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Justices release February argument calendar

The Supreme Court released the calendar for its February sitting today. The justices will hear eight hours of oral argument over five days, including in two of the highest-profile cases of the term so far, involving factfinding in the dispute over the decision to add a question about citizenship to the census and a challenge to the constitutionality of a cross on public land.

The February sitting begins on February 19 with Department of Commerce v. U.S. District Court for the Southern District of New York, the census case. The case has its roots in the announcement, earlier this year, that the 2020 census would include a question about whether the individuals responding to the census are citizens of the United States. The Trump administration said that the question was intended to help the Department of Justice better enforce federal voting-rights laws, but the challengers (including a group of states, led by New York) argue that including the question would skew the results of the census because it would discourage households with undocumented immigrants from responding.

February’s oral argument will not focus on the legality of the citizenship question, but instead on a dispute over what evidence can be gathered for use in a trial on the citizenship question. The challengers wanted to take the depositions of Wilbur Ross, the Secretary of Commerce, and John Gore, the acting head of the civil rights division of the Department of Justice, and obtain evidence outside the official government record considered by Ross in making his decision; in late October, the justices blocked Ross’ deposition but allowed the Gore deposition and factfinding, and eventually the trial itself, to go forward.

On February 27, the justices will finish the February sitting with one hour of oral argument in two consolidated cases: American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association, challenges to a World War I memorial in the shape of a Celtic-styled Latin cross that stands in a traffic median in the Washington, D.C., suburbs. The challengers argue that the cross is an unconstitutional government endorsement of Christianity, while the state of Maryland and the American Legion counter that it is simply a secular war memorial. In addition to deciding the fate of the cross, the case could give the justices an opportunity to clarify when religious symbols are (or are not) permitted on public land.

Other cases scheduled for oral argument in February include:

Return Mail v. U.S. Postal Service (Feb. 20): Whether the government is a “person” who may petition to institute review proceedings under the Leahy-Smith America Invents Act

Mission Product Holdings v. Tempnology (Feb. 20): Whether a debtor-licensor’s “rejection” of a license agreement — which “constitutes a breach of such contract” under Section 365 of the Bankruptcy Code — terminates rights of the licensee that would survive the licensor’s breach under applicable non-bankruptcy law

Gray v. Wilkie (Feb. 25): Whether the U.S. Court of Appeals for the Federal Circuit has authority to review an interpretive rule reflecting the Department of Veterans Affairs’ definitive interpretation of its own regulation, even if the VA chooses to issue that rule through its adjudication manual

Manhattan Community Access v. Halleck (Feb. 25): Whether the private operator of a public-access television channel is a “state actor” – that is, someone who is acting on behalf of the government — who can therefore be sued for violations of the First Amendment

United States v. Haymond (Feb. 26): Whether a federal law that requires additional prison time for sex offenders who violate the terms of their supervised release is constitutional

Mont v. United States (Feb. 26): Whether a period of supervised release for one offense is paused under federal law while an inmate is held in custody awaiting trial, when that pretrial time in custody is later credited toward the inmate’s sentence for another offense

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in Mission Product Holdings, but the author of this post is not affiliated with the firm.]

Recommended Citation: Amy Howe, Justices release February argument calendar, SCOTUSblog (Dec. 21, 2018, 3:55 PM),