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Petitions We’re Watching

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Petitions Relisted for the Next Conference

Docket Case Page Issue(s)
20-1199 Students for Fair Admissions Inc. v. President & Fellows of Harvard College (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives. CVSG: 12/8/2021
20-7805 Knight v. Pennsylvania Whether a state may require a defendant to present an IQ score of 75 or below that was “documented prior to age 18” to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.
21-27 Arrow Highway Steel v. Dubin (1) Whether the dormant commerce clause may be used to invalidate the application of a state's neutral, non-discriminatory tolling statute to defeat the enforcement of a former resident's stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.
21-53 Holcombe v. Florida (1) Whether a criminal defendant establishes an “actual” conflict of interest that adversely affects counsel’s representation when the attorney engages in “joint and dual” representation – i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the “presumed prejudice” conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsel’s conflict of interest – a conflict which is described by the prosecutor as “not waivable” – and the judge thereafter fails to inquire into the nature and scope of the conflict.
21-164 Trustees of the New Life in Christ Church v. City of Fredericksburg, Virginia (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a church’s determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light of Fulton v. City of Philadelphia, because Virginia has enacted a “system of individual exemptions” to its property tax law, and the city “‘may not refuse to extend that [exemption] system to [the Church] without compelling reason.’”
21-210 Wisconsin v. Jensen (1) Whether a person’s statement expressing fear about a possible future crime is testimonial under the Sixth Amendment’s confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the person’s statement aimed at ending an ongoing emergency is non-testimonial.
21-258 Oklahoma v. Davis Whether McGirt v. Oklahoma should be overruled.
21-376 Haaland v. Brackeen (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.
21-377 Cherokee Nation v. Brackeen (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari.
21-378 Texas v. Haaland (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.
21-380 Brackeen v. Haaland (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.
21-454 Sackett v. Environmental Protection Agency Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.
21-468 National Pork Producers Council v. Ross (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.
21-476 303 Creative LLC v. Elenis (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.
21-707 Students for Fair Admissions v. University of North Carolina (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
21-5050 Love v. Texas (1) Whether Texas' Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Love's rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas' Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Love's rights under the Sixth and 14th Amendments to the United States Constitution.

Petitions We’re Watching for the Next Conference

Docket Case Page Issue(s)
21-674 North Carolina State Health Plan for Teachers & State Employees v. Kadel Whether the residual clause of Section 1003 of the Rehabilitation Act Amendments of 1986 provides an “unequivocal textual waiver” of sovereign immunity, permitting suits against states under subsequently enacted statutory provisions that refer to neither states nor sovereign immunity.
21-552 Edward D. Jones & Co., L.P. v. Anderson Whether the U.S. Court of Appeals for the 9th Circuit, in conflict with other U.S. Courts of Appeals, erred in concluding that Chadbourne & Parke v. Troice narrowed Merrill Lynch, Pierce, Fenner & Smith v. Dabit’s interpretation of the Securities Litigation Uniform Standards Act’s “in connection with” prong to require that the alleged deception induce a specific transaction in a particular covered security.
21-495 Black v. Pension Benefit Guaranty Corporation (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants’ constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the termination’s substantive legality is to be judged under the standards in 29 U.S.C. § 1342(c), or whether it is enough that the conditions in Section 1342(a) to “institute” proceedings may exist.
21-462 Johnson v. Bethany Hospice and Palliative Care LLC Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims.
21-427 Lamoureux v. Montana Whether a statute that criminalizes speech intended to annoy or offend is unconstitutionally overbroad under the First Amendment.
21-395 McCarthy v. Pelosi Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.
21-379 Texas v. Commissioner of Internal Revenue (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.
21-267 Broadnax v. Lumpkin Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a claim under Batson v. Kentucky when the evidence was not available to the petitioner during state court Batson proceedings.
21-202 Mylan Laboratories Ltd. v. Janssen Pharmaceutica (1) Whether 35 U.S.C. § 314(d) categorically precludes appeal of all decisions not to institute inter partes review; and (2) whether the NHK-Fintiv Rule is substantively and procedurally unlawful.
21-159 Aposhian v. Garland (1) Whether courts should defer under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. to an agency interpretation of federal law when the federal government affirmatively disavows Chevron deference; (2) whether the Chevron framework applies to statutes with criminal-law applications; and (3)whether, if a court determines that a statute with criminal-law applications is ambiguous, the rule of lenity requires the court to construe the statute in favor of the criminal defendant, notwithstanding a contrary federal agency construction.
21-145 Gordon College v. DeWeese-Boyd (1) Whether professors at religious colleges perform ministerial functions when the college exists to spread its faith, and the college requires faculty, as a primary component of their position, to integrate Christian doctrine into their work and academic disciplines, engage in teaching and scholarship from a decidedly religious perspective, and serve as advisors and mentors for student spiritual formation; and (2) whether the First Amendment requires courts to defer to the good-faith characterization of a ministerial position by a religious organization or church.
21-118 Apple Inc. v. Optis Cellular Technology, LLC Whether the U.S. Court of Appeals for the Federal Circuit may review, by appeal or mandamus, a decision of the U.S. Patent & Trademark Office denying a petition for inter partes review of a patent, where review is sought on the grounds that the denial rested on an agency rule that exceeds the PTO’s authority under the Leahy-Smith America Invents Act, is arbitrary or capricious, or was adopted without required notice-and-comment rulemaking.
21-86 Axon Enterprise v. Federal Trade Commission (1) Whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the Commission’s cease-and desist orders; and (2) whether, on the merits, the structure of the Federal Trade Commission, including the dual-layer for-cause removal protections afforded its administrative law judges, is consistent with the Constitution.

Featured Petitions

Docket Case Page Issue(s)
21-975 Idaho v. Howard Whether, when officers lawfully deploy a narcotics-detection dog on the exterior of a vehicle and, without any direction, prompting, or facilitation by officers, the dog briefly touches the vehicle or places its snout through an open window, the dog’s conduct constitutes a Fourth Amendment search by officers.
21-970 Crow v. Fontenot Whether “new” evidence, as referred to in Schlup v. Delo and McQuiggin v. Perkins, means evidence that was not available at the time of trial or, under the broad reading adopted below, encompasses any evidence, including evidence known by the defendant and/or available with due diligence, not presented at trial.
21-968 Fairfax County School Board v. Doe (1) Whether a recipient of federal funding may be liable in damages in a private action under Davis v. Monroe County Board of Education in cases alleging student-on-student sexual harassment when the recipient’s response to such allegations did not itself cause any harassment actionable under Title IX; and (2) whether the requirement of “actual knowledge” in a private action under Davis is met when a funding recipient lacks a subjective belief that any harassment actionable under Title IX occurred.
21-966 New York v. Yellen Whether Congress’s imposition of a $10,000 cap on the deduction of state and local property and income taxes from federal taxable income violates Article I, Section 8 and the 10th and 16th Amendments of the United States Constitution.
21-954 Biden v. Texas (1) Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration proceedings; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the secretary of homeland security’s new decision terminating MPP had no legal effect.
21-949 Little v. Randolph Whether a criminal defendant can forfeit or waive his or her Sixth Amendment right to counsel of choice by not alerting the trial court of his or her intention to retain new counsel until shortly before trial begins after repeated defense continuances.
21-948 Educational Commission for Foreign Medical Graduates v. Russell Whether, when an action involves both common and individual questions, a court may certify common questions for class treatment under Federal Rule of Civil Procedure 23(b)(3) without finding that the common questions predominate over the individual questions.
21-938 Stirling v. Stokes (1) Whether the U.S. Court of Appeals for the 4th Circuit violated basic principles of Strickland v. Washington when it failed to reweigh the whole of the evidence in its prejudice analysis in Sammie Stokes' habeas action to determine if there was a reasonable probability of a different result; (2) whether the 4th Circuit erred in granting relief on a defaulted ineffective-assistance-of-trial-counsel claim when trial counsel had reasonable strategic reasons not to pursue a “bad upbringing” mitigation defense and collateral counsel had reasonable strategic reasons not to pursue an ineffective-assistance-of-trial-counsel claim; and (3) alternatively, whether this case should be held pending the outcome of Shinn v. Ramirez, argued Dec. 8, 2021.
21-932 Trump v. Thompson Whether a records request from the House Select Committee to Investigate the January 6th Attack on the United States Capitol violates the Constitution or laws of the United States, entitling former President Donald Trump to a preliminary injunction prohibiting production of the records to the committee.
21-926 Cooper Tire & Rubber Company v. McCall Whether the due process clause of the 14th Amendment permits a state to assert personal jurisdiction over an out-of-state corporation, for claims not arising from or related to any contacts between the corporation and the forum state, on the ground that the corporation’s registration to do business in the state is deemed consent to general jurisdiction there.
21-896 Martin v. Johnson Whether the U.S. Court of Appeals for the 10th Circuit violated the backward-looking nature of Section 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 and the clear mandates announced by the Supreme Court in Sexton v. Beaudreaux, Cullen v. Pinholster, and Harrington v. Richter when it considered — and based its ultimate decision upon — an argument the respondent, Alonzo Cortez Johnson, never made to the Oklahoma Court of Criminal Appeals on direct appeal.
21-883 Gore v. Oklahoma Whether McGirt v. Oklahoma applies retroactively to convictions that were final when McGirt was decided.
21-877 Thacker v. U.S. Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
21-867 Midwest Air Traffic Control Service v. Badilla Whether state-law tort claims that arise out of the uniquely federal sphere of the military’s combat operations are preempted by the interests embodied in the Federal Tort Claims Act’s combatant-activities exception.
21-857 Jones v. Hendrix Whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.
21-846 Cruz v. Arizona Whether the Supreme Court’s decision in Lynch v. Arizona — confirming that the rule announced in Simmons v. South Carolina (that due process entitles a capital defendant whose future dangerousness is at issue to inform the jury that he will be ineligible for parole if not sentenced to death) applies in Arizona — applied a settled rule of federal law that must be applied to cases pending on collateral review in Arizona.
21-840 U.S. v. Frey Whether the Penobscot Indian Reservation includes only the uplands of the islands in the main stem of the Penobscot River or also includes the surrounding river, where the Penobscot have fished, hunted, and trapped since time immemorial.
21-838 Penobscot Nation v. Frey Whether the Maine Indian Settlement Acts — consistent with the Supreme Court’s precedents on statutory interpretation and the Indian canons of construction — codify the historical understanding of the Penobscot Nation, the United States, and the state that the Penobscot Reservation encompasses the Main Stem of the Penobscot River.
21-835 Flowers v. U.S. Whether conduct that is consistent with either lawful or unlawful behavior, and in which law-abiding members of the general public routinely engage, can establish reasonable suspicion justifying a stop under Terry v. Ohio merely because it occurs in a high-crime area.
21-816 Gear v. U.S. (1) Whether — given that the Supreme Court held in Rehaif v. United States that in a prosecution under 18 U.S.C. § 922(g)(5)(A), the government must prove that the defendant knew his legal status — other subdivisions of18 U.S.C. § 922(g) require knowledge of collateral law; and (2) whether appellate courts must give a defendant an opportunity to make an evidentiary proffer to satisfy his burden of demonstrating plain error.
21-783 Cope v. Cogdill (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
21-782 Young v. Georgia (1) Whether requiring a capital defendant to prove his intellectual disability beyond a reasonable doubt violates the due process clause by creating an unacceptable risk that a constitutional right will go unenforced; and (2) whether requiring a capital defendant to prove his intellectual disability beyond a reasonable doubt violates the Eighth Amendment by creating an unacceptable risk that an intellectually disabled person will be executed.
21-770 Hawkins v. Banks (1) Whether the U.S. Court of Appeals for the 8th Circuit wrongly denied qualified immunity to Officer Shelby Hawkins by finding the use of force was not reasonable as a matter of law when Hawkins had probable cause to believe there was a threat of serious physical injury or death; and (2) whether the 8th Circuit wrongly denied qualified immunity to Hawkins in the absence of any precedent finding a Fourth Amendment violation based on similar facts.
21-767 Williams v. U.S. Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).
21-763 Ham v. Breckon Whether a district court has jurisdiction under 28 U.S.C. § 2241 to review a claim that a federal prisoner’s sentence is invalid in light of an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court, when circuit precedent foreclosed the claim at the time of the prisoner’s prior motion under 28 U.S.C. § 2255.
21-760 Kelly v. Animal Legal Defense Fund Whether Kan. Stat. Ann. § 47-1827(b), (c), and (d) violate the free speech clause of the First Amendment by criminalizing trespass by deception at animal facilities with intent to damage the enterprise.
21-752 Hammond v. U.S. (1) Whether a government agent’s direction to a wireless carrier to send a signal to a person’s phone, so that the phone reveals the person’s precise location and movements in real time, is a search within the meaning of the Fourth Amendment; and (2) whether a government agent’s good faith but objectively incorrect reading of a statute prevents the exclusion of constitutionally tainted evidence in a criminal trial.
21-746 Apple Inc. v. Qualcomm Incorporated Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.
21-742 Lyft v. Seifu Whether the Federal Arbitration Act requires the enforcement of a bilateral arbitration agreement providing that a worker cannot raise representative claims under California’s Private Attorneys General Act, thereby preempting the contrary holding in Iskanian v. CLS Transportation Los Angeles LLC.
21-728 Cedado Nuñez v. U.S. Whether the three ways to identify nationless vessels enumerated in the Maritime Drug Law Enforcement Act are exhaustive.
21-721 Transpacific Steel LLC v. U.S. (1) Whether the president acted outside of the scope of the statutory authority Congress granted under Section 232 of the Trade Expansion Act of 1962 by doubling the tariff on steel imports from Turkey after the expiration of the statutory periods for presidential action specified in Section 232(c)(1); and (2) whether Section 232, as construed by the U.S. Court of Appeals for the Federal Circuit majority in this case to eliminate mandatory deadlines for presidential action, is inconsistent with the Supreme Court’s ruling in Federal Energy Administration v. Algonquin SNG, Inc. and is therefore an unconstitutional delegation of legislative power to the president in violation of Article I, section 8 of the Constitution and the principle of separation of powers because it cedes to the president the virtually unbounded power to tax and otherwise regulate imports.
21-711 Markham Concepts v. Hasbro Whether a party that commissions a work from an independent contractor qualifies as the creator’s “employer” within the meaning of the Copyright Act of 1909’s work-for-hire provision.
21-706 Gilbert v. U.S. (1) Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action; and (2) whether a jury must be instructed that merely “expressing support” for a policy cannot support conviction under the federal bribery laws.
21-692 Haystings v. Korb Whether, when a prisoner violates the Prison Litigation Reform Act by initiating litigation without first exhausting administrative remedies, the prisoner can escape that violation by filing a supplemental pleading under Federal Rule of Civil Procedure 15(d).
21-683 Kitchin v. Bridgeton Landfill, LLC Whether the Class Action Fairness Act’s “local controversy” exception under which a federal district court must decline jurisdiction over a class action can be satisfied when the local and non-local defendants engaged in the same alleged conduct (as the U.S. Courts of Appeals for the 6th, 9th, and 10th Circuits hold), or whether the alleged conduct of the local defendant must be different from that of the non-local defendants (as the U.S. Court of Appeals for the 5th and 8th Circuits hold).
21-682 Shivers v. U.S. Whether the discretionary function exception to the Federal Tort Claims Act immunizes the United States from tort liability for acts taken by its employees in violation of the Constitution.
21-679 Shoop v. Cassano (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; and (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review.
21-676 Musta v. Mendota Heights Dental Center Whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.
21-641 Ferrellgas Partners, LP v. Director, Division of Taxation of New Jersey Whether a levy that raises revenue for a state’s general fund, and that is not restricted to the in-state activities of the levy-payor, may be characterized as a locally focused regulatory fee, and thus be imposed without regard to whether it is internally consistent.
21-637 Lee v. Garlick (1) Whether, in granting habeas corpus relief to a state court prisoner, the U.S. Court of Appeals for the 2nd Circuit created a circuit split and denied the state court judgment the deference mandated by 28 U.S.C. § 2254(d)(1) when it relied on a test that was not clearly established by the Supreme Court’s precedents to determine that an autopsy report was testimonial under the confrontation clause; (2) whether the 2nd Circuit violated Yarborough v. Alvarado by applying an overly specific “unreasonable application” analysis; and (3) whether the 2nd Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the admission of the autopsy report was not harmless despite (a) uncertainty as to whether the report was admissible to form the basis of an in-court expert opinion, and (b) overwhelming evidence of guilt including surveillance video of James Garlick stabbing the victim to death.
21-634 Wright v. Indiana (1) Whether a defendant’s otherwise clear invocation of his right to represent himself becomes equivocal when he prefers representation by an attorney who cannot or will not represent him; and (2) whether courts may override a defendant’s right to represent himself in a high-penalty case out of fear that he will be unable to represent himself well.
21-622 Devine v. Absolute Activist Value Master Fund Limited Whether the voluntary dismissal of a plaintiff’s suit under Federal Rule of Civil Procedure 41(a)(1) permanently strips the district court of jurisdiction to consider a motion to modify a previously issued protective order.
21-605 Roberson v. U.S. (1) Whether, in a bribery prosecution based on issue-advocacy payments that would otherwise enjoy First Amendment protection, the government must prove that the payments were explicitly linked to official action; and (2) whether a jury must be instructed that merely “expressing support” for a policy cannot support conviction under the federal bribery laws.
21-603 Ohio v. Brinkman (1) Whether the due process clause of the 14th Amendment to the United States Constitution prohibits review of the entire record to determine whether a guilty plea was knowingly, intelligently, and voluntarily entered; and (2) whether the Supreme Court should grant certiorari to resolve the conflict among the courts on whether the failure to strictly adhere to the advisement of rights in Boykin v. Alabama should result in the automatic reversal of a guilty plea.
21-594 Alphabet Inc. v. Rhode Island Whether the “risk factors” disclosed in a securities filing must disclose only future risks or must also disclose whether a risk has come to fruition in the past.
21-587 Clarkston v. Whole Woman’s Health Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
21-583 Carlton v. Whole Woman’s Health Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.
21-582 Dickson v. Whole Woman’s Health (1) Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overrule Whole Woman’s Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.
21-581 Loughry v. U.S. Whether circumstantial evidence of extrajudicial social-media contact with a juror about the case can be enough to entitle a criminal defendant to a hearing under Remmer v. United States to determine “what actually transpired, or whether the incidents that may have occurred were harmful or harmless.”
21-541 Tuggle v. U.S. Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment.
21-538 Reagle v. Lewis Whether, after Roderick Lewis's counsel failed at sentencing to say anything more than that Lewis would speak on his own behalf, the U.S. Court of Appeals for the 7th Circuit misapplied 28 U.S.C. § 2254 in holding that the failure to apply United States v. Cronic — in which the Supreme Court suggested that, though Strickland v. Washington requires an ineffective-assistance claimant to prove both deficient performance and prejudice, some “circumstances. . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” — violated “clearly established Federal law, as determined by the Supreme Court of the United States.”
21-533 Martin v. Castro (1) Whether, when a law enforcement officer reasonably deploys a police K9 to restrain a fleeing suspect known to have a history of violent crime and believed to be in possession of a deadly weapon and under the influence of an illegal stimulant, the Fourth Amendment is violated when the K9’s handler commands the K9 to release the suspect within seconds after the suspect is handcuffed and ceases resisting arrest; (2) whether the U.S. Court of Appeals for the 9th Circuit erred when it failed to consider the totality of the circumstances in assessing the reasonableness of force used to restrain a suspect with a known history of violent crime who is actively resisting arrest and is believed to be in possession of a deadly weapon and under the influence of an illegal stimulant; and (3) whether the 9th Circuit violated City and County of San Francisco v. Sheehan and other binding precedent when it denied a police officer qualified immunity by defining clearly established law at too high a level of generality.
21-477 Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria Whether the immovable-property exception applies to tribal sovereign immunity.
21-475 Brookhart v. Smith Whether the U.S. Court of Appeals for the 7th Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to the respondent, Kenneth Smith, based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.
21-453 Uber Technologies v. Gregg Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-442 Reed v. Goertz Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).
21-432 Arellano v. McDonough (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.
21-429 Oklahoma v. Castro-Huerta (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.
21-420 Postmates, LLC v. Santana Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.
21-268 Coverall North America v. Rivas Whether the Federal Arbitration Act preempts a state-law rule which precludes the enforcement of an agreement to arbitrate claims on an individual basis when a state declares that a private litigant has an unwaivable right to pursue certain claims on a representative basis.
21-119 Postmates, LLC v. Rimler Whether agreements calling for individual arbitration are enforceable under the Federal Arbitration Act with respect to claims asserted under the California Labor Code Private Attorneys General Act.

Calls for the Views of the Solicitor General

Docket Case Page Issue(s)
21-471 Doe 1 v. Express Scripts (1) Whether an administrator hired by a plan under the Employee Retirement Income Security Act of 1974 acts as a fiduciary when it controls prices paid by the plan or its participants (as the U.S. Courts of Appeals for the 4th, 5th, 7th, 8th, and 9th Circuits hold) or whether control over pricing is exempt from the definition of “fiduciary” (the exception from DeLuca v. Blue Cross Blue Shield of Michigan) if the administrator is in the “business” of setting prices for its clients (as the U.S. Courts of Appeals for the 2nd and 6th Circuits maintain); and (2) whether, if the DeLuca exception is, in fact, a proper gloss on ERISA based on the Supreme Court’s decision in Pegram v. Herdrich, it exempts from fiduciary status a third-party benefit manager that exercises ongoing discretion over the actual prices charged to the plans pursuant to a contract with the plan administrator.
21-438 Olaf Sööt Design, LLC v. Daktronics Whether the Seventh Amendment allows the U.S. Court of Appeals for the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court.
21-382 Strauss v. Credit Lyonnais, S.A. Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.
21-381 Weiss v. National Westminster Bank, PLC Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.
21-260 Virgin America v. Bernstein Whether the Airline Deregulation Act preempts generally applicable state laws that have a significant impact on airline prices, routes, and services, as the Supreme Court and four circuits have held, or whether it preempts such laws only if they bind an airline to a particular price, route, or service, as the U.S. Court of Appeals for the 9th Circuit has held.
21-241 Monsanto Company v. Hardeman (1) Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a state-law failure-to-warn claim when the warning cannot be added to a product without the Environmental Protection Agency's approval and the EPA has repeatedly concluded that the warning is not appropriate; and (2) whether the U.S. Court of Appeals for the 9th Circuit’s standard for admitting expert testimony — which departs from other circuits’ standards — is inconsistent with the Supreme Court’s precedent and Federal Rule of Evidence 702.
21-194 California Trucking Association v. Bonta Whether the Federal Aviation Administration Authorization Act preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services.
20-1426 Epic Systems Corp. v. Tata Consultancy Services Ltd. Whether a state statute that expressly caps punitive damages at two times compensatory damages satisfies the notice requirement of the due process clause such that a punitive damages award that complies with the statute is constitutionally sound under the due process clause.
20-1425 C.H. Robinson Worldwide v. Miller Whether a common-law negligence claim against a freight broker is preempted because it does not constitute an exercise of the “safety regulatory authority of a State with respect to motor vehicles” within the meaning of the Federal Aviation Administration Authorization Act’s safety exception.
20-1394 PersonalWeb Technologies, LLC v. Patreon Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit correctly interpreted Kessler v. Eldred to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not; and (2) whether the Federal Circuit properly extended its Kessler doctrine to cases in which the prior judgment was a voluntary dismissal.
20-1229 Robertson v. Intratek Computer (1) Whether mandatory compelled arbitration of claims under 41 U.S.C. § 4712 disrupts the administrative scheme set up by Congress to remedy and enforce violations of 41 U.S.C. § 4712; and (2) whether Congress intended to prohibit enforcement of mandatory employment arbitration agreements in 41 U.S.C. § 4712, even if the statute does not expressly refer to arbitration, when it (a) expressly provided for a federal trial in the remedy and enforcement section and (b) expressly prohibited waiver of any rights and remedies provided as a condition of employment.
20-891 American Axle & Manufacturing Inc. v. Neapco Holdings LLC (1) What standard determines whether a patent claim is “directed to” a patent-ineligible concept under step 1 of the Supreme Court’s two-step framework for determining whether an invention is eligible for patenting under 35 U.S.C. § 101; and (2) whether patent eligibility (at each step of the Supreme Court’s two-step framework) is a question of law for the court based on the scope of the claims or a question of fact for the jury based on the state of art at the time of the patent.