Supreme Court October 2020 Term preview (no discussions of Ginsburg/Barrett/vacancy, stick to the cases)

Politics
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(Note: Plenty of threads exist related to the vacancy in general, Ginsburg, Barrett, etc. So please, no mention of that here. Please stick to the cases on the docket.)

The Long Conference takes place on Tuesday, September 29th. We will get the resulting order list from that conference on Monday, October 5th. The October sitting commences on October 5th. (Note: Until further order from the Supreme Court, the sittings will be conducted telephonically as was done in May.)

The court has issued its calendars for the October, November and December sittings.

Notable cases from the October sitting:

Carney v. Adams, No. 19-309 [Arg: 10.5.2020]

Issue(s): (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.

Google LLC v. Oracle America Inc., No. 18-956 [Arg: 10.7.2020]

Issue(s): (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

U.S. v. Briggs, No. 19-108 [Arg: 10.13.2020]

Issue(s): Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

U.S. v. Collins, No. 19-184 [Arg: 10.13.2020]

Issue(s): Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

November sitting:

California v. Texas, No. 19-840 [Arg: 11.10.20]

Issue(s): (1) Whether the individual and state plaintiffs in this case have established Article III standing to challenge the minimum-coverage provision in Section 5000A(a) of the Patient Protection and Affordable Care Act (ACA); (2) whether reducing the amount specified in Section 5000A(c) to zero rendered the minimum-coverage provision unconstitutional; and (3) if so, whether the minimum-coverage provision is severable from the rest of the ACA.

Texas v. California, No. 19-1019 [Arg: 11.10.20]

Issue(s): (1) Whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act; and (2) whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere.

December sitting

Nestlé USA v. Doe I, No. 19-416 [Arg: 12.1.2020]

Issue(s): (1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.

Cargill v. Doe I, No. 19-453 [Arg: 12.1.2020]

Issue(s): (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.

Department of Justice v. House Committee on the Judiciary, No. 19-1328 [Arg: 12.2.2020]

Issue(s): Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Nestlé USA v. Doe I, No. 19-416 [Arg: 12.1.2020]

Issue(s): (1) Whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity; and (2) whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations.

Cargill v. Doe I, No. 19-453 [Arg: 12.1.2020]

Issue(s): (1) Whether the presumption against extraterritorial application of the Alien Tort Statute is displaced by allegations that a U.S. company generally conducted oversight of its foreign operations at its headquarters and made operational and financial decisions there, even though the conduct alleged to violate international law occurred in – and the plaintiffs suffered their injuries in – a foreign country; and (2) whether a domestic corporation is subject to liability in a private action under the Alien Tort Statute.

Department of Justice v. House Committee on the Judiciary, No. 19-1328 [Arg: 12.2.2020]

Issue(s): Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

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Anything catch your eye?

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I have a direct interest in the Cargill v Doe case. :smile: It has major ramifications directly for us and for transnational businesses in general. We are extremely confident the Supreme Court will reverse the Ninth Circuit and end extraterritorial applications of the Alien Tort Act.

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That one looked interesting to me as well, although I haven’t studied on it.

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I have made a couple of trips to the Côte d’Ivoire. No one is denying that Malians are being trafficked as chattel slaves in the Côte d’Ivoire on the cocoa plantations. We buy cocoa beans from Côte d’Ivoire markets. So basically they are trying to find us as being liable for aiding and abetting slavery in the Côte d’Ivoire and trying to use the Alien Tort Statute to establish jurisdiction in federal court. We are arguing that existing Supreme Court precedent denies jurisdiction.

Hopefully we will have a final answer by March.

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The first oral argument of the 2020 Term will be Carney v Adams.

Issues : (1) Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the state’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”; (2) whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than 50 years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts; and (3) whether the respondent, James Adams, has demonstrated Article III standing.

(Note: The third question was added by the Supreme Court when they granted this case.)

Delaware requires their three top courts to have a partisan balance. Therefore, none of those courts can have more than a “bare majority” of judges of a major political party. If a court has an even number of judges, the balance of parties must be even. If a court has an odd number of judges, for example seven, the balance can be no more than 4 to 3.

Respondent Adams, a Delaware attorney, was previously a Democrat but became an Independent in 2017. He applied for open judgeships, that, by law, would be reserved for Republican candidates and was refused. He challenged the law in Federal Court and ultimately prevailed at the Third Circuit. Governor Carney then filed a Petition for a Writ of Certiorari with the Supreme Court which was granted.

I think the Supreme Court has shown their cards by adding the standing question when they granted this case. I think their intent is to vacate the Third Circuit’s judgement and remand to the District Court to dismiss this case for lack of standing by the Plaintiff/Respondent.

It is a fascinating case in light of the continuous efforts by both political parties to stack the Federal Courts with judges of their liking. In Delaware, that sort of behavior is currently impossible.

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You misunderstand.

I don’t want other posters to derail the thread by turning it into a discussion of the vacancy, since there are plenty of existing threads on that subject. I am just trying to confine this thread to a discussion of the cases under consideration.

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not sure that argument is the best to go with. The SCOTUS is only bound by precedent by the degree to which its justices believe stary decicis should prevail against other more just arguments or the wider implications of changing it. seems a weak argument to make to the SCOTUS as a primary argument.

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if it were federal i’d say the law should be struck down. these are state courts governed by the states constitution. i don’t see where there is any federal issue at all

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The main order list from the Long Conference was released this morning.

(Note: I interrupt this post to say, Clarence Thomas is speaking at oral arguments. Back to the post.) :smile:

The Court has requested the views of the Solicitor General in this rather unusual original jurisdiction case.

Issue : Whether Washington state’s denial of port access to ship Montana and Wyoming coal to foreign markets violates the commerce clause.

Not a “water war” case, but possibly a case that the Supreme Court will take on original jurisdiction, though the Supreme Court is extremely loath to take original jurisdiction cases on the whole. And yes, they should take this case and tell Washington State to ■■■■ off. UNMISTAKEABLY a violation of the commerce clause.

Issue : 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).

The court called for the views of the Solicitor General in the above case.

Issues : (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.”

The court called for the views of the Solicitor General in the above case.

Kim Davis’ Petition for a Writ of Certiorari was denied, however, Justice Thomas, joined by Justice Alito, wrote a statement respecting denial regarding the case.

Justice Sotomayor wrote two statements respecting denial of certiorari, one in a habeas case, the other in a case regarding the death penalty.

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Wow, that Kim Davis is still a thing. If I understand correctly she was petitioning to have qualified immunity to stave off being sued. She lost at the SCOTUS and now the suit can continue.

It’s one thing to not want do something against your religious beliefs, it’s another to order subordinates not to do their job because of your religious beliefs.
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.WW, PSHS

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Here is the summary from her Petition:

QUESTIONS PRESENTED

The Questions Presented for this Court’s review are:

  1. Whether the Sixth Circuit erred when, citing Obergefell v. Hodges, it created a special standard for a same-sex couple’s claimed temporary burden on the constitutional right to marry, and thereby refused to apply this Court’s tiered “direct and substantial burden” analysis in Zablocki v. Redhail regarding right-to-marry cases for different sex couples.

  2. Whether the Sixth Circuit erred by refusing to follow this Court’s repeated instruction “not to define clearly established law at a high level of generality,” Ashcroft v. al-Kidd, and thereby rejecting a county clerk’s qualified immunity claim for temporarily suspending all marriage licenses bearing her name and authority in only one of 120 Kentucky counties in the immediate aftermath of Obergefell, while Kentucky’s comprehensive marriage laws and forms that govern every duty of the clerk were being re-written, and while seeking a successful accommodation for her sincerely held religious beliefs.

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Am I reading that right?

#2 being qualified immunity for her suit.

#1 - Still trying to overturn same-sex civil marriage?

(Kind wish the order was switched so I could refer to still trying to overturn same-sex civil marriage as a solid #2. LOL)
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.WW, PSHS

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I like the Wyoming Montana case.

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Very good case.

I would LOVE to be the Special Master for the case if/when the Supreme Court takes it.

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This is one I feel actually is a SCOTUS case.