as a defense, or is it too late to challenge the legality of that order?