Preview of the US Supreme Court's October Term 2021
The justices return from their annual summer vacation to an exciting docket. Most of the popular attention will focus on the legality of state restrictions on abortion, but the justices will decide interesting questions in several other areas of law.
October 06, 2021 at 12:54 PM
6 minute read
The U.S. Supreme Court justices return from their annual summer vacation to an exciting docket. Most of the popular attention will focus on the legality of state restrictions on abortion, but the justices will decide interesting questions in several other areas of law:
Constitutional Law—First Amendment:
- Carson v. Makin (1st Cir.)—whether a state violates the First Amendment or equal protection clause of the U.S. Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious instruction.
- City of Austin, Texas v. Reagan National Advertising of Texas (5th Cir.)—whether the city of Austin's distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation.
- Houston Community College System v. Wilson (5th Cir.)—whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member's speech.
Constitutional Law—Other:
- New York State Rifle & Pistol Association v. Corlett (2nd Cir.)—whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
- Hemphill v. New York (NY)—whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at a trial "opens the door" to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.
- Dobbs v. Jackson Women's Health Organization (5th Cir.)—whether all pre-viability prohibitions on elective abortions are unconstitutional.
Criminal Law:
- Thompson v. Clark (2nd Cir.)—whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has "ended in a manner that affirmatively indicates his innocence."
- United States v. Tsarnaev (1st Cir.)—whether the respondent's capital sentences must be vacated on the grounds that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had encountered about respondent's case.
Labor/Employment:
- Cummings v. Premier Rehab Keller (5th Cir.)—whether the compensatory damages available under Title VI include compensation for emotional distress.
- Hughes v. Northwestern University (7th Cir.)—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. Section 1104(a)(1)(B).
- CVS Pharmacy v. Doe (9th Cir.)—whether Section 504 of the Rehabilitation Act of 1973—and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the "enforcement mechanisms" of other federal antidiscrimination statutes—provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.
National Security:
- Federal Bureau of Investigation v. Fazaga (9th Cir.)—whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 (FISA) displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.
- United States v. Zubaydah (9th Cir.)—whether the lower court properly rejected the government's assertion of the state-secrets privilege based on the court's own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. Section 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
Arbitration:
- Servotronics v. Rolls-Royce PLC (7th Cir.)—whether the discretion granted to district courts in 28 U.S.C. Section 1982(a) to render assistance in gathering evidence for use in "a foreign or international tribunal" encompasses private commercial arbitral tribunals.
- Badgerow v. Walters (5th Cir.)—whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act anytime the underlying dispute involved a federal question.
Health Care:
- Gallardo v. Marstiller (11th Cir.)—whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid's payment of a beneficiary's past medical expenses by taking funds from the portion of the beneficiary's tort recovery that compensates for future medical expenses.
- American Hospital Association v. Becerra (D.C. Cir.)—whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data.
- Becerra v. Empire Health Foundation (9th Cir.)—whether, for purposes of calculating additional payment for hospitals that serve a "significantly disproportionate number of low-income patients," the Secretary of Health and Human Services has permissibly included in a hospital's Medicare fraction all of the hospital's patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless whether Medicare paid the hospital for those particular days.
- Becerra v. Mayor & City Council of Baltimore (4th Cir.)—whether the Department of Health and Human Services' rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency's statutory authority; and whether the rule is the product of reasoned decision-making.
Other:
- Securities—Pivotal Software v. Tran (Cal. Super. Ct.)—whether the Private Securities Litigation Reform Act's discovery-stay provision applies to a private action under the Securities Act of 1933 in state or federal court, or solely to a private action in federal court.
- Intellectual Property—Unicolors v. H&M Hennes & Mauritz (9th Cir.)—whether 17 U.S.C. Sections 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in a subject copyright registration.
- Civil Procedure/Jurisdiction—Cameron v. EMW Women's Surgical Center, P.S.C. (6th Cir.)—whether a state attorney general should be permitted to intervene after a federal court of appeals invalidates a state statute (restricting abortion) when no other state actor will defend the law.
At present, the court's docket is light, and a few high-profile cases will dominate the coverage of the first half of the term. In the coming weeks, though, the court will announce additional cases in which it will hear oral argument in early 2022. By the time we reach late June, it may be one of those cases that we remember most about this term.
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