Over the next two weeks or so, the Supreme Court is expected to issue 21 opinions in cases that were argued during the 2020-2021 term, on topics ranging from the constitutionality of the Affordable Care Act to whether schools can regulate off-campus speech by students.
WASHINGTON, DC — June 14, 2021 — There is no way to know when a particular decision will be released, nor is there any way to know which justice is the author of a particular decision until it is released on the court’s website. Having said that, as the end of the court’s term draws closer, you can sometimes find some clues. The justices try very hard to divide the workload of opinion writing evenly, not only over the course of the term but also from month to month. This means, for example, that if only one case remains undecided from a particular month’s argument calendar, and there is only one justice who has not yet written an opinion that month, that justice is probably writing the remaining opinion.
We are still waiting on two opinions – perhaps the highest-profile cases of the entire term – from the court’s November calendar. In Fulton v. City of Philadelphia (argued Nov. 4, 2020), the justices are weighing in on a lawsuit filed by Catholic Social Services, a Pennsylvania organization that works with the city of Philadelphia to certify prospective foster parents. When city officials learned that CSS would not certify same-sex couples because of its religious beliefs, the officials instructed the agency responsible for foster care to cut off referrals to CSS. CSS and two longtime foster parents then went to federal court, where they argued that the city’s action violates CSS’ religious freedom. After the lower courts refused to order the city to resume referrals to CSS, the challengers went to the Supreme Court, which heard argument in November.
California v. Texas and Texas v. California (argued Nov. 10, 2020) are the latest challenges to the Affordable Care Act – and the second to the ACA’s individual mandate, the provision of the law that requires virtually all Americans to buy health insurance. A divided Supreme Court rejected a challenge to the constitutionality of the mandate in 2012, with Chief Justice John Roberts joining the court’s four more liberal justices in agreeing that the mandate imposes a tax on the failure to buy health insurance. A group of 18 states with Republican attorneys general and governors (along with two individual plaintiffs) returned to court, where they argue that the mandate is now unconstitutional because Congress reduced the penalty for failing to obtain health insurance from $695 to zero. There are (potentially) three issues before the justices. A threshold question that they must resolve is whether the challengers have a legal right to sue, known as standing. If the justices conclude that at least one of the challengers has standing, then they will move on to decide whether the mandate is constitutional. And if at least five justices agree with the challengers that the mandate is unconstitutional, then the court must determine whether the rest of the ACA can survive, or whether it too must be struck down.
Three justices – Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito – have not yet written opinions for the November calendar. On the other hand, the court’s November calendar is only expected to yield eight opinions, making it hard to predict who’s writing what. Conventional wisdom has Roberts taking the ACA case and Alito (who has been the author of several prior important decisions involving religion) writing in Fulton, but we won’t know for sure until the opinions are released.
In Cargill v. Doe and Nestle USA v. Doe (argued Dec. 1, 2020), the justices are considering whether a lawsuit brought by former child slaves in Ivory Coast under the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, can continue. The plaintiffs contend that the defendants in the case, Nestle and Cargill, aided and abetted human rights abuses because they bought cocoa beans from cocoa plantations in Ivory Coast even though the companies knew the plantations used child slavery. There are two main questions in the case: whether U.S. corporations can be defendants in lawsuits brought under the ATS; and whether the ATS applies when the conduct at the case happened outside the United States.
Collins v. Yellen and Yellen v. Collins (argued Dec. 9, 2020) are a $124 billion dispute arising from the 2008 housing crisis, which prompted Congress to create the Federal Housing Finance Agency to regulate mortgage giants Fannie Mae and Freddie Mac. FHFA entered into an agreement with the Treasury Department to provide funding for Fannie and Freddie; a 2012 amendment to that agreement led to the case now before the court. Three shareholders challenged the amendment, arguing both that the FHFA and the Treasury Department lacked the authority to enter into the amendment and that, in any event, the statute that created the FHFA is unconstitutional because it only allows the president to fire the agency’s director “for cause.” The Supreme Court agreed last year to weigh in on those questions.
Gaming the court’s December calendar to determine who might be writing in the two remaining cases is proving to be equally difficult. The justices issued not one but two unsigned opinions – in the census case Trump v. New York and a brief decision in Republic of Hungary v. Simonsending the case back for further review in the wake of its decision on the same day in Federal Republic of Germany v. Philipp. They also dismissed one December case, Henry Schein, Inc. v. Archer and White Sales, as improvidently granted. We do know that Alito and Breyer have not yet written for December, although we also know that Breyer, who dissented in the census case, would not have been the author of that unsigned ruling; Justices Clarence Thomas and Neil Gorsuch have also not yet written a (signed) opinion for December.
With only five arguments in total, January was a light month for the justices. The only case from January that has not yet been decided is Johnson v. Guzman Chavez (argued Jan. 11, 2021), involving a technical but significant question of immigration law: whether noncitizens whose deportation orders have been reinstated, and who therefore would normally be deported without any real formal process, have a right to be released on bond if they also have a claim that would bar their removal to another country under the Convention Against Torture. Roberts and Alito have not yet written opinions for January, nor have Justices Sonia Sotomayor and Elena Kagan.
In Lange v. California (argued Feb. 24, 2021), the justices are considering the case of a northern California man who failed to stop when a California Highway Patrol officer who had been following him in his car turned on his overhead lights. Instead, Arthur Lange continued to his home and into his garage, where the officer followed him – and, the officer said, smelled alcohol. Testing revealed that Lange’s blood-alcohol level was nearly three times the legal limit. The question before the Supreme Court is whether the officer’s entry into the garage was justified, even though he did not have a warrant, because he was in “hot pursuit” of Lange.
Smith & Nephew v. Arthrex, United States v. Arthrex and Arthrex v. Smith & Nephew (argued Mar. 1, 2021) are a trio of cases arising from a patent infringement dispute: Arthrex sued Smith & Nephew for infringing its patent for a surgical device. The main question in the case is whether the administrative patent judges of the U.S. Patent and Trademark Office, who ruled that several claims of Arthrex’s patent were unpatentable, are “principal officers” who should have been appointed by the president. If the justices agree with Arthrex that they are, the justices then must determine what the remedy should be for the violation of the Constitution’s appointments clause.
In Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee (argued Mar. 2, 2021), the court is considering challenges to two different Arizona voting rules. The first, known as the “out of precinct” policy, requires election officials to discard an entire ballot if it was cast in the wrong place. The second bans “ballot harvesting” – the collection of ballots by third parties. Arizona’s attorney general and the state’s Republican Party went to the Supreme Court after the U.S. Court of Appeals for the 9th Circuit ruled that both policies violate Section 2 of the federal Voting Rights Act, which bans racial discrimination in voting.
With only six opinions expected, the February argument calendar – which includes the Arthrexcases and the Arizona voting cases, even though they were argued in March – will be a tough one to game. Sotomayor and Gorsuch have already written for February, so they are unlikely to write again, as is Justice Amy Coney Barrett, who wrote for the court in the interstate water battle Florida v. Georgia.
The justices kicked off their March calendar with oral arguments in Cedar Point Nursery v. Hassid (argued Mar. 22, 2021), a challenge to a California regulation that allows union organizers to enter the property of agricultural businesses to speak with employees about supporting a union. Two California businesses argued that by giving the organizers access to their property, the regulation created a legal right to use the property without their consent or compensation, in violation of the Fifth Amendment. The lower courts rejected that argument, but the Supreme Court agreed in November 2020 to review the question.
One week after the argument in Cedar Point, the court heard Goldman Sachs Group v. Arkansas Teacher Retirement System, involving the test that district courts should use in determining whether to certify a class of shareholders in lawsuits alleging securities fraud. [My husband, Tom Goldstein, argued the case on behalf of the retirement system.]
In TransUnion LLC v. Ramirez (argued Mar. 30, 2021), the justices are considering whether either the Constitution or the federal rules governing class actions allow a case alleging a violation of the Fair Credit Reporting Act to go forward, even when most members of the class were not harmed at all and any harm that they did suffer was nothing like that of the lead plaintiff.
In National Collegiate Athletic Association v. Alston and American Athletic Conference v. Alston(argued Mar. 31, 2021), the justices are reviewing an antitrust challenge by college basketball and football players to the NCAA’s rules on compensation for athletes. The 9th Circuit ruled that the NCAA could restrict benefits that are unrelated to education, such as cash salaries, but it barred the NCAA from limiting benefits, such as free laptops or paid post-graduate internships, related to education. The justices agreed in December to weigh in.
Because we are only expecting six opinions for March, we likely can rule out Breyer (who wrote the decision in United States v. Cooley (argued on Mar. 23) and Thomas (author of the decision in Caniglia v. Strom (argued on Mar. 24)) as authors of the four remaining decisions. Without any more information, however, it’s almost impossible to make any predictions at this point.
After lighter argument schedules in the first part of 2021, the justices finished off the term with a bang, hearing 12 arguments in April – and adding an extra argument in May. First up (on Apr. 19, 2021) were the consolidated cases Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, in which the court is considering whether Alaska Native corporations – special corporations created by Congress in 1971 to receive land and money under the Alaska Native Claims Settlement Act, which settled land claims by Alaska natives – are “Indian tribes” eligible to receive millions of dollars in federal COVID-19 relief funding.
In Greer v. United States (argued Apr. 20, 2021) and United States v. Gary (same), the justices are considering two cases that follow from the court’s 2019 ruling in Rehaif v. United States, in which it held that a defendant can only be convicted as a felon in possession of a gun if he knew both that he had a gun and that he was a felon who, as a result, was not allowed to have a gun. The question before the court in Greer centers on whether a jury verdict can stand when the jury did not consider whether Greer realized he was a felon; in Gary, the issue centers on whether Gary’s guilty plea must be vacated when the district court did not advise him that one element of his offense is knowing that he was a felon.
In Minerva Surgical v. Hologic (argued Apr. 21, 2021), the justices are considering whether to abolish a doctrine known as patent assignor estoppel, which bars an inventor from challenging the validity of the patent on his own invention – for example, when he is sued for patent infringement after assigning the rights to the patent to someone else.
Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta (argued Apr. 26, 2021) are a pair of challenges by two conservative advocacy groups to a policy of the California attorney general’s office that requires charities to disclose the names and addresses of their major donors. The 9th Circuit rejected the groups’ argument that the policy violates the First Amendment, and the Supreme Court agreed in January to take up the case.
The question before the court in HollyFrontier Cheyenne Refining v. Renewable Fuels Association (argued Apr. 27, 2021) is whether small oil refineries can take advantage of a compliance exemption in the Renewable Fuel Standard program, which is part of the Clean Air Act, if they have not received that exemption every year since 2011.
Mahanoy Area School District v. B.L. (argued Apr. 28, 2021) is sometimes known as the case of the “cussin’ cheerleader.” Then 14-year-old Brandi Levy was suspended from her school’s cheerleading team for a year after coaches saw screenshots of her post on the app Snapchat: a photo in which she had her middle finger raised, with the caption “fuck school fuck softball fuck cheer fuck everything.” Levy argues that the suspension violated the First Amendment; the question now before the court is whether the court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, holding that public school officials can regulate speech that would substantially disrupt the school’s work, also applies to student speech that occurs off campus.
PennEast Pipeline Co. v. New Jersey (argued Apr. 28, 2021) arises from PennEast’s efforts to build – over New Jersey’s objection – a 116-mile natural-gas pipeline through Pennsylvania and New Jersey. The legal question in the case centers on the effect of the federal Natural Gas Act on states’ sovereign immunity. When New Jersey opposed the pipeline, PennEast attempted to use eminent domain to obtain land (some of it belonging to New Jersey) for the pipeline; New Jersey countered that it was shielded from lawsuits in federal court by the 11th Amendment.
Terry v. United States (argued May 4, 2021) was originally scheduled for argument in March, but the argument was delayed after the Biden administration changed positions, prompting the justices to appoint a “friend of the court” to defend the ruling below. At issue in Terry is whether a group of defendants who were sentenced for low-level crack-cocaine offenses are eligible to be resentenced under the First Step Act of 2018.
It has only been six-and-a-half weeks since the end of the April sitting, but the court has already released four decisions, written by four different justices, from that session. With nine more decisions to come (including Terry), some of those four justices – Thomas, Alito, Sotomayor and Kagan – could be writing again, making it hard to make any predictions at this point.