Editor's Note :

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We’re hosting a symposium on the Roberts court and the First Amendment’s religion clauses. In a series of six essays, scholars and commentators will analyze major decisions from the 2019-20 term and look to the future of the court’s religion jurisprudence. Click to follow along.

Petitions We’re Watching

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Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
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.
19-1388 Small v. Memphis Light, Gas & Water Whether Trans World Airlines Inc. v. Hardison, which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets 42 U.S.C. § 2000e(j) – which specifies that “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” – and should be overruled.
19-1380 Olson v. Amatuzio Whether a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is barred by Heck v. Humphrey from pursuing a Section 1983 claim challenging the validity or duration of his incarceration.
19-1307 Thomas v. Barnes Whether the U.S. Court of Appeals for the 4th Circuit misapplied the Supreme Court's precedent in Brecht v. Abrahamson by granting habeas relief when there was no evidence that a juror's contact with a third party had a substantial and injurious effect on the jury's verdict.
19-1301 Bovat v. Vermont Whether a police officer can access “semiprivate” areas within a home’s curtilage to conduct an investigation without a warrant.
19-1285 Lea v. U.S. (1) Whether the federal statute, regulations and contractual provisions governing the transfer and redemption of U.S. savings bonds preempt the state of Arkansas from obtaining ownership of matured but unredeemed bonds through a statute providing for the escheat of title to the state; (2) whether the federal statute, regulations and contractual provisions governing the transfer and redemption of U.S. savings bonds require the U.S. Department of the Treasury to redeem matured savings bonds that are owned by a state pursuant to a valid judgment of escheatment but that the state cannot identify by serial number without Treasury’s assistance; and (3) whether the interpretation of federal law adopted by the U.S. Court of Appeals for the Federal Circuit below results in an uncompensated taking of property in violation of the Fifth Amendment’s takings clause.
19-1279 LaTurner v. U.S. (1) Whether states that have exercised their historic power to escheat title to abandoned U.S. savings bonds may redeem those bonds as successor owners, as the U.S. Court of Appeals for the 3rd Circuit has concluded, or whether federal law preempts such redemption, as the U.S. Court of Appeals for the Federal Circuit held below; and (2) whether U.S. Department of the Treasury regulations requiring presentation of a bond serial number may operate as a time bar to prevent a bond owner who has lost that serial number from ever redeeming that bond.
19-1272 Retzlaff v. Van Dyke Whether under the doctrine of Erie Railroad Co. v. Tompkins, state anti-SLAPP (Strategic Litigation Against Public Participation) statutes apply in federal diversity cases, as the U.S. Courts of Appeals for the 1st, 2nd and 9th Circuits hold, or do not apply, as the U.S. Courts of Appeals for the 5th, 10th, 11th and District of Columbia Circuits hold.
19-1258 Arizona Republican Party v. Democratic National Committee (1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly “unfounded” concerns about voter fraud.
19-1257 Brnovich v. Democratic National Committee (1) Whether Arizona’s out-of-precinct policy, which does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct, violates Section 2 of the Voting Rights Act; and (2) whether Arizona’s ballot-collection law, which permits only certain persons (i.e., family and household members, caregivers, mail carriers and elections officials) to handle another person’s completed early ballot, violates Section 2 of the Voting Rights Act or the 15th Amendment.
19-1255 Baker v. Rose Whether the U.S. Court of Appeals for the 9th Circuit’s decision – reversing a federal district court’s denial of habeas relief in a decision that sounds of ordinary error correction instead of applying the Antiterrorism and Effective Death Penalty Act of 1996, after the state trial court rejected both the defendant’s and the state’s attempts to introduce evidence of uncharged acts and prior acquittals – violates the AEDPA, given that the Supreme Court reversed the 9th Circuit under materially indistinguishable circumstances in Nevada v. Jackson.
19-1225 Hunt v. Board of Regents of the University of New Mexico Whether the Board of Regents of the University of New Mexico violated Paul Hunt’s clearly established rights as a private citizen under the First Amendment by punishing him for his off-campus, political speech.
19-1220 Szonyi v. Barr (1) Whether National Cable & Telecommunications Association v. Brand X Internet Services requires deference to an agency standard a court has already deemed to be an impermissible reading of the statutory text; and (2) whether a rule promulgated through adjudication by an agency exercising its Chevron U.S.A. v. Natural Resources Defense Council step two and Brand X powers can have retroactive effect.
19-1212 Wolf v. Innovation Law Lab (1) Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C); (2) whether MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.
19-1208 Yanez-Pena v. Barr Whether “a notice to appear” as defined by 8 U.S.C. § 1229(a) and the Supreme Court’s decision in Pereira v. Sessions can consist of information compiled from multiple documents, rather than one document that contains all of the statutorily required information.
19-1189 BP P.L.C. v. Mayor and City Council of Baltimore Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.
19-1184 Bruni v. City of Pittsburgh, Pennsylvania (1) Whether federal courts have authority to save a state or local law from unconstitutionality by positing a limiting construction that has no state-law basis and contradicts governing authorities’ understanding of their own law; and (2) whether Pittsburgh’s buffer-zone ordinance violates the free speech clause.
19-1181 Steinbeck v. Kaffaga Whether collateral estoppel bars an affirmative defense based on 17 U.S.C. § 304(c)(5) in a second litigation, when the first litigation involving different copyright termination rights never decided if the agreement at issue—purporting to transfer control over future termination rights before those rights vested—is unenforceable under Section 304(c)(5).
19-1157 Weatherly v. Pershing, L.L.C. (1) Whether in a class action filed in federal court based on diversity jurisdiction, the tolling rule of American Pipe & Construction Co. v. Utah applies, as the U.S. Court of Appeals for the 8th Circuit has held, or whether state tolling law applies as the U.S. Court of Appeals for the 5th Circuit ruled in this case and as the U.S. Courts of Appeals for the 2nd, 4th, 6th, 7th and 9th Circuits have held; and (2) whether, if federal tolling applies, tolling occurs when a plaintiff brings an individual action before the district court has ruled on the class certification question, as the 2nd, 9th and 10th Circuits have ruled, or whether tolling does not apply as the 1st and 6th Circuits have ruled.
19-1156 Barr v. Alcaraz-Enriquez Whether a court of appeals may conclusively presume an applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates a withholding-of-removal application without making an explicit adverse credibility determination.
19-1147 Willowood, LLC v. Syngenta Crop Protection, LLC (1) Whether liability for patent infringement under 35 U.S.C. § 271(g) requires that all steps of a patented process must be practiced by, or at least attributable to, a single entity, a requirement that the Supreme Court previously recognized is a prerequisite for infringement under 35 U.S.C. §§ 271(a) and (b) in Limelight Networks Inc. v. Akamai Technologies Inc.; and (2) whether, by requiring the Environmental Protection Agency to grant expedited review and approval of labels for generic pesticides that are “identical or substantially similar” to the previously approved labels for the same product, Congress intended to preclude claims of copyright infringement with respect to generic pesticide labels.
19-1138 Knight v. Grossman Whether a claim for violation of a prisoner-patient’s 14th Amendment right to informed consent requires a showing of deliberate indifference and proof of refusal or whether the approach adopted by a majority of circuits, which applies a balancing test weighing, on one hand, the state’s interests in providing for the basic needs of prisoners and, on the other hand, the prisoner’s right to such information as is reasonably necessary to make an informed decision to accept or reject proposed treatment as well as a reasonable explanation of the viable alternative treatments available, should control.
19-1116 LinkedIn Corp. v. hiQ Labs Inc. Whether a company that deploys anonymous computer “bots” to circumvent technical barriers and harvest millions of individuals’ personal data from computer servers that host public-facing websites—even after the computer servers’ owner has expressly denied permission to access the data—“intentionally accesses a computer without authorization” in violation of the Computer Fraud and Abuse Act.
19-1108 Mckesson v. Doe Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither intended, authorized, directed, nor ratified the perpetrator’s act nor engaged in or incited violence of any kind.
19-1099 City of Bakersfield, California v. Crawford Whether the U.S. Court of Appeals for the 9th Circuit erred when it held that evidence of prior incidents that indicate that an individual may be mentally ill could be introduced for the purpose of determining whether an officer used excessive force and/or was negligent even though neither the officer nor his department had any prior knowledge of such incidents.
19-1094 Dailey v. Florida (1) Whether a defendant advancing a claim under Brady v. Maryland must demonstrate that he or she could not have uncovered the suppressed evidence through the exercise of due diligence; (2) whether the materiality of a Brady claim must be determined by considering the probative force of the withheld evidence cumulatively and in the context of the government’s entire case; and (3) whether the Florida Supreme Court’s error in treating petitioner’s claim under Giglio v. United States as though it alleged knowing use of perjury, when it actually alleged withholding exculpatory evidence, warrants reversal.
19-1091 Evans v. Sandy City, Utah (1) Whether a government may ban expressive conduct without first trying to advance its interests using less speech-restrictive measures, as the U.S. Court of Appeals for the 10th Circuit held below, in conflict with decisions of the Supreme Court and the U.S. Courts of Appeals for the 1st, 3rd, 4th and 9th Circuits; and (2) whether a government may ban all expressive conduct in or near roadways on the ground that doing so is necessary to eliminate the risk of traffic accidents, as the 10th Circuit held below, in conflict with decisions of the Supreme Court and the 1st, 4th and 9th Circuits.
19-1067 Browder v. Nehad Whether the U.S. Court of Appeals for the 9th Circuit erred in denying qualified immunity to a police officer who responded to a midnight emergency call about a suspect threatening others with a knife, encountered that suspect in a dark alley walking towards him holding a metallic object within seconds upon arriving at the scene, and used deadly force.
19-1046 Albence v. Ragbir (1) Whether the respondent, Ravidath Lawrence Ragbir, stated a cognizable constitutional claim regarding the selective enforcement of the immigration laws; and (2) whether the suspension clause guarantees a right to file a habeas petition challenging the revocation of an administrative stay of removal.
19-1029 Austin v. Illinois (1) Whether strict First Amendment scrutiny applies to a criminal law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material; and (2) whether the First Amendment requires a law that prohibits nonconsensual dissemination of non-obscene nude or sexually oriented visual material to impose a requirement of specific intent to harm or harass the individual(s) depicted.
19-988 Living Essentials, LLC v. Washington Whether the prior-substantiation doctrine—which makes a commercial speaker liable if it lacks adequate “substantiation” for its factual claims before making them in an advertisement, even if the speech is never proven to be false—violates the First Amendment.
19-953 Farrar v. Williams Whether the due process clause is violated when the prosecution relies on material, perjured testimony to secure a conviction but did not know the testimony was perjured until after the trial, as six courts have held, or whether the prosecution’s contemporaneous knowledge of the perjured testimony is required, as eight courts have held.
19-847 Reisman v. Associated Faculties of the University of Maine Whether it violates the First Amendment to designate a labor union to represent and speak for public-sector employees who object to its advocacy on their behalf.

Featured Petitions

Docket Case Page Issue(s)
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.
20-72 Himsel v. 4/9 Livestock, LLC Whether a state statute violates the takings clause of the United States Constitution when it provides complete immunity from nuisance and trespass liability for an industrial-scale hog facility newly sited next to long-standing family homes, even though the facility causes noxious waste substances to continuously invade those homes, making it impossible for the families to use and enjoy their properties where they have lived for decades.
20-66 G&M Realty L.P. v. Castillo Whether the due process clause of the Fifth Amendment permits a district court to impose liability against a property owner under the “recognized stature” provision of Visual Artists Rights Act of 1990, and award enhanced statutory damages of $6.75 million, for destroying works of graffiti art affixed to his warehouses being demolished in connection with development of his property.
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.
20-38 Arkansas v. Gresham Whether the approval by the secretary of health and human services of the Arkansas Works Amendment was lawful.
20-37 Azar v. Gresham Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in concluding that the secretary of health and human services may not authorize demonstration projects to test requirements that are designed to promote the provision of health-care coverage by means of facilitating the transition of Medicaid beneficiaries to commercial coverage and improving their health.
20-19 Jackson v. Braithwaite Whether Title VII of the Civil Rights Act of 1964 applies to the uniformed military.
20-18 Lange v. California Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.
20-14 Congregation Rabbinical College of Tartikov Inc. v. Village of Pomona, New York Whether, under the Religious Land Use and Institutionalized Persons Act’s substantial-burdens provision, an owner of real property seeking to use such property for religious exercise has Article III standing to challenge a municipality’s zoning law that prohibits outright the owner’s proposed land use without first being required to either apply for permits or variances that the municipality has no power to grant or to seek a legislative change to the zoning law from the municipality.
20-11 Alexis v. Barr Whether, when a state’s definition of a drug expressly sweeps in more substances than the federal definition, a noncitizen convicted of possessing that drug bears the burden of showing in deportation proceedings under 8 U.S.C. 1227(a)(2)(B)(i) that the state has actually prosecuted a criminal defendant with respect to one of the non-federally-controlled substances.
20-10 Kollaritsch v. Michigan State University Board of Trustees Whether, as the U.S. Courts of Appeals for the 6th and 8th Circuits hold, in disagreement with the U.S. Courts of Appeals for the 1st, 10th and 11th Circuits, Davis v. Monroe County Board of Education’s “vulnerability” prong requires plaintiffs to prove additional, post-notice sexual harassment in order to state a claim for damages under Title IX.
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.”
20-5 Blumenthal v. Trump Whether legislators have standing to seek judicial relief when their votes have been “completely nullified” under Raines v. Byrd.
19-8695 Gutierrez v. Collier (1) Whether, under the Religious Land Use and Institutionalized Persons Act, the state’s decision to deprive Mr. Gutierrez of the opportunity to be accompanied during his execution by a religious adviser employed by the prison substantially burdens the exercise of his religion, requiring the state to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, for purposes of the free exercise clause, the state’s blanket policy of denying all prisoners the aid of a religious adviser at the time of the execution—adopted for the acknowledged purpose of avoiding the obligation to allow such a minister to a Buddhist prisoner—burdens Mr. Gutierrez’s exercise of religion without legitimate justification.
19-1475 Duke University v. Biomarin Pharmaceutical Inc. (1) Whether a court of appeals can invoke forfeiture to refuse to address an appointments-clause violation in a pending appeal despite an intervening change in law; and (2) whether the U.S. Patent and Trademark Office Director’s delegation of authority to institute inter partes reviews to administrative patent judges acting as principal officers outside the director’s review violates 35 U.S.C. § 314, which vests institution authority solely in the director; and (3) whether establishing a nexus between a patentee’s invention and objective evidence of nonobviousness under Graham v. John Deere Co. requires the patentee to negate every other conceivable reason for a product’s commercial success and industry praise.
19-1461 Dalberiste v. GLE Associates Inc. Whether the Supreme Court should reconsider Trans World Airlines Inc. v. Hardison and set a proper legal standard for determining what constitutes an "undue hardship" under Title VII.
19-1458 Arthrex Inc. v. Smith & Nephew Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit's severance remedy is consistent with congressional intent, when Congress has long considered tenure protections essential to secure the independence and impartiality of administrative judges; and (2) whether the Federal Circuit correctly held that the elimination of administrative-patent-judge tenure protections was sufficient to render APJs inferior officers, even though their decisions still are not reviewable by any principal executive officer.
19-1451 Sanofi-Aventis Deutschland GMBH v. Mylan Pharmaceuticals Inc. (1) Whether, in a pending case, a court can refuse to entertain a constitutional, separation-of-powers challenge based on an intervening change of law on the grounds of forfeiture; and (2) whether the U.S. Court of Appeals for the Federal Circuit’s obviousness holding is an unwarranted expansion of the Supreme Court’s decision in KSR International Co. v. Teleflex Inc. and is inconsistent with the Patent Act.
19-1447 Manzano v. U.S. (1) Whether the United States may seek a writ of mandamus in a criminal case to bring an interlocutory appeal that is not permitted by 18 U.S.C. § 3731; and (2) whether a writ of mandamus may issue when the applicant does not have a clear and indisputable right to it by established law, but the issuing court is firmly convinced that the lower court is wrong.
19-1434 U.S. v. Arthrex Inc. (1) Whether, for purposes of the Constitution's appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred by adjudicating an appointments clause challenge brought by a litigant that had not presented the challenge to the agency.
19-1418 Zoie H. v. Nebraska Whether the Second and Sixth Amendments permit a state to deprive an individual of the Second Amendment right to keep and bear arms based on the commission of an offense while denying the accused a right to a jury trial for that offense.
19-1414 U.S. v. Cooley Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search the respondent, Joshua James Cooley, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.
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).
19-1398 Lieu v. Federal Election Commission Whether the federal statutory limit on contributions to political committees, 52 U.S.C. § 30116(a)(1)(C), comports with the First Amendment as applied to committees that make only independent expenditures.
19-1392 Dobbs v. Jackson Women’s Health Organization (1) Whether all pre-viability prohibitions on elective abortions are unconstitutional; (2) whether the validity of a pre-viability law that protects women's health, the dignity of unborn children and the integrity of the medical profession and society should be analyzed under Planned Parenthood v. Casey's "undue burden" standard or Whole Woman's Health v. Hellerstedt's balancing of benefits and burdens; and (3) whether abortion providers have third-party standing to invalidate a law that protects women's health from the dangers of late-term abortions.
19-1382 Sterling Jewelers Inc. v. Jock Whether an arbitrator may compel class arbitration—binding the parties and absent class members—without finding actual consent, and instead based only on a finding that the agreement does not unambiguously prohibit class arbitration and should be construed against the drafter.
19-1368 Walmart Stores Inc. v. Texas Alcoholic Beverage Commission Whether a state law that has the predominant effect of protecting in-state retailers from out-of-state competition is immune from constitutional scrutiny just because it does not facially distinguish between in-state and out-of-state businesses of the same form.
19-1365 Hueso v. Barnhart Whether, notwithstanding the savings clause of 28 U.S.C. § 2255(e) – which allows a prisoner whose claim for postconviction relief is otherwise barred to petition for a writ of habeas corpus if the Section 2255 remedy is “inadequate or ineffective” to test the legality of his detention – an individual serving a wrongfully enhanced sentence is barred from obtaining relief, solely because the wrongfulness of the sentence was established retroactively by a court of appeals decision.
19-1362 Laut v. U.S. (1) What test, if any, should be used to determine whether a constructive amendment impacted a defendant’s substantial rights under Federal Rule of Criminal Procedure 52(b); and (2) what showing is required to determine whether a constructive amendment is “plain” error under Rule 52(b).
19-1361 Jordan v. Georgia Department of Corrections Whether evidence of how other departments of corrections have obtained and successfully administered an alternative execution method is relevant to showing the method is feasible and available under Glossip v. Gross.
19-1357 Perez v. Colorado Whether, and to what extent, the Sixth and 14th Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.
19-1339 Kansas City Royals Baseball Corp. v. Senne (1) Whether Tyson Foods Inc. v. Bouaphakeo sanctions the use of statistical surveys to establish commonality and predominance for a wage-and-hour class that encompasses different kinds of employees performing different kinds of work for different employers at different worksites under different compensation terms; and (2) whether cohesiveness is required for class certification under Federal Rule of Civil Procedure 23(b)(2).
19-1336 National Retirement Fund v. Metz Culinary Management Inc. Whether the Employee Retirement Income Security Act prohibits multiemployer pension plan actuaries from selecting actuarial assumptions to calculate withdrawal liability after the measurement date – the last day of the plan year immediately prior to the year in which an employer withdrew – even when such assumptions are based on their “best estimate of anticipated experience under the plan” and professional standards governing actuaries.
19-1334 Signode Industrial Group LLC v. Stone Whether the U.S. Court of Appeals for the 7th Circuit erred by holding – in conflict with decisions reached by at least two other federal courts of appeals and in spite of the Supreme Court’s holdings in M&G Polymers USA, LLC v. Tackett and CNH Industrial N.V. v. Reese that collective bargaining agreements must be interpreted according to generally applicable principles of contract law – that a collective bargaining agreement with an “express statement[] extending benefits beyond the term of agreement” irrefutably confers vested, lifetime benefits, even if the agreement separately reserves for the employer the right to terminate the agreement in its entirety.
19-1316 Garcia-Romo v. Barr Whether the government may trigger the stop-time rule – which cuts off a noncitizen’s period of continuous residence – when the government issues a document that fails to include all of the information listed under 8 U.S.C. § 1229(a), followed by a second document that supplies the missing information but nevertheless fails to meet Section 1229(a)’s definition.
19-1315 Nevada v. Walden Whether a state remains immune from suit after voluntarily removing a federal claim to federal court when the state is immune from such claims in its own courts.
19-1309 Phipps v. Idaho Whether the “limited authority to detain” during the execution of a judicially approved search warrant for contraband, under Michigan v. Summers, permits probation officers conducting a routine residence check to detain any visitor present, without any suspicion the visitor has done something unlawful or poses a danger.
19-1306 United Parcel Service Inc. v. New York (1) Whether multiple shipments from different shippers may be aggregated to satisfy the 10,000-cigarette threshold of the Contraband Cigarette Trafficking Act, which prohibits the knowing transportation of “a quantity” of more than 10,000 untaxed cigarettes in the “possession” of unauthorized persons; and (2) whether substantial compliance is a prerequisite to the statutory exemption of the Prevent All Cigarette Trafficking Act of 2009, which exempts the United Parcel Service by name if its tobacco-delivery agreement with New York is “honored” nationwide.
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.
19-1291 Hamner v. Burls (1) Whether qualified immunity is an affirmative defense that state actors must assert, as nine U.S. Courts of Appeals hold, or whether federal appellate courts may raise the defense sua sponte, as three U.S. Courts of Appeals hold; and (2) whether the Supreme Court should reconsider Pearson v. Callahan in light of empirical evidence that bypassing the constitutional prong results in a constitutional catch-22, increasingly leaving pressing questions unanswered simply because they have not been answered before.
19-1284 Malwarebytes Inc. v. Enigma Software Group USA, LLC Whether federal courts can derive an implied exception to immunity for computer-service providers from most civil liability under Section 230(c)(2)(B) of the Communications Decency Act for blocking or filtering decisions when the decisions are alleged to be “driven by anticompetitive animus.”
19-1280 Idaho Department of Correction v. Edmo (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the guidelines set by an advocacy organization – providing for sex reassignment surgery instead of hormone therapy and counseling for gender dysphoria – constitute the constitutional minima for inmate medical care under the Eighth Amendment, when the U.S. Courts of Appeals for the 1st, 5th, 10th and 11th Circuits have all concluded that they do not; and (2) whether the 9th Circuit’s holding that a prison health-care provider’s individualized medical decision was unreasonable and therefore constituted deliberate indifference, regardless of his subjective reasoning, conflicts with Estelle v. Gamble, holding that mere negligence does not establish deliberate indifference, and Farmer v. Brennan, holding the provider must have known of and disregarded a substantial risk of serious harm to find deliberate indifference.
19-1269 TCL Communication Technology Holdings Limited v. Telefonaktiebolaget LM Ericsson Whether a patent owner required to license its standard-essential patents on fair, reasonable and nondiscriminatory terms has a Seventh Amendment right to a jury trial in a proceeding seeking the equitable relief of specific performance.
19-1260 Demma v. U.S. (1) Whether the discretion recognized under Kimbrough v. United States for a district court to vary from the U.S. Sentencing Commission's sentencing guidelines based on a policy disagreement applies to the child pornography guidelines, as held by the U.S. Courts of Appeals for the 2nd, 3rd and 9th Circuits, or whether that discretion is limited or foreclosed altogether, as held by the U.S. Courts of Appeals for the 5th, 6th and 11th Circuits; and (2) whether substantive-reasonableness review under Gall v. United States requires an appeals court to reassess the relative weight assigned by the district court to each of the 18 U.S.C. § 3553(a) factors, as held by the U.S. Courts of Appeals for the 6th and 11th Circuits, or whether such reweighing is impermissible, as held by the U.S. Courts of Appeals for the 1st, 2nd and 10th Circuits.
19-1254 Pennsylvania v. Davis (1) Whether the foregone-conclusion exception to the Fifth Amendment privilege against self-incrimination established in Fisher v. United States and its progeny applies to the compelled production of passwords to encrypted electronic devices when the government has seized a device pursuant to a valid search warrant and has independent knowledge that the password exists, is known by the suspect and will decrypt the device, such that the compelled information itself lacks testimonial significance and any testimony implied by the compelled act is already known by the government, is not in issue and adds little or nothing to the sum total of the government's information; and (2) whether, assuming the foregone-conclusion exception applies, the government must demonstrate knowledge relating solely to the password sought or must also demonstrate knowledge of the contents of the encrypted device for which a judge has already authorized a search.
19-1241 National Association of Broadcasters v. Prometheus Radio Project Whether under Section 202(h) of the Telecommunications Act of 1996 the Federal Communications Commission may repeal or modify media ownership rules that it determines are no longer “necessary in the public interest as the result of competition” without statistical evidence about the prospective effect of its rule changes on minority and female ownership.
19-1231 Federal Communications Commission v. Prometheus Radio Project Whether the U.S. Court of Appeals for the 3rd Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which, among other things, relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.
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.
19-1186 Baker v. Planned Parenthood South Atlantic (1) Whether Medicaid recipients have a private right of action under 42 U.S.C. § 1983 and 42 U.S.C. § 1396a(a)(23) to challenge a state’s determination that a specific provider is not qualified to provide certain medical services; and (2) what framework properly decides whether a statute creates a private right enforceable under 42 U.S.C. § 1983.
19-1155 Barr v. Dai (1) Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination; and (2) whether the court of appeals violated the remand rule as set forth in INS v. Ventura when it determined in the first instance that the respondent, Ming Dai, was eligible for asylum and entitled to withholding of removal.
19-1155 Barr v. Dai (1) Whether a court of appeals may conclusively presume that an asylum applicant’s testimony is credible and true whenever an immigration judge or the Board of Immigration Appeals adjudicates an application without making an explicit adverse credibility determination; and (2) whether the court of appeals violated the remand rule as set forth in INS v. Ventura when it determined in the first instance that the respondent, Ming Dai, was eligible for asylum and entitled to withholding of removal.
19-1130 Danielson v. Inslee (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.
19-1104 Janus v. American Federation of State, County and Municipal Employees, Council 31 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.
19-1098 National Football League v. Ninth Inning Inc. (1) Whether an agreement among the members of a joint venture on how best to distribute the venture’s jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market; and (2) whether, notwithstanding the Supreme Court’s decision in Illinois Brick Co. v. Illinois, antitrust damages claims may be brought by indirect purchasers who do not allege that they paid a price fixed by the alleged conspirators.
19-1085 Deasey v. Slater Whether, for purposes of qualified immunity, a merely “sufficiently analogous” case is enough to show that the law is “clearly established,” or whether something more is required, i.e., a “closely analogous” case finding the alleged violation unlawful.
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.

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.
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.
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.
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.
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At a Glance