This Week’s Brief: November 11

The last week of oral arguments for the November sitting was one that certainly should grab your attention. The Justices heard arguments about the Trump administration’s push to rescind the Deferred Action for Childhood Arrivals program; a case involving a U.S. Border Patrol agent who shot and killed a Mexican teenager across the U.S.–Mexico border; a civil rights case between Comcast and an African-American who owns Entertainment Studios Network; and a case that could have significant ramifications in the world of bankruptcy law. In addition, the Court added three cases to its docket, including a blockbuster copyright dispute between Google and Oracle; declined a petition for a stay of execution; saw its newest Justice (Brett Kavanaugh) give his first public speech since a disputatious confirmation process; and received an appeal from President Trump concerning a subpoena for his personal tax returns. With all that, here’s your brief for the week of November 11.


This Week:
Decisions: 0
Cases Argued: 4
Cert. Grants: 3

O.T. 2019:
Cases Decided: 0
Cases Remaining: 53
Weeks Left in Term: 32


The Court held no proceedings on Veterans’ Day.



First thing Tuesday morning, the Court released more orders from last Friday’s private conference. No new cases were granted. The Court GVR’d Woodberry v. United States in light of Rehaif v. United States (2019).

One noteworthy thing: The Justices denied review in Remington Arms, Co. v. Soto, a petition filed by Remington (a large manufacturer of firearms) in a case against the families of victims in the 2012 Sandy Hook massacre. The families filed suit against Remington in Connecticut state court, claiming that the company violated Connecticut laws governing fair trade practices when it marketed to civilians assault rifles of the kind that was used to carry out the Sandy Hook shooting. Remington responded that it was immune to the suit under the 2005 Protection of Lawful Commerce in Arms Act. But the Connecticut State Supreme Court disagreed; the statute carves out an exception to immunity when a gun manufacturer knowingly violates state or federal gun-sale laws, and the Connecticut Supreme Court determined that exception applied here. Remington appealed to the U.S. Supreme Court, but the Justices denied the appeal. As such, the Justices left the Connecticut Supreme Court’s decision in place and allowed the lawsuit to move forward.

Oral Arguments:

If the orders list was Tuesday’s prelude, the first oral argument was the main event. The first case the Justices heard on Tuesday was Department of Homeland Security v. Regents of the University of California, which concerns the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program. DACA is an Obama-era immigration policy in which the Secretary of Homeland Security may refrain for two years from deporting illegal aliens who were brought to the United States as children. During this time, the alien can apply for work authorization if his/her economic situation requires it, but DACA does not confer citizenship status on any recipient. In 2014, the Obama administration sought to expand DACA but ran into a buzz saw when a collection of 25 states sued to block DACA’s expansion. After a win in federal court, the states amended their complaint to argue that DACA itself violated federal law. When the Trump administration took office, rather than fight the states’ new lawsuit in federal court, the Department of Homeland Security (DHS) simply announced it would wind down the program. A number of other states then sued DHS, arguing that its decision violated the Due Process and Equal Protection Clauses of the U.S. Constitution and a bevy of provisions in the Administrative Procedure Act. The Supreme Court will decide, first, whether they can even review DHS’ decision to draw DACA to a close; and if so, second, whether DHS can lawfully rescind the program. The oral argument in DHS v. University of California is available via audio and transcript.

The other case on Tuesday in which the Justices heard oral argument was Hernández v. Mesa. This case arises from an incident involving a U.S. Border Patrol agent and a Mexican teenager. On June 7, 2010, the Border Patrol agent, who was standing on the U.S. side of the border in El Paso, Texas, shot and killed a Mexican teenager who was standing on the Mexican side of the border in Ciudad Juarez. The Supreme Court will decide whether the victim’s family can sue for damages under Bivens v. Six Unknown Federal Narcotics Agents (1971) and whether the 1988 Westfall Act—which prohibits tort suits filed in state court against “rogue” federal law enforcement officers—is unconstitutional under the Due Process Clauses of the Fifth and Fourteenth Amendments. The oral argument in Hernández v. Mesa is available via audio and transcript.


The Justices heard arguments in two more cases on Wednesday. First up was Comcast Corp. v. National Association of African American-Owned Media (NAAAOM), a dispute between Byron Allen, the African-American owner of Entertainment Studios Network (ESN), and Comcast, a major telecommunications corporation. When Comcast declined to run Allen’s ESN channels on its network, Allen and the NAAAOM sued on the ground that Comcast’s refusal was based on race discrimination, which violates the Civil Rights Act of 1866 (42 U.S.C. §1981). A federal district court tossed the suit, but the Ninth Circuit Court of Appeals reversed. It reasoned that, for Allen’s suit to succeed, he needed to show only that race was one motivating factor behind Comcast’s decision not to run ESN’s shows, not that race was the motivating factor. Put differently, Allen does not need to meet the burden of proof for but-for causation—that is, he does not need to show that Comcast would have run ESN’s shows “but for” Allen’s race. Comcast appealed to the Supreme Court, arguing that §1981 does indeed require but-for causation for claims of race discrimination. The Justices will decide whether that’s the case. The oral argument in Comcast v. NAAAOM is available via audio and transcript.

The latter case argued Wednesday morning was Ritzen Group, Inc. v. Jackson Masonry, LLC. After two high-profile immigration cases and a civil rights case, Ritzen Group is, with respect, markedly less interesting. That said, Ritzen Group has the opportunity to play a significant role in the Court’s bankruptcy law jurisprudence, and the circuit courts of appeals have split on the question the case presents.

When a debtor files for bankruptcy, the U.S. Bankruptcy Code says that the debtor’s bankruptcy petition automatically stays (“puts on hold”) any debt-collection proceedings against the debtor. However, the Bankruptcy Code permits the debt collector to seek relief from the automatic stay if the collector feels the debtor filed for bankruptcy in bad faith. Here, during litigation between the two parties, Jackson Masonry filed for bankruptcy and the bankruptcy court entered an automatic stay. Ritzen Group sought relief from the automatic stay, but the bankruptcy court denied the motion. Ritzen Group then litigated its dispute with Jackson Masonry in the bankruptcy court and ended up losing. Thereafter, Ritzen Group appealed the bankruptcy court’s original order denying relief to a federal district court and the Sixth Circuit Court of Appeals; both courts dismissed the appeal as untimely—that is, Ritzen Group should have appealed directly after the bankruptcy court denied relief, not after waiting until it lost in bankruptcy litigation. In dismissing the appeal, the Sixth Circuit held that a bankruptcy court’s order denying relief from the automatic stay is a “final order” under 28 U.S.C. §158(a)(1), and thus is immediately appealable. Here’s the problem: not all of the other federal appeals courts agree; some have held that it’s not a final order and does not need to be immediately appealed. Ritzen Group argues the other appeals courts are right and the Sixth Circuit is wrong. The Justices will decide whether a bankruptcy court’s order denying a motion for relief from the automatic stay is a “final order” under §158(a)(1). The oral argument in Ritzen Group is available via audio and transcript.

Wednesday afternoon, the Court released two miscellaneous orders in which it declined to stay the execution of Ray Cromartie, a Georgia death-row inmate. There were no noted dissents. Cromartie was convicted of murdering Richard Slysz in 1994 and sentenced to death. In his appeal, Cromartie argued that there was physical evidence in the case that had not yet been subject to DNA testing and that conducting DNA tests on that evidence would exonerate him.


The Court held no proceedings on Thursday.

On a separate note, Justice Brett Kavanaugh made his first major public appearance since his confirmation to the Supreme Court. Kavanaugh spoke to a gathering of Federalist Society members Thursday night at Union Station, just a few blocks north of the Supreme Court building. In his speech, which was light in tone (he made a number of sports jokes), Kavanaugh said a few words about his colleagues on the bench. He thanked Justice Ginsburg for “being so generous to me,” lauded Chief Justice Roberts as “superb and wise,” and referred to the entire Court as a “team of nine.” He also thanked his family and friends who stood beside him throughout his Senate hearings. After a partisan dogfight of a confirmation hearing, Kavanaugh in a subsequent hearing angrily denied Dr. Christine Blasey Ford’s allegations of sexual assault, which nearly derailed his nomination.


The Court granted review for three cases this term in an order released Friday morning. Headlining the trio of cases is Google LLC v. Oracle America, Inc., a high-profile copyright dispute between the two tech giants. When Google updated its Android operating system a few years ago, Oracle claimed it impermissibly used some of Oracle’s Java software code and subsequently sued Google for copyright infringement. In 2016, a jury found against Oracle’s claims and held that Google did not infringe Oracle’s copyright. But last year, the U.S. Court of the Appeals for the Federal Circuit—an appeals court with special jurisdiction over cases concerning intellectual property, patents, and copyrights, among other things—reversed the jury’s finding and held that Google illegally used Oracle’s Java code. Google then appealed to the Supreme Court. In the case, Google has asked the Supreme Court to decide two questions. First, can copyright protection extend to a software interface program? And second, when Google updated its mobile operating system, did its use of the software interface constitute “fair use?” The Court this past April called for the views of the U.S. Solicitor General, and the case has been dubbed the “copyright lawsuit of the decade.”

Next, in United States v. Briggs (consolidated with United States v. Collins), the Court will decide whether the Court of Appeals for the Armed Forces erred in concluding that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years. And in Walker v. United States, the Court will determine whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a ”violent felony” under the Armed Career Criminal Act (18 U.S.C. 924(e)).

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 18. 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.
  • Trump v. Vance. President Trump’s tax returns have now made their way to the Supreme Court. The District Attorney for the County of New York subpoenaed Trump’s tax returns from Mazars LLP, a private, global accounting firm with whom President Trump has conducted business. This subpoena follows two similar requests from committees of the U.S. House of Representatives. Trump argued he did not have to comply with the subpoena because his tax returns were subject to executive immunity. The Second Circuit Court of Appeals, however, said executive immunity is irrelevant to this case—since the subpoena was served on a private, independent, third-party accounting firm, not on the President himself—and ordered Mazars to turn over Trump’s tax returns. Trump appealed to the Supreme Court, asking the Justices to decide whether the subpoena violates Article II and the Supremacy Clause of the Constitution.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
The Week Ahead

On Monday morning, at 9:30am, we can expect additional orders from this Friday’s conference. The Court is finished with oral arguments for the month of November. The next round will begin on the first Monday in December with New York State Rifle & Pistol Association v. City of New York, New York, the Court’s Second Amendment case this term.

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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