U.S. Supreme Court. Photo Michael A. Scarcella/ ALM

The U.S. Supreme Court on Friday announced it will postpone its two-week April oral argument session scheduled to begin April 20.

"The court will consider rescheduling some cases from the March and April sessions before the end of the term, if circumstances permit in light of public health and safety guidance at that time," the court said in a statement. "The court will consider a range of scheduling options and other alternatives if arguments cannot be held in the courtroom before the end of the term." The term traditionally ends in June each year.

The court's postponement of oral arguments had led to increasing speculation by advocates and others as to how the court ultimately would resolve the argument issue. Unlike courts across the country at both state and federal levels, the Supreme Court has been reluctant to adopt the technology that has enabled other courts to continue to hold hearings and arguments without personal appearances by lawyers, judges and litigants in the courthouses.

"What about public access? For the time being, the court is very likely to stick to the view that it is inappropriate to provide video streaming of its proceedings," Goldstein & Russell's Tom Goldstein said in a post this week at SCOTUSblog. "But it will be impossible to maintain that position if the arguments themselves are held remotely. And if the court permits video streaming during the crisis, it will be difficult to justify stopping when it ends."

If the court reschedules arguments for May, "the justices should be prepared to hold argument by audio and video conference if they determine that in-person argument is still unsafe," Ashwin Phatak, appellate counsel at the Constitutional Accountability Center, wrote recently in The Washington Post. "This approach has downsides: Oral argument at the Supreme Court is often boisterous and involves frequent questioning of the advocates, and that will be more difficult electronically. Yet numerous courts of appeals have managed to hold arguments electronically during these challenging times, and the Supreme Court can as well."

The justices have continued to hold their private conferences during the public health crisis. In those conferences, they review new petitions for review and discuss pending cases. The justices have participated remotely with only Chief Justice John Roberts Jr. in the court's conference room.

The court also has continued to issue orders announcing new cases that it will hear next term and decisions from cases already argued in the current term. But instead of issuing orders and decisions from the bench, they have been posting them on the court's website.

The court had scheduled nine hours of April argument time in 11 cases (consolidated cases counted as one) over the two-week period beginning April 20. In March, the justices postponed 11 hours of argument time in 14 cases in the session beginning March 23.

The justices had a number of closely watched cases teed up for arguments in April.

>> The business community homed in on two consolidated cases—Ford Motor v. Montana Eighth  Judicial District Court; Ford Motor v. Bandemer—raising the jurisdictional question of where corporations may be sued. Hogan Lovells partner Sean Marotta is counsel to Ford Motor Co., and Gupta Wessler partner Deepak Gupta represents the respondents.

>> The Chamber of Commerce, drug companies and insurers also are focused on Rutledge v. Pharmaceutical Care Management in which the U.S. Court of Appeals for the Eighth Circuit ruled that the Employee Retirement Income Security Act preempts Arkansas's law regulating claims-processing middlemen known as pharmacy benefit managers. Thirty-six states have similar laws attempting to curb abusive prescription drug reimbursement practices. Arkansas Solicitor General Nicholas Bronni represents the state; Seth Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, is counsel to the company.

>> And business also has been watching Barr v. American Association of Political Consultants, a First Amendment challenge involving the Telephone Consumer Protection Act of 1991, a federal law that has triggered much litigation around the country. Latham & Watkins partner Roman Martinez represents the association.

>> The presidential election made its appearance on the April argument calendar in two cases making constitutional challenges to Washington state and Colorado laws penalizing so-called faithless electors, 2016 presidential electors who failed to cast their ballots as state law directed for presidential and vice presidential candidates who won a majority of the popular vote. The cases are Chiafalo v. Washington and Colorado Dept. of State v. Baca. Harvard Law's Lawrence Lessig represents the electors in both cases. Colorado Solicitor General Eric Olson is counsel to the state and Washington Solicitor General Noah Purcell represents his state.

>> The contraceptive coverage mandate in the Affordable Care Act is once again before the justices, this time in two cases from the U.S. Court of Appeals for the Third Circuit.

The appellate court struck down the Trump administration's 2017 expansion of the "conscience" exemption to providing that insurance to include a broad range of entities with sincere or moral objections. The two cases are Trump v. Pennsylvania and Little Sisters of the Poor v. Pennsylvania. The U.S. solicitor general, representing Trump, will face Pennsylvania Chief Deputy Attorney General Michael Fischer. Mark Rienzi of the Becket Fund for Religious Liberty is opposite Fischer in the Little Sisters of the Poor case.

>> The justices apparently were hoping to try again to resolve an issue that they failed to resolve last term by taking a new case, McGirt v. Oklahoma. Is the eastern half of Oklahoma an Indian reservation for purposes of state court criminal jurisdiction or federal jurisdiction? The court heard arguments last term in Sharp v. Murphy, raising the same issue, but in June ordered reargument. That case is still pending. Jenner & Block partner Ian Gershengorn is counsel to Jimcy McGirt. Oklahoma Solicitor General Mithun Mansinghani represents the state.

The court's building is open for official business but remains closed to the public until further notice.

 

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