Here are the remaining cases still on the docket, plus some concluding thoughts.
Here are the remaining cases still on the docket, plus some concluding thoughts.
Editor’s Note: This is an updated version of a previously published article.
T he U.S. Supreme Court is getting deeper into the home stretch. It will hand down opinions at 10 a.m. today and will likely finish its term just before the Fourth of July weekend. At this writing, 18 opinions are likely outstanding. The Court has cleared the decks of nearly everything but big cases, with two exceptions. Here are the remaining cases still on the docket, plus some concluding thoughts.
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. 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. At argument, 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 outcomes. 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. Bonta: 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.
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?
Criminal Law and Procedure
Lange v. California: The last outstanding criminal case asks 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.
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.
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
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.
Odds and Ends
The two remaining cases of little interest beyond their narrow area of the law are Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, involving whether Alaska native villages are “Indian tribes” for COVID-relief purposes, and HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association, involving refinery permits. Don’t be surprised if one or both of those is handed down today, although both were only argued in April, and low-profile cases do sometimes slip to the end of the term if the Court is divided deeply on them.
Who Is Writing What
A popular parlor game is looking at which justices have not written majority opinions from a particular sitting (i.e., cases argued in a particular month). We also expect the justices to each carry something like an equal load of majority opinions, and Roberts thus far has published just two majority opinions, Justices Samuel Alito and Amy Coney Barrett have each published three, and everyone else on the Court has published at least four. Justice Thomas is the only justice who has published six.
The most-senior justice in the majority decides who writes an opinion. The chief justice always has seniority, but when Roberts is outnumbered, seniority would fall to Thomas and then Stephen Breyer to either write the decision or decide who else does. It is rare to find a majority on this Court that includes neither Roberts nor Thomas nor Breyer; Alito is fourth in line.
The opinion-writing calculus has been unsettled by the Court’s uneven argument calendar this year and the fact that Justice Barrett did not join the Court until a month into its term. For example, there is not much we can say about Johnson v. Guzman Chavez; it is the only case left from the January sitting, but five of the nine justices have not authored an opinion from January. By contrast, there are seven cases left from April, but only four justices who have yet to write in a case argued in April, so a few chambers are doing double duty.
That said, we can make a few educated guesses. For example, Fulton and Texas v. California are the only cases left that were argued in November. Three justices remain who have not written an opinion from November: Roberts, Alito, and Breyer. You never know, but the smart money would be on Roberts writing yet another Obamacare opinion. By contrast, it would be surprising if Breyer, rather than Alito, commands a majority in Fulton. Josh Blackman has taken a more detailed dive, and thinks we will see a lot of Alito in the big cases.
Stay tuned.