This Week’s Brief: October 28

Another very quiet week for the Justices: no decisions, no oral arguments, a few miscellaneous orders, and just one cert grant in a securities-law case. But have no fear—with the November sitting beginning next week, the Supreme (Court) machine will soon awaken from its quiet idle and roar into its normal, high gear. For now, here’s a short rundown of the little drummings of action this week at 1 First St. NE.


This Week:
Decisions: 0
Oral Arguments: 0
Cert Grants: 1

O.T. 2019:
Cases Decided: 0
Cases Remaining: 49
Weeks Left in Term: 34


The Court held no proceedings on Monday and Tuesday.


The Court released a miscellaneous order Wednesday afternoon in Bank of America, Corp. v. City of Miami. The City of Miami sued Bank of America and a number of other U.S. banks under the Fair Housing Act (FHA) for discriminatory lending practices in the Miami housing market. The district court dismissed the suit, holding that Miami had not met the FHA’s proximate cause requirement—that is, that Miami had failed to show that the direct cause of the alleged discriminatory lending practices stemmed from the banks’ loans. But on appeal, the Eleventh Circuit reversed and ordered a trial. The banks then appealed to the Supreme Court, asking the Justices to stay the Eleventh Circuit’s decision and review whether the Eleventh Circuit used the correct standard in finding that Miami had demonstrated proximate cause. But the Justices—with no noted dissents—declined to intervene and denied the petition, allowing the suit to move forward.


The Court held no proceedings on Thursday.


The Court released another miscellaneous order early Friday afternoon. First, for the three DACA cases on its docket, the Court extended the time allotted for oral argument to 80 minutes (up from the regular 60). Solicitor General Noel Francisco will have 40 minutes to defend the government’s position, and 20 minutes each will be given to the state and private respondents. The Court hears oral argument in DHS v. Regents of the University of California on Tuesday, November 12. I touched on the DACA cases in my term preview.

Second, the Court added Liu v. Securities and Exchange Comm’n (SEC) to its docket for O.T. 2019, the securities-law case of Charles Liu and Xin Wang. Liu and Wang approached a number of Chinese investors over the prospect of building a cancer-treatment center, receiving $27 million in investment funds. But instead of building the center, the pair turned right around and deposited the money in their personal, overseas accounts. The SEC sued the two men under federal securities laws, and a federal district court ordered “disgorgement”—that is, ordered Liu and Wang to pay the SEC nearly all the money they had obtained illegally ($26.7 of the $27 million).

After the Ninth Circuit affirmed the ruling, the two men appealed to the Supreme Court. They argue, first, that disgorgement is a penalty for violations of securities law. Next, they claim that according to the federal securities laws under which the SEC charged them, the SEC can only seek injunctive relief, equitable relief, or civil monetary penalties (a fine up to $8 million). So, the argument goes, the SEC cannot seek disgorgement of $26.7 million since that would be a penalty that is beyond those three remedies just mentioned and for which there is no provision in the federal securities laws under which the SEC charged them.

The Justices will determine whether that argument holds sway. The question presented before the Court is whether the SEC can place disgorgement under the umbrella of “equitable relief” under the relevant federal securities laws.

In addition, the Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant review for any of them. We can expect news from this conference in the Court’s Orders list on Monday, November 4. Some high profile cases the Justices are considering include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights. Box has been relisted SIX times since first appearing at a private conference on April 23, 2019.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law that prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law (and others like it in cities and states around the country) under the Supremacy Clause of the Constitution. The Justices have yet to discuss this case at a private conference.
  • Chiafalo v. United States. This case concerns the constitutionality of “faithless electors,” or members of the Electoral College who vote for a different presidential candidate than the one whom a majority of the voters in a state chose. The questions presented are (1) whether a state can dictate how an elector casts his/her vote and (2) whether a law that penalizes an elector for voting “faithlessly” violates the elector’s First Amendment rights. Chiafalo has yet to be discussed at a private conference.
  • Lilley v. New Hampshire. This case involves a challenge to a Laconia, NH city ordinance that prohibits a woman from publicly exposing her breast “with less than a fully opaque covering of any part of the nipple.” Three women charged with violating the ordinance challenged their convictions on the ground that, since the regulation applies to women but not to men, it violates the Fourteenth Amendment. The question before the Court is whether Laconia’s city ordinance violates the Equal Protection Clause of the Fourteenth Amendment. The Justices first discussed Lilley at their October 1 long conference.
  • Thompson v. Hebdon. This case concerns a challenge to an Alaska state law that caps personal contributions to election campaigns at $500 per year. The Ninth Circuit upheld the $500 limit, reasoning that it was obligated to follow circuit precedent as opposed to the Supreme Court’s plurality decision in Randall v. Sorrell (2006). The question before the Court is whether Alaska’s $500-contribution-limit law violates the Free Speech Clause of the First Amendment. The Justices discussed Thompson at this conference.
  • City of Boise, Idaho v. Martin. This case involves two Boise, ID city ordinances that make it a misdemeanor to camp or sleep in public places within city limits. The Ninth Circuit held that the ordinances violate the Eighth Amendment when the city enforces them against the homeless. The question before the Court is whether generally applicable laws that criminalize public camping and sleeping violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Martin has yet to be discussed at a private conference.
The Week Ahead

We’re now into the November sitting, which means oral arguments are set to resume next week. First on Monday morning, at 9:30am, we can expect more orders from this Friday’s conference. Then the Court will hear oral arguments in Barton v. Barr and Kansas v. Glover. On Tuesday, the Justices will hear oral arguments in another two cases, CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd. and Allen v. Cooper. On Wednesday, the Court will hear oral arguments in two more cases, County of Maui, Hawaii v. Hawaii Wildlife Fund (an environmental law case I touched on in my term preview) and Retirement Plans Committee of IBM v. Jander. On Friday, the Court will meet for its weekly private conference.

Finally, it’s worth noting that the Justices may issue their first decision of the term within the next few weeks. Last year, the Court issued its first decision of O.T. 2018 on November 6 and its second on November 27. An early decision like this would be in one of the smaller cases already argued and probably would be unanimous, given the infancy of the Court’s term.

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