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Cases on Boston Marathon bomber, CIA secrets headline October argument calendar

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Although the Supreme Court only recently finished releasing opinions from its 2020-21 term, it is already looking ahead to the new term that will begin this fall. On Tuesday the court released the schedule for the justices’ October argument session, which begins on Oct. 4 and runs through Oct. 13. The justices will hear oral argument in nine cases over five days (with a day off to observe a federal holiday on Oct. 11), including arguments in two high-profile cases involving the federal government’s efforts to reinstate the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev and the government’s assertion of the “state secrets” privilege in a case against former CIA contractors.

The court did not indicate whether it would hear oral argument by telephone, as it has done since May 2020 because of the COVID-19 pandemic, or whether it would instead return to the courtroom for in-person arguments, as several federal courts of appeals (including the U.S. Courts of Appeals for the 2nd, 11th and Federal Circuits) have done or plan to do in the fall.

Here’s the full list of cases scheduled for argument in the October session:

Mississippi v. Tennessee (Oct. 4): A long-running dispute between the two states over groundwater in an aquifer. A lower-court judge appointed by the justices to review the case recommended that Mississippi’s complaint be dismissed.

Wooden v. United States (Oct. 4): Whether thefts from 10 different units in a mini-storage facility, as part of the same crime spree, qualify as crimes that were committed on different occasions for purposes of the Armed Career Criminal Act, which requires enhanced sentences for repeat offenders who commit crimes with guns.

Brown v. Davenport (Oct. 5): In a case in which an inmate was convicted of premeditated murder after a trial at which he was shackled, the justices will weigh in on the standard for determining whether a constitutional error is “harmless” when a defendant is seeking federal post-conviction relief.

Servotronics v. Rolls-Royce (Oct. 5): Whether a district court’s discretion to order testimony or the production of documents “for use in a foreign or international tribunal” extends to discovery for use in a private foreign arbitration.

United States v. Zubaydah (Oct. 6): Whether the government can assert the “state secrets” privilege, which allows it to block the release of sensitive national-security information in litigation, in a case brought against former CIA contractors by a prisoner at Guantanamo Bay who alleges he was tortured at a CIA “dark site.”

Cameron v. EMW Women’s Surgical Center (Oct. 12): Whether Kentucky’s attorney general can intervene in a lawsuit to defend a state law that would ban the use of the “dilation and evacuation” method of performing abortions after the state’s health secretary declined to defend the law against the legal challenge. 

Hemphill v. New York (Oct. 12): Whether and under what circumstances a defendant “opened the door” to the use of evidence that would otherwise be barred by the Constitution’s confrontation clause.

United States v. Tsarnaev (Oct. 13): Whether to reinstate the death sentences that the U.S. Court of Appeals for the 1st Circuit threw out on the grounds that the district court should have asked potential jurors about media coverage of the case and should not have excluded evidence that Tsarnaev’s older brother, who placed one of the bombs, was involved in a separate triple murder.

Babcock v. Saul (Oct. 13): Whether pensions for “dual-status” technicians, who are paid as either federal civil servants or members of the military, depending on the jobs that they perform, are “a payment based wholly on service as a member of a uniformed service” for purposes of a provision of the Social Security Act aimed at ensuring that retirees who receive a pension from two different systems do not receive a “windfall.”

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Cases on Boston Marathon bomber, CIA secrets headline October argument calendar, SCOTUSblog (Jul. 13, 2021, 4:30 PM),