Briefly Mentioned :

Briefly Noted :

On Friday, the court released an order from the Dec. 4 conference. The justices granted a pair of consolidated cases regarding Medicaid work requirements for a combined one hour of oral argument.

Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
19-1302 Shinn v. Kayer Whether the U.S. Court of Appeals for the 9th Circuit violated 28 U.S.C. § 2254’s deferential standard, and employed a flawed methodology that the Supreme Court has repeatedly condemned, when it granted habeas relief based on a de novo finding that a Sixth Amendment violation had occurred.

Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
20-381 Hamilton County Job and Family Services v. Siefert (1) Whether the U.S. Court of Appeals for the 6th Circuit erred when it failed to conduct an individualized analysis of the actions of the Hamilton County Job and Family Services and other petitioners before blanketly rejecting their asserted defense of qualified immunity; (2) whether the 6th Circuit erred when it determined that, through a footnote, it was clearly established that a children’s services caseworker has an affirmative duty to protect parental due process rights when a child is hospitalized and no child custody proceedings have been initiated; and (3) whether the Supreme Court should resolve the circuit conflict on the important federal question of whether a private, non-profit hospital and private healthcare providers are state actors subject to claims under 42 U.S.C. § 1983 when they simply provide medical care and cooperate with a county Job and Family Services Department for the appropriate treatment of a suicidal minor.
20-319 Comcast Corp. v. Viamedia Inc. (1) Whether the U.S. Court of Appeals for the 7th Circuit erred in holding that a refusal-to-deal claim under Section 2 of the Sherman Act may proceed despite the presence of valid business justifications for the refusal, in direct conflict with Verizon Communications Inc. v. Law Offices of Curtis V. Trinko and decisions of the U.S. Courts of Appeals for the 2nd, 9th, 10th and 11th Circuits; and (2) whether the 7th Circuit erred in allowing a plaintiff to avoid the limitations on a Section 2 refusal-to-deal claim by reframing it as some other form of anticompetitive conduct, such as tying, in direct conflict with Pacific Bell Telephone Co. v. Linkline Communications Inc. and decisions of the U.S. Courts of Appeals for the 4th, 9th and 10th Circuits.
20-257 Chipotle Mexican Grill Inc. v. Scott Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
20-240 Kentucky v. White Whether a capital defendant can waive a claim of intellectual disability under Atkins v. Virginia and its progeny.
20-237 Old Republic Home Protection Co. v. Sparks Whether, in a case involving interstate commerce and a written contract with an arbitration provision that expressly requires application of the Federal Arbitration Act, a state arbitration statute that by its terms “shall not apply to . . . contracts which reference insurance” (a) qualifies as a “law enacted by [a] State for the purpose of regulating the business of insurance” under the McCarran–Ferguson Act, and (b) can support reverse preemption of the FAA based on an asserted impairment of such a state law.
20-222 Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System (1) Whether a defendant in a securities class action may rebut the presumption of classwide reliance recognized in Basic Inc. v. Levinson by pointing to the generic nature of the alleged misstatements in showing that the statements had no impact on the price of the security, even though that evidence is also relevant to the substantive element of materiality; and (2) whether a defendant seeking to rebut the Basic presumption has only a burden of production or also the ultimate burden of persuasion.
20-197 Trump v. Knight First Amendment Institute Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.
20-109 Schwab v. Fish (1) Whether the Constitution prohibits Kansas from requiring applicants to provide proof of U.S. citizenship when registering to vote; and (2) whether Section 5 of the National Voter Registration Act of 1993 prohibits Kansas from requiring motor-voter applicants to provide proof of citizenship when registering to vote.
20-96 U.S. v. Kane County, Utah Whether an advocacy organization’s environmental concerns qualify as an “interest” required by Rule 24(a)(2) of the Federal Rules of Civil Procedure for the organization to intervene as of right as a party defendant in a pending civil action, where no judicial relief could be granted against that organization in the action and its environmental concerns are unrelated to any claim or defense that the organization could itself assert in the action.
20-82 Kane County, Utah v. U.S. (1) Whether Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention as of right where the movant does not have a significant, cognizable interest in the lawsuit; and (2) whether the United States adequately represents its title, which is the only interest at issue in a quiet title suit.
20-60 Silver v. U.S. Whether a public official can be convicted of bribery absent proof of an agreed exchange with the alleged bribe payor, based solely on his unexpressed, unilateral state of mind when receiving a benefit; (2) whether a conviction for Hobbs Act extortion can be based on a theory of simple bribery; and (3) whether, if the government elects not to argue harmless error, a court of appeals may raise harmless error sua sponte, without providing the defendant any opportunity to be heard on the issue.

Featured Petitions

Docket Case Page Issue(s)
22O154 New Hampshire v. Massachusetts Whether Massachusetts' tax rule — which subjects nonresident earned income received for services performed outside Massachusetts to the state’s income tax — is unconstitutional confiscation.
20A96 Danville Christian Academy v. Beshear Whether the Supreme Court should temporarily suspend, pending appeal, an executive order by Kentucky Gov. Andrew Beshear that forces the closure of all public and private schools in the state – including religious schools – in light of the COVID-19 pandemic, because the order violates the Constitution's free exercise clause.
20A95 Robinson v. Murphy Whether the Supreme Court should temporarily suspend, pending appeal, COVID-19 restrictions instituted by New Jersey Gov. Philip Murphy — specifically, limiting houses of worship to 25% of capacity or a numerical cap, whichever is less, and allowing only “brief” or “momentary” removal of mandated masks in religious settings, while imposing less restrictive limits on secular activities — because the restrictions violate the First Amendment’s protections for the free exercise of religion as well as free speech and assembly.
20A63 Trump v. Vance Whether the Supreme Court should stay, pending appeal, a decision by the U.S. Court of Appeals for the 2nd Circuit upholding the dismissal of President Donald Trump's claims that a grand-jury subpoena for his financial records – which the justices declined to invalidate in July – is overbroad and was issued in bad faith.
20-746 South Bay United Pentecostal Church v. Newsom (1) Whether California Governor Gavin Newsom’s lockdown orders and reopening restrictions under the “Blueprint” framework, placing strict limitations, including closures, on all places of worship in California, violates South Bay’s First Amendment right to free exercise of religion; and (2) whether strict scrutiny is the proper standard of review for challenges to state and county restrictions upon free-exercise-of-religion rights during a pandemic, or whether Jacobson v. Massachusetts imposes extra limitations to the Supreme Court’s established line of free-exercise jurisprudence during a pandemic.
20-740 Bognet v. Boockvar (1) Whether the petitioners, four individual voters and one congressional candidate, have standing to raise their elections clause, electors clause and equal protection clause claims; (2) whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s paramount authority from the Constitution to “direct [the] Manner” for appointing electors for president and vice president and to prescribe “[t]he Times, Places and Manner” for congressional elections; (3) whether the Pennsylvania Supreme Court’s extension violates the petitioners’ right to have their votes counted without dilution and their right not to have their votes treated in an arbitrary and disparate manner under the equal protection clause; and (4) whether Purcell v. Gonzalez counsels against enjoining unconstitutional usurpations of authority to regulate federal elections by state courts and executive branch officials.
20-733 Rickmon v. U.S. Whether the sound of gunshots creates an emergency so that the “individualized suspicion” required by Terry v. Ohio attaches to anyone near the shots.
20-727 Facebook Inc. v. Davis Whether an internet content provider violates the Wiretap Act when a computer user’s web browser instructs the provider to display content on the webpage the user visits.
20-718 Reyes-Romero v. U.S. Whether, when a district court considers awarding attorney’s fees and costs to a prevailing criminal defendant, the Hyde Amendment inquiry into whether “the position of the United States was vexatious, frivolous, or in bad faith” encompass actions of non-prosecutor government employees underlying the criminal case.
20-701 Calvert v. Texas (1) Whether the Constitution prevents a state from allowing a defendant to represent himself in a capital case when the defendant is mentally competent to waive counsel but is not mentally competent to conduct trial proceedings in his capital trial; (2) whether the Eighth Amendment prohibits the state of Texas from sentencing petitioner James Calvert to death on a finding of future dangerousness based in substantial part on graphic testimony and evidence about an attack on a prison official committed by another inmate in another prison at another time, having no connection to Calvert; and (3) whether the constitutional violation resulting from the trial court’s direction to administer a 50,000- volt electric shock to Calvert during his trial to “enforce decorum” because Calvert failed to stand when responding to a question from the court constitutes structural error.
20-695 Piersing v. Domino’s Pizza Franchising LLC Whether, in the context of a form employment agreement, providing that a particular set of rules will govern arbitration proceedings is, without more, “clear and unmistakable evidence” of the parties’ intent to have the arbitrator decide questions of arbitrability.
20-690 Han v. U.S. Whether a court may consider factors other than the parties’ intent in determining whether a transfer of funds constitutes a non-taxable loan under the Internal Revenue Code.
20-685 Trump v. Sierra Club (1) Whether the Sierra Club has a cognizable cause of action to obtain review of the secretary of defense’s compliance with 10 U.S.C. § 2808 in reprioritizing appropriated but unobligated funds for the military construction projects involving border barriers being authorized; and (2) whether the secretary exceeded his statutory authority under Section 2808 in reprioritizing appropriated funds for the military construction projects following the president’s declaration of a national emergency requiring the use of the armed forces at the southern border.
20-666 Barr v. City and County of San Francisco, California (1) Whether the Department of Justice has statutory authority to impose notice and access conditions on grantees that accept Edward Byrne Memorial Justice Assistance Grant awards, a program that provides millions of dollars in financial assistance to law enforcement; and (2) whether the department may withhold Byrne JAG funds from the city and county of San Francisco, California for noncompliance with 8 U.S.C. 1373, which generally bars state and local governments from restricting the sharing of “information regarding the citizenship or immigration status ... of any individual” with federal immigration authorities.
20-662 Trump v. Useche (1) Whether the relief entered — a three-judge district court declared that the president's memorandum, which instructed the commerce secretary to include in the report on the decennial census information about people living in the country illegally, was unlawful and enjoined the secretary from including the information in his report — satisfies the requirements of Article III of the Constitution; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.
20-660 Employer Solutions Staffing Group, LLC v. Scalia (1) Whether the Supreme Court’s willfulness standard, which requires a showing that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute,” may be satisfied merely by a showing that a non-compliant employer was on notice of its general requirements under the Fair Labor Standards Act but had no actual knowledge of or reason to believe that it was not complying with any requirement of the FLSA; (2) whether the Employer Solutions Staffing Group was liable for overtime wages when there was no evidence that they knew or should have known that overtime wages were not properly being paid by a low-level employee; and (3) whether the Employer Solutions Staffing Group may seek contribution under the FLSA from other joint-employers for joint and several liability for an overtime wage award.
20-651 Cook Children’s Medical Center v. T.L. Whether, despite the lack of any state involvement, participation, coercion, input or control of any kind, a private hospital is nevertheless a state actor because state law creates a safe harbor for those who conduct a private internal review to determine private medical care in a private facility.
20-641 LSP Transmission Holdings, LLC v. Sieben Whether a state law that grants an express preference to entities with an existing in-state presence to build facilities serving a distinctly interstate market discriminates against interstate commerce, notwithstanding that a few of the preferred in-state incumbents are headquartered elsewhere.
20-639 Calvary Chapel Dayton Valley v. Sisolak (1) Whether Nevada Governor Steve Sisolak’s favoring of secular over religious gatherings — for example, under Directive 021, casinos, restaurants, indoor amusements parks, bowling alleys, water parks, pools, arcades and more are subject to a 50 percent- fire-code-capacity limit, but places of worship are limited to no more than 50 people, whatever their facilities’ size — violates the free exercise clause; and (2) whether the governor’s favoring of secular over religious gatherings violates the free speech and assembly clauses.
20-637 Hemphill v. New York Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
20-631 Hologic Inc. v. Minerva Surgical Inc. Whether an assignor of a patent may circumvent the doctrine of assignor estoppel by challenging the validity of the assigned patent in administrative proceedings before the Patent Office, and then using the Patent Office’s finding of invalidity to collaterally estop the assignee from relying on the patent in infringement litigation in district court.
20-622 Amazon.com Inc. v. Rittmann Whether the Federal Arbitration Act’s exemption for classes of workers engaged in foreign or interstate commerce prevents the act’s application to local transportation workers who, as a class, are not engaged to transport goods or passengers across state or national boundaries.
20-609 Gannett Co. v. Quatrone Whether a plaintiff adequately pleads breach of the duties of prudence and diversification solely by alleging that fiduciaries permitted participants in a defined contribution plan to choose, from an adequately diversified menu of investment options, to invest in an undiversified single-stock fund.
20-603 Torres v. Texas Department of Public Safety Whether Congress has the power to authorize suits against nonconsenting states pursuant to its constitutional war powers.
20-602 Clifford v. Trump Whether the Texas Citizens’ Participation Act applies in federal-court diversity-jurisdiction cases under Erie R.R. Co. v. Tompkins.
20-601 Cameron v. EMW Women’s Surgical Center, P.S.C. (1) Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law; and (2) whether, if so, the Supreme Court should vacate the judgment below and remand for further consideration in light of June Medical Services, L.L.C. v. Russo.
20-588 Wainwright v. Sexton (1) Whether federal courts can award habeas relief based on errors in state-postconviction proceedings; and (2) whether, if errors in state-postconviction proceedings sometimes provide a basis for habeas relief, a habeas petitioner can win relief based on such errors even if he did not diligently pursue the proceedings in which the errors occurred.
20-579 Tabb v. U.S. (1) Whether courts may defer to Sentencing Guidelines commentary without first determining that the underlying guideline is genuinely ambiguous; and (2) whether the U.S. Sentencing Commission can use commentary to rewrite a guideline that applies to “prohibit[ions]” on the “distribution” of drugs to apply to conspiracies and attempts to distribute drugs.
20-574 Scarnati v. Pennsylvania Democratic Party (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
20-564 Carlisle v. Kentucky Whether the Fourth Amendment permits law enforcement to prolong every traffic stop by performing a criminal history check, or whether the Fourth Amendment requires a case-by-case approach that permits such checks when the government offers some evidence that the measure actually related to officer safety.
20-561 Trump v. City of San Jose, California (1) Whether the relief entered — a three-judge district court declared that the president's memorandum, which instructed the secretary of the Department of Commerce to include within his census report information enabling the president to implement a policy decision to exclude people living in the country illegally from the base population number for congressional apportionment, was unlawful and enjoined the secretary from including the information in his report — satisfies the requirements of Article III of the Constitution; and (2) whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.
20-554 Smith v. McKinney Whether a court determining if a prisoner has suffered an “atypical and significant” hardship must consider factors such as the duration of and justification for the particular conditions imposed (as several courts of appeals have held), or whether it can confine its analysis to a comparison of the conditions of other prison populations (as the court below held, joining several other courts of appeals).
20-546 Michigan v. Mathews Whether Miranda v. Arizona is satisfied when a suspect in custody is advised at the beginning of an interrogation that they have the right to an attorney, but is not explicitly advised that they are entitled to the attorney’s presence before and during interrogation.
20-544 Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation Whether Alaska Native regional and village corporations are “Indian tribes” under the Indian Self-Determination and Education Assistance Act and therefore are eligible for emergency-relief funds under Title V of the Coronavirus Aid, Relief, and Economic Security Act.
20-543 Mnuchin v. Confederated Tribes of the Chehalis Reservation Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the Coronavirus Aid, Relief, and Economic Security Act.
20-542 Republican Party of Pennsylvania v. Boockvar (1) Whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s plenary authority to “direct [the] Manner” for appointing electors for president and vice president under Article II of the Constitution, as well as the assembly’s broad power to prescribe “[t]he Times, Places, and Manner” for congressional elections under Article I, when the court issued a ruling requiring the state to count absentee ballots that arrive up to three days after Election Day as long as they are not clearly postmarked after Election Day; and (2) whether that decision is preempted by federal statutes that establish a uniform nationwide federal Election Day.
20-539 Oregon v. Azar (1) Whether the Department of Health and Human Services' final rule — which prohibits Title X providers from communicating certain abortion-related information to their patients and requires physical separation of Title X-funded care from healthcare facilities that provide abortion services or certain abortion-related information — violates appropriations statutes requiring that “all pregnancy counseling” in the Title X program “shall be nondirective”; (2) whether the final rule violates Section 1554 of the Affordable Care Act, which prohibits HHS from promulgating “any regulation” that creates “unreasonable barriers” to obtaining appropriate medical care, impedes “timely access” to such care, interferes with patient-provider communications “regarding a full range of treatment options,” restricts providers from disclosing “all relevant information to patients making health care decisions,” or violates providers’ ethical standards; and (3) whether the final rule is arbitrary and capricious, in violation of the Administrative Procedure Act, including by failing to respond adequately to concerns that (a) the rule requires medical professionals to violate medical ethics and (b) the counseling restrictions and physical-separation requirement impose significant costs and impair access to care.
20-536 Episcopal Church v. Episcopal Diocese of Fort Worth (1) Whether the First Amendment requires courts to enforce express trusts in church governing documents (as some jurisdictions hold, in line with Jones v. Wolf's first safeguard), or whether state law may render such trusts unenforceable (as others hold); (2) whether the First Amendment requires courts to defer to churches on questions of polity (as some jurisdictions hold, in line with Jones’ second safeguard), or whether courts may apply state law to determine the structure of a church (as others hold); and (3) whether the neutral-principles approach may constitutionally be applied — either prospectively or retroactively — to resolve church-property disputes.
20-535 Bates v. U.S. Whether a district court that chooses to conduct a resentencing under Section 404 of the First Step Act is prohibited from considering a defendant’s current, legally correct Sentencing Guidelines range.
20-534 All Saints’ Episcopal Church (Fort Worth) v. Episcopal Diocese of Fort Worth Whether the Texas Supreme Court’s decision awarding the sanctuary and rectory of the petitioner, All Saints’ Episcopal Church (Fort Worth), to a dissident faction in contravention of the will of petitioner’s parishioners and an express-trust provision is consistent with the free exercise and establishment clauses.
20-520 American Athletic Conference v. Alston Whether the Sherman Act authorizes a court to subject the product-defining rules of a joint venture to full Rule of Reason review, and to hold those rules unlawful if, in the court’s view, they are not the least restrictive means that could have been used to accomplish their procompetitive goal.
20-518 Mastin v. U.S. Whether Michigan v. Summers authorizes police officers executing an arrest warrant to detain a bystander without individualized suspicion.
20-512 National Collegiate Athletic Association v. Alston Whether the U.S. Court of Appeals for the 9th Circuit erroneously held, in conflict with decisions of other circuits and general antitrust principles, that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law.
20-510 IQVIA Inc. v. Mussat Whether a district court with jurisdiction coextensive with a state court in the district can exercise personal jurisdiction over absent class members’ claims as part of a putative class action when the court concededly could not exercise personal jurisdiction over the absent class members’ claims if they had been brought in individual suits.
20-507 Mays v. Hines Whether the U.S. Court of Appeals for the 6th Circuit’s decision — invalidating Anthony Hines' decades-old murder conviction and death sentence on the ground that a state court unreasonably applied Strickland v. Washington, when it concluded that Hines suffered no prejudice from any deficiencies in his counsel’s performance at the guilt and penalty phases of his capital trial — conflicts with the Supreme Court’s precedents governing claims of ineffective assistance of counsel under the Antiterrorism and Effective Death Penalty Act of 1996.
20-499 Hull v. Rockwell Whether a debtor may keep a state-law homestead exemption inside bankruptcy, notwithstanding that the proceeds would be subject to attachment and execution outside bankruptcy because the debtor sold the home and the exemption expired under applicable state law.
20-490 Freeman v. Wainwright Whether the statute of limitations for filing a habeas petition begins when the new judgment entered following resentencing becomes final.
20-489 Bess v. U.S. (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess' case for additional factfinding.
20-486 Ogle v. Ohio Civil Service Employees Association Whether there is a “good faith defense” to 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional.
20-481 GE Capital Retail Bank v. Belton Whether provisions of the Bankruptcy Code providing for a statutorily enforceable discharge of a debtor’s debts impliedly repeal the Federal Arbitration Act.
20-478 CBX Resources, L.L.C. v. ACE American Insurance Co. Whether the Supreme Court should abolish the U.S. Court of Appeals for the 5th Circuit’s judicially created “finality trap” and resolve the conflict among the U.S. Courts of Appeals regarding the finality or non-finality under 28 U.S.C. § 1291 of a judgment when a party has dismissed — without prejudice — remaining unadjudicated claims.
20-472 HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Association Whether, in order to qualify for a hardship exemption under Section 7545(o)(9)(B)(i) of the Renewable Fuel Standards, a small refinery needs to receive uninterrupted, continuous hardship exemptions for every year since 2011.
20-464 Rosemond v. U.S. Whether an attorney violates a criminal defendant’s Sixth Amendment right to autonomy by admitting, over the defendant’s objection, that the defendant ordered a shooting of the victim, thereby conceding the actus reus of the crime.
20-457 MarketGraphics Research Group Inc. v. Berge (1) Whether the Bankruptcy Code’s “willful and malicious injury” exception — which exempts from discharge “any debts ... for willful and malicious injury by the debtor to another entity or to the property of another entity” — applies only when a debtor has a subjective intent to injure (as five circuits hold), or whether it may also be satisfied by conduct that objectively has a substantial certainty of causing injury (as three circuits hold); and (2) whether the “willful and malicious injury” exception establishes a unitary standard requiring only “actual intent to cause injury” (as five circuits hold), or whether it establishes a two-pronged test requiring both “actual intent to cause injury” and conduct “in conscious disregard of one’s duties or without just cause or excuse” (as six circuits hold).
20-454 Azar v. Mayor and City Council of Baltimore (1) Whether the Department of Health and Human Services' rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decisionmaking.
20-450 Wolf v. Cook County, Illinois (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in Immigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Security's final rule interpreting the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.
20-449 Department of Homeland Security v. New York (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in Immigration and Nationality Act, and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the U.S. Department of Homeland Security's final rule interpreting the statutory term “public charge” and establishing a framework by which DHS personnel are to assess whether an alien is likely to become a public charge; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.
20-444 U.S. v. Gary Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.
20-443 U.S. v. Tsarnaev (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
20-440 Minerva Surgical Inc. v. Hologic Inc. Whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.
20-437 U.S. v. Palomar-Santiago Whether a defendant, charged with unlawful reentry into the United States following removal, automatically satisfies the prerequisites to asserting the invalidity of the original removal order as an affirmative defense solely by showing that he was removed for a crime that would not be considered a removable offense under current circuit law, even if he cannot independently demonstrate administrative exhaustion or deprivation of the opportunity for judicial review.
20-429 American Medical Association v. Azar (1) Whether the Department of Health and Human Services' rule for the Title X family planning program — which prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion-related information but requiring information about non-abortion options — is arbitrary and capricious; (2) whether the rule violates the Title X appropriations act, which requires that “all pregnancy counseling” under Title X “shall be nondirective”; and (3) whether the rule violates Section 1554 of the Affordable Care Act, which requires that HHS “shall not promulgate any regulation” that harms patient care in any one of six ways, including by “interfer[ing] with communications” between a patient and her provider.
20-426 Huntress v. U.S. (1) Whether the discretionary-function exception to the Federal Tort Claims Act’s waiver of sovereign immunity for United States employees’ negligent or wrongful conduct nullifies the law-enforcement proviso that clarifies the act’s provisions “shall apply to any claim” for “abuse of process[ ] or malicious prosecution” (as four circuits have now held), limits that proviso (as one circuit has held) or yields to it (as one circuit has held); and (2) whether the discretionary-function exemption applies when government officials act outside their jurisdiction.
20-422 Lee v. Ohio Education Association (1) Whether 42 U.S.C. § 1983 provides a “good-faith defense” to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct; and (2) whether the defenses of qualified immunity or “good faith” allow a defendant who takes another person’s money or property in violation of the Constitution — but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional — to keep that money or property when the owner sues for its return.
20-405 City of Miami Gardens, Florida v. Wells Fargo & Co. Whether, by raising standing sua sponte at oral argument in an appeal concerning a partial summary-judgment decision focused solely on the statute of limitations and when discovery was limited to that purpose, the U.S. Court of Appeals for the 11th Circuit’s decision dismissing this case conflicts with the Supreme Court’s binding precedent in Alabama Legislative Black Caucus v. Alabama and violates due process in conflict with decisions of the Supreme Court and sister circuits.
20-402 Richardson v. Omaha School District Whether, for attorneys’ fees actions under the Individuals with Disabilities Education Act, courts should borrow years-long state statutes of limitations because fees actions are analogous to independent lawsuits separate from the underlying merits of the IDEA administrative proceedings, or, in contrast, courts should borrow far shorter periods designed for judicial review of IDEA administrative merits decisions because fees actions are merely ancillary to the underlying educational dispute.
20-400 Avery v. U.S. Whether a state burglary statute that disjunctively lists places that may be burgled under the statute is divisible for purposes of a sentence enhancement under the Armed Career Criminal Act, even though the statutory list is not exclusive and does not require the jury to agree that the defendant burgled any particular listed place.
20-397 Barr v. Portillo Martinez Whether the government must provide the written notice required to trigger the stop-time rule in a single document.
20-382 Guam v. U.S. (1) Whether a settlement that is not under the Comprehensive Environmental Response, Compensation, and Liability Act can trigger a contribution claim under CERCLA Section 113(f)(3)(B); and (2) whether a settlement that expressly disclaims any liability determination and leaves the settling party exposed to future liability can trigger a contribution claim under CERCLA Section 113(f)(3)(B).
20-380 Idenix Pharmaceuticals LLC v. Gilead Sciences Inc. (1) Whether, as the U.S. Court of Appeals for the Federal Circuit has held, a genus claim is not enabled “as a matter of law” if it encompasses a large number of compounds — or whether, as the Supreme Court has recognized, enablement is a context-specific jury question; and (2) whether, as the Federal Circuit has held, 35 U.S.C. § 112(a) contains a separate “possession” requirement — or whether, as the statute provides, Section 112(a) sets forth a single substantive requirement of “a written description of the invention” sufficient “to enable any person skilled in the art … to make and use the same.”
20-365 Jack Daniel’s Properties Inc. v. VIP Products LLC (1) Whether a commercial product using humor is subject to the same likelihood-of-confusion analysis applicable to other products under the Lanham Act, or must receive heightened First Amendment protection from trademark-infringement claims, where the brand owner must prove that the defendant’s use of the mark either is “not artistically relevant” or “explicitly misleads consumers”; and (2) whether a commercial product’s use of humor renders the product “noncommercial” under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Lanham Act.
20-356 Barr v. Banuelos-Galviz Whether the government must provide the written notice required to trigger the stop-time rule, 8 U.S.C. § 1229b(d)(1)(A), in a single document.
20-351 Carey v. Throwe (1) Whether a qualified retired law enforcement officer who meets the statutory requirements to carry a weapon under the Law Enforcement Officer’s Safety Act has an enforceable right under 42 U.S.C. § 1983; and (2) whether social media posts “outing” a police officer’s misogynistic behavior and his making light of gun violence and gun control, raises an issue of public concern as a matter of law.
20-334 City of San Antonio, Texas v. Hotels.com, L.P. Whether, as the U.S. Court of Appeals for the 5th Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Fed. R. App. P. 39(e).
20-331 Trump v. District of Columbia (1) Whether a writ of mandamus is appropriate because, contrary to the holding of the U.S. Court of Appeals of the 4th Circuit, the district court’s denial of the president’s motion to dismiss was clear and indisputable legal error; and (2) whether a writ of mandamus is appropriate, contrary to the holding of the 4th Circuit, when the district court’s refusal to grant the president’s motion to certify an interlocutory appeal was a clear abuse of discretion under 28 U.S.C. § 1292(b).
20-330 Trump v. Citizens for Responsibility and Ethics in Washington Whether plaintiffs who claim to compete with businesses in which the president of the United States has a financial interest can seek redress in an Article III court to enforce the foreign and domestic emoluments clauses of the U.S. Constitution against the president.
20-326 Stein v. U.S. Whether the due process clause excuses the government’s knowing use of false testimony in a criminal prosecution so long as the government divulged evidence during discovery indicating that the testimony was false.
20-322 Barr v. Aleman Gonzalez Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community.
20-317 Chavis v. Delaware Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.
20-315 Sanchez v. Wolf Whether, under 8 U.S.C. § 1254a(f)(4), a grant of temporary protected status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.
20-304 World Programming Ltd. v. SAS Institute Inc. (1) Whether the All Writs Act or Federal Rule of Civil Procedure 69 permits federal courts to fashion novel remedies to enforce federal money judgments, such as an injunction that forbids the judgment debtor from licensing its software for use in the U.S. until the judgment is paid, to “incentivize” payment; and (2) whether and under what circumstances federal courts may invoke the All Writs Act to enjoin enforcement of a foreign money judgment, even within the nation that issued the judgment.
20-303 U.S. v. Vaello-Madero Whether Congress violated the equal-protection component of the due process clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.
20-301 Hennis v. U.S. (1) Whether the offenses for which the petitioner, Timothy Hennis, was tried and acquitted in state court constituted offenses “for which [he] cannot be tried in the courts of . . . any State”; (2) whether 10 U.S.C. § 803(a) is unconstitutional insofar as it allowed the government to court-martial Hennis only because the double jeopardy clause would have barred his retrial in a state court; and (3) whether the Constitution bars the military from subjecting servicemembers to capital trials for non-military offenses.
20-298 El Paso County, Texas v. Trump (1) Whether the executive branch’s expenditure of $2.5 billion on border-wall construction violates the Consolidated Appropriations Act and thus the Constitution's appropriations clause; and (2) whether the Department of Defense’s transfer of $2.5 billion between agency appropriations accounts violates Section 8005 of the DOD Appropriations Act and thus the Constitution's appropriations clause.
20-293 Bristol-Myers Squibb Co. v. New Mexico, ex rel. Balderas (1) Whether the federal government or a state government, as the real party in interest in a qui tam action brought in its name and litigated to judgment with its full knowledge, is bound by a final judgment on the merits when that government has declined to intervene; and (2) whether a state court may establish a novel “public policy” exception to the res judicata effect of a concededly final federal judgment when that exception runs to the exclusive benefit of a single party, the government.
20-283 Bass v. Greve (1) Whether Officer Austin Bass had probable cause to arrest under the Fourth Amendment when the suspect admitted to trying to enter a closed and locked building, breaking a door handle in the process, but offered a questionable claim of an innocent mental state when explaining his behavior to Bass; and (2) whether, even if there was no probable cause to arrest Patrick Greve for any offense, Bass was entitled to qualified immunity because the law was not clearly established in this regard.
20-276 Gibson v. Securities and Exchange Commission Whether Congress has implicitly stripped federal district courts of jurisdiction to adjudicate separation-of-powers challenges to the authority of the Security and Exchange Commission's administrative law judges to preside over enforcement proceedings.
20-272 Maryland v. Rogers Whether the Court of Appeals of Maryland departed from the Supreme Court’s decisions in Smith v. Doe and Apprendi v. New Jersey in holding, contrary to the decisions of numerous federal courts of appeals and state supreme courts, that sex offender registration constitutes “punishment” within the meaning of the Sixth and 14th Amendments to the United States Constitution, and that, as a result, any fact necessary for placement on the sex offender registry, such as the victim’s age, must be determined beyond a reasonable doubt during the criminal proceeding, even if that fact is not an element of the criminal offense that is the basis for registration.
20-256 Jordan v. U.S. Whether each separate conviction under 18 U.S.C. § 924(c)(1) — under which “any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” commits an offense — requires only a separate predicate crime of violence or drug trafficking offense, as the U.S. Courts of Appeals for the 3rd, 4th and 8th Circuits have held, or also requires a separate act of using, carrying or possessing a firearm, as the U.S. Courts of Appeals for the 2nd, 5th, 6th, 7th, 10th and District of Columbia Circuits have held.
20-255 Mahanoy Area School District v. B.L. Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.
20-251 Gipson v. Louisiana Whether the Supreme Court’s decision in Ramos v. Louisiana applies to cases on state collateral review, when the state follows the retroactivity framework established in Teague v. Lane.
20-250 Poole v. Florida (1) Whether the Florida Supreme Court erred in reinstating a capital sentence issued under Florida’s pre-2016 scheme, in contravention of the Supreme Court’s holding in Hurst v. Florida that such sentences violate the Sixth Amendment because the jury did not make the requisite death-eligibility findings, including that aggravating circumstances outweigh mitigating circumstances; and (2) whether the Florida Supreme Court violated the Eighth Amendment in reinstating a capital sentence lacking a unanimous jury recommendation of death and based on a guilt-phase jury finding rendered without awareness of the consequences for capital sentencing.
20-234 Immigration and Customs Enforcement v. Padilla (1) Whether 8 U.S.C. § 1225(b)(l)(B)(ii) — which authorizes the government to detain aliens who are placed in expedited removal proceedings, but who then establish a credible fear of persecution based on a protected ground — violates the due process clause of the Fifth Amendment because it contains no provision authorizing bond hearings; and (2) whether 8 U.S.C. § 1252(f)(1) prohibits lower courts from granting classwide injunctions against the operation of 8 U.S.C. §§ 12211232.
20-216 Bose v. Bea Whether a school that expels a student based on charges and evidence motivated by sex bias denies that student educational opportunities “on the basis of sex.”
20-202 Massie v. Mena (1) Whether, under the particular facts and circumstances of this case, the U.S. Court of Appeals for the 9th Circuit erred in finding that Robert Massie’s actions constituted an excessive use of force in violation of the Fourth Amendment; and (2) whether, regardless of the answer to the first issue, the district court and 9th Circuit nonetheless erred in denying qualified immunity to Massie when it was not clearly established at the time of the incident (or now) that his actions constituted an excessive use of force in violation of the Fourth Amendment.
20-183 Stair v. Jackson (1) Whether the U.S. Court of Appeals for the 8th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to the petitioner, Billy Stair, based upon the absence of a constitutional violation by assessing the reasonableness of each of three Taser activations over a 19-second period, instead of assessing the reasonableness of Stair’s conduct in light of the totality of the circumstances; and (2) whether the 8th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Stair.
20-136 Dozier v. U.S. Whether an offense is “punishable by imprisonment for more than one year” when the maximum term permitted by the applicable statutory sentencing scheme at the time of conviction is one year or less.
20-132 The Moodsters Company v. The Walt Disney Company (1) Whether originality is the proper standard to determine character copyrightability; and (2) whether copyrightability — for a character or any work — is a question of fact, or involves questions of fact, ill-suited for resolution on a Rule 12 motion.
20-120 Juarez v. Colorado Whether, when there is no dispute that a guilty plea will trigger mandatory deportation pursuant to federal law, defense counsel must advise a noncitizen-defendant that the plea will result in deportation as a matter of law, or whether it is sufficient for defense counsel to caution that the plea could make the noncitizen-defendant “deportable” or that it will “probably” result in deportation.
20-101 Harris v. Maryland Whether, when preindictment delay has caused actual prejudice to the accused’s ability to defend himself, the due process clause requires that the defendant prove that the delay was driven by an improper prosecutorial motive, or that courts balance the particular prejudice to the defendant against the particular reasons (or lack thereof) for the delay.
20-97 Massachusetts Lobstermen’s Association v. Ross (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Act’s “smallest area” requirement, including designating ocean monuments larger than most states, by vaguely referencing “resources” or an “ecosystem” as the objects to be protected.
20-83 Jones v. Kalbaugh (1) Whether the U.S. Court of Appeals for the 10th Circuit improperly focused on the knowledge and intentions of the suspect, rather than the facts knowable to the officers, in reversing the district court’s grant of qualified immunity in an excessive force case; and (2) whether the 10th Circuit analyzed clearly established law at too high a level of generality by relying on general statements of Fourth Amendment excessive force principles rather than identifying a case in which officers acting under similar circumstances were held to have violated the Fourth Amendment.
20-47 Lebamoff Enterprises Inc. v. Whitmer Whether a state liquor law that allows in-state retailers to ship wine directly to consumers, but prohibits out-of-state retailers from doing so, is invalid under the nondiscrimination principle of the commerce clause or is a valid exercise of the state’s 21st amendment authority to regulate the sale of alcoholic beverages within its borders.
19-1441 City of Austin, Texas v. Paxton Whether, under Ex parte Young, a state official is a proper defendant in a federal declaratory judgment challenge under the supremacy clause to the validity of a self-enforcing state statute, if the official with authority to enforce the statute has not yet overtly threatened enforcement.
19-1411 Rupert v. Janvey Whether the standing requirement of Article III limits receivers to bringing claims that are coextensive with the receivership estate and thus whether Article III precludes receivers from bringing, settling and barring claims of third parties against non-receivership entities.
19-1402 Zacarias v. Janvey Whether a district court in a receivership action has Article III jurisdiction to bar investor claims for individual injuries when the receiver lacks standing to bring those claims himself due to the lack of an injury to the receivership estate.
19-1385 Box v. Henderson Whether a state, consistent with the 14th Amendment due process and equal protection clauses, may adopt a biology-based birth-certificate system that includes a rebuttable presumption that a birth mother’s husband — but not wife — is the child’s biological parent.
19-1194 Kuang v. Department of Defense (1) Whether courts can evade their constitutional and statutory duty to review military decisions under the so-called “Mindes test,” from the U.S. Court of Appeals for the 5th Circuit's decision in Mindes v. Seamen, or whether claims seeking injunctive relief against the military are reviewable so long as they do not present a nonjusticiable political question or otherwise fall outside the court’s subject-matter jurisdiction; and (2) whether a Department of Defense policy that requires all legal permanent resident enlistees—but not their U.S.- citizen counterparts—to suffer unjustified delays before beginning their military careers is judicially reviewable.
19-793 Institute for Free Speech v. Becerra (1) Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally protected speech, constitutes a First Amendment injury; and (2) whether official demands for membership or donor information outside the electoral context should be reviewed under strict or exacting scrutiny.
19-255 Thomas More Law Center v. Becerra (1) Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; and (2) whether California’s disclosure requirement violates charities’ and their donors’ freedom of association and speech facially or as applied to the Thomas More Law Center. CVSG: 11/24/2020.
19-251 Americans for Prosperity Foundation v. Becerra Whether the exacting scrutiny the Supreme Court has long required of laws that abridge the freedoms of speech and association outside the election context – as called for by NAACP v. Alabama ex rel. Patterson and its progeny – can be satisfied absent any showing that a blanket governmental demand for the individual identities and addresses of major donors to private nonprofit organizations is narrowly tailored to an asserted law-enforcement interest. CVSG: 11/24/2020.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
22O153 Texas v. California Whether California’s sanctions against Texas and Texans – prohibiting state-funded or state-sponsored travel to Texas because Texas protects the religious freedom of faith-based child welfare providers within its borders – are born of religious animus and violate the Constitution’s privileges and immunities clause, interstate commerce clause and guarantee of equal protection.
22O152 Montana and Wyoming v. Washington Whether Washington state’s denial of port access to ship Montana and Wyoming coal to foreign markets violates the commerce clause.
20-219 Cummings v. Premier Rehab Keller, P.L.L.C. Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress.
20-28 PricewaterhouseCoopers LLP v. Laurent Whether the U.S. Court of Appeals for the 2nd Circuit improperly combined parts of two separate remedial sections under the Employee Retirement Income Security Act of 1974, interpreting Section 502(a)(3) to permit reformation of a plan solely as a preparatory step to ultimate relief under Section 502(a)(1)(B) in the form of money damages.
20-8 Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held, in conflict with the decisions of four other U.S. courts of appeal and of the Supreme Court, that the presumption against preemption of state law does not apply to creditor-rights claims once federal bankruptcy law has been invoked; (2) whether the 2nd Circuit correctly held that laws allowing creditors to avoid certain fraudulent transfers, which long have existed in every state, are preempted because they are an obstacle to the “purposes and objectives” of 11 U.S.C. § 546(e), notwithstanding the Supreme Court’s unanimous holding in Merit Management Group, LP v. FTI Consulting Inc. that Section 546(e) does not have the purpose that the 2nd Circuit ascribed to it; and (3) whether, notwithstanding the holding in Merit that Section 546(e) does not exempt fraudulent transfers from avoidance merely because a financial institution acted as a conduit, the 2nd Circuit correctly held that Section 546(e) does exempt certain fraudulent transfers from avoidance if executed via a bank as a conduit, on the ground, left open in Merit, that the bank’s customer is itself a “financial institution.”
19-1401 Hughes v. Northwestern University Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1104(a)(1)(B).
19-1143 FMC Corp. v. Shoshone-Bannock Tribes (1) Whether the U.S. Court of Appeals for the 9th Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever an exception under Montana v. United States is met, or whether, as the U.S. Courts of Appeals for the 7th and 8th Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe’s inherent authority to set conditions on entry, preserve tribal self-government or control internal relations; and (2) whether the 9th Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.
19-1039 PennEast Pipeline Co. v. New Jersey Whether the Natural Gas Act delegates to Federal Energy Regulatory Commission certificate-holders the authority to exercise the federal government’s eminent-domain power to condemn land in which a state claims an interest.
19-648 CACI Premier Technology Inc. v. Al Shimari Whether an order denying a federal contractor’s claim of derivative sovereign immunity is an immediately appealable final order under the collateral-order doctrine. CVSG: 8/26/2020.
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