As the Senate forges ahead with Judge Amy Coney Barrett's high court nomination, the current members of the Supreme Court will begin the 2020 term with two weeks of oral argument. The court will continue to hear cases via teleconference, following the same questioning format as it did in May.
From the First Amendment to the special counsel's investigation, the court's docket this year has no shortage of blockbuster topics. And with the nation hurtling toward a presidential election amid the spread of a deadly virus that has now infected President Donald Trump and led an unprecedented number of voters to cast ballots remotely, the biggest case this term might be one that hasn't even been filed yet.
Republicans already have been laying the groundwork to allege massive fraud in mail-in voting this fall, after many states encouraged voting by mail in response to the public health risk that the coronavirus poses to casting ballots in person. Now, Democrats are warning that a Justice Barrett could give Trump an even greater advantage in a hypothetical Supreme Court case over ballot counting that evokes the 2000 Bush v. Gore
decision.Over the next nine months, the country will learn more about the direction of the Supreme Court in the absence of Justice Ginsburg, its liberal anchor for 27 years, and whether a new conservative supermajority will energize calls on the left for court-packing or other "reform" measures. Here are the cases to watch this term.
LGBTQ Discrimination in Foster Care
In Fulton v. Philadelphia, the Supreme Court will weigh whether the city violated the First Amendment when it cut ties with a Catholic foster care agency after learning that the agency would not place children with same-sex couples.
Compared to last term, Fulton v. Philadelphia is among only a few "culture war" cases on the docket. But experts say the city's fight with Catholic Social Services could spawn a sweeping change in how courts around the country handle claims by religious people and organizations that laws burden their ability to exercise their religion.
In Fulton, the Supreme Court is considering whether to overturn a 30-year-old precedent that conservatives think makes it too hard to sue over laws that burden religion. That ruling, Employment Division v. Smith
, held that litigants cannot challenge "neutral" and "generally applicable" laws under the free exercise clause.Instead, conservatives want the Supreme Court to apply more scrutiny to laws that burden religion, even if they are neutral and apply generally.
"The stakes are enormous," Steven J. Heyman, a Chicago-Kent College of Law professor who filed an amicus brief in the case, told Law360 recently. "This would just be a fundamental change in the court's doctrine about religious liberty."
Experts were divided on whether Chief Justice John Roberts Jr. will supply the fifth vote to formally overrule Smith. But the court is planning to hear the case on Nov. 4 and Republicans are hoping to have Judge Barrett confirmed by then. If so, she could be a decisive factor in the case.
Affordable Care Act in Crosshairs
The week after the presidential election, the Supreme Court will hear oral arguments in California v. Texas, a case that poses a mortal threat to the decade-old Affordable Care Act.
Trump and a group of states led by Texas have argued in court filings that the court should strike down the entirety of the ACA in light of a congressional change to the law's individual mandate to maintain health insurance or pay a tax penalty.
The argument goes that Congress' elimination of the penalty — previously upheld under congressional taxing power — rendered the mandate unconstitutional, and that the mandate's importance means the entire ACA must fall.
With the hearing set for Nov. 10, Judge Barrett is expected to participate in the case, and Democrats fear she could cast the decisive vote to get rid of the law. Much of that fear stems from a law review article she wrote seemingly criticizing Justice Roberts' previous decision upholding the ACA.
Judge Barrett may agree that the individual mandate is now unconstitutional, but legal experts aren't sure she further agrees that means the entire ACA must fall as a result.
Copyright Clash of the Tech Titans
The first week of the new term, the justices will referee a yearslong copyright battle between Google and Oracle over smartphone software that could lead to a landmark decision on intellectual property.
The high court showdown comes more than nine years after Oracle first sued Google for using copyrighted pieces of the Java software language when it built the Android smartphone platform.
In a pair of questions worth billions of dollars, the justices are considering whether software interfaces can be protected by copyright or whether Google's use of the software interface to build a new computer program constitutes fair use.
Google brought the appeal after lower appeals courts twice sided with Oracle, with Oracle now seeking more than $10 billion in damages.
Google has received an outpouring of support in the case from other tech giants, including Microsoft and IBM. Apple co-founder Steve Wozniak as well as the inventor of the C++ programming language said in a brief in support of Google that the behavior Oracle is trying to ban had "unleashed the personal computer revolution."
The federal government has come to Oracle's defense in the case, saying that the "Copyright Act as a whole makes clear that computer programs are copyrightable despite that functional character."
Thomas Goldstein of Goldstein & Russell PC, the co-founder and publisher of SCOTUSblog, will argue Google's appeal on Oct. 7, going up against Orrick Herrington & Sutcliffe LLP's Josh Rosenkranz for Oracle. Deputy Solicitor General Malcolm Stewart will argue for the government in support of Oracle.
Mueller Saga Reaches High Court
On Dec. 2, the Department of Justice will urge the Supreme Court to preserve redactions on special counsel Robert Mueller's report to Congress describing the president's efforts to interfere in his investigation.
A district court, followed by the D.C. Circuit, ordered the DOJ to hand over to lawmakers transcripts, exhibits and other information considered by Mueller's grand jury — which Democrats are seeking as part of their still ongoing impeachment inquiry of Trump.
Those orders are now on hold as the Supreme Court is weighing whether the House's request falls under an exception to grand jury secrecy for a "judicial proceeding," which an impeachment inquiry is not, according to the DOJ.
The fact that the justices agreed to hear the DOJ's appeal was seen as a victory for Trump, given that it ensured that House Democrats would not get access to the full Mueller report until well after the presidential election, if at all. With arguments scheduled for early December, a decision in the case won't be likely until after the current House session ends on Jan. 3.
More Attacks on Federal Agencies
The Supreme Court could continue its assault on the power and independence of federal agencies this term with two cases involving the Federal Trade Commission and the Federal Housing Finance Agency.
In Collins v. Mnuchin, the justices will consider whether the structure of the FHFA, a housing regulator set up after the 2008 crash, is unconstitutional because it has a single director who can only be removed by the president for cause.
Investors have challenged the structure of the agency as part of their attack on the FHFA's conservatorship of Fannie Mae and Freddie Mac, which have paid billions in profits to the U.S. Treasury under the terms of the mortgage giants' government rescue after the crash.
Given that the justices already ruled this structure to be constitutionally unacceptable at the Consumer Financial Protection Bureau, the investors argued that the FHFA's structure should fare no better. Oral argument is set for Dec. 9.
In another pair of consolidated cases this term, the justices will consider a challenge to the FTC's long-claimed power to demand restitution, a key weapon in its fight against bad marketplace behavior.
At issue is whether Section 13(b) of the FTC Act allows the agency to seek money damages in federal court. Since the section became law in the early 1970s, courts have generally found that it does, and the FTC has made it a cornerstone of the commission's consumer protection program, using it to recover money lost to violators.
The cases — AMG Capital Management LLC v. FTC and FTC v. Credit Bureau Center et al. — come from the Ninth Circuit and Seventh Circuit, which came to different answers to the question. It's still unclear whether Judge Barrett, currently a judge on the Seventh Circuit, would participate in the case if confirmed. The hearing date hasn't been set.
Child Slavery in the Chocolate Industry
On Dec. 1, the Supreme Court will consider whether Nestlé and Cargill can be on the hook for allegations that they benefited from African child labor in a case being watched closely by the corporate world for potential liability for human rights abuses abroad.
According to the companies, the Ninth Circuit's ruling that they can be held liable under the Alien Tort Statute has created a circuit split across the country, and pro-business groups along with the Trump administration are urging the Supreme Court to adopt a narrower reading of the statute.
The case was filed in 2005 by plaintiffs who said they were trafficked from Mali and labored on Ivory Coast plantations as child slaves. A Ninth Circuit panel ruled in October 2018 that the companies couldn't duck the suits, and the full Ninth Circuit denied en banc rehearing in July 2019, with several circuit judges joining a sharp dissent.
The plaintiffs claim that Nestlé and Cargill have overstated the existence of a circuit split and that other courts have recognized corporate liability under the tort statute. "Respondents have alleged Nestlé's frequent site visits to Ivorian farms indicate they were fully aware of the use of child slavery to produce cocoa," the plaintiffs told the Supreme Court in December. "The allegations of aiding and abetting child slavery through means of financial assistance and tacit approval to their exclusive suppliers are enough to overcome the presumption against extraterritoriality."
--Additional reporting by Jeff Overley, Kevin Stawicki, Bill Donahue, Matthew Perlman, Jon Hill, Christopher Cole and Jon Steingart. Editing by Jill Coffey.
For a reprint of this article, please contact reprints@law360.com.