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Purdue Pharma, tax cases headline December argument session

artist's sketch of people in winter coats gathering in small groups on the front steps of the supreme court

The Supreme Court will hear oral argument on Dec. 4 in the challenge to the legality of the bankruptcy plan for Purdue Pharma, the manufacturer of the highly addictive opioid painkiller OxyContin. The argument in the Purdue Pharma case is one of eight cases scheduled for seven hours of oral argument in the court’s December argument calendar, which was released on Thursday morning.

The justices had indicated in August that the Purdue Pharma case would be slated for argument during their December argument session in a brief order that also put the bankruptcy plan on hold at the request of the U.S. Trustee, the division of the U.S. Department of Justice that oversees the administration of bankruptcy cases. The bankruptcy judge who confirmed the plan in 2021 called the confirmation a “bitter result,” because it would shield the Sackler family, the owners of the drug company, from lawsuits, but he said that the settlement was the only way to provide funding for communities to address the problems caused by opioids.

The justices will also hear oral argument on Dec. 5 in a challenge to the constitutionality of a federal law that required U.S. taxpayers who owned shares in foreign corporations to pay a one-time tax on their share of the corporation’s earnings, even if those earnings were reinvested in the corporation. A Washington state couple contends that the tax, known as the “mandatory repatriation tax,” violates the 16th Amendment to the Constitution, which gives Congress the power to impose an income tax. The Supreme Court’s cases interpreting that amendment, the couple argues, requires income to be distributed before it can be taxed; therefore, the mandatory repatriation tax is instead a direct tax, which the Constitution requires to be distributed among the states.  

The justices did not schedule Loper Bright Enterprises v. Raimondo, in which they will revisit their landmark ruling in Chevron v. Natural Resources Defense Council, holding that courts should defer to a federal agency’s interpretation of a statute as long as that interpretation is reasonable, for argument in December. As John Elwood noted in his Relist Watch column, the justices will consider another case involving the same issue – but from which Justice Ketanji Brown Jackson is not recused – at Friday’s conference.

Here’s the full list of cases scheduled for the December 2023 argument session:

Brown v. United States (consolidated with Jackson v. United States) (Nov. 27) – Whether the definition of “serious drug offense” in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect when the individual committed the firearm offense, or instead the schedules that were in effect at the time of the state drug offense.

McElrath v. Georgia (Nov. 28) – A challenge by a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother and guilty but mentally ill on another charge to the state’s ability to try him again on the charge on which he was acquitted.

Wilkinson v. Garland (Nov. 28) – Whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation.

SEC v. Jarkesy (Nov. 29) – A challenge to the SEC’s use of in-house judges.

Harrington v. Purdue Pharma (Dec. 4) – Whether the Bankruptcy Code gives a court the power to approve a release that extinguishes claims against third parties, without the consent of the individuals or entities holding the claims.

Moore v. United States (Dec. 5) – Whether a federal “mandatory repatriation tax” violates the 16th Amendment.

Muldrow v. St. Louis (Dec. 6) – What protections does Title VII of the Civil Rights Act of 1964 provide to employees who contend they were the victim of a discriminatory transfer?

Recommended Citation: Amy Howe, Purdue Pharma, tax cases headline December argument session, SCOTUSblog (Oct. 12, 2023, 9:29 PM),