This Week’s Brief: November 18

With no cases scheduled for oral argument this week and no decisions yet, I almost expected the Court’s week to be relatively placid. Wrong prediction. President Trump has now steered both of his tax returns cases to the Supreme Court. (I’ll be writing a little post about these cases in the next few days.) Chief Justice Roberts temporarily stayed a mandate from the D.C. Circuit—which had directed Mazars, LLP to turn over Trump’s tax documents to two committees of the U.S. House of Representatives—to allow the full Court time to read both parties’ briefs and consider ways to deal with the tax return cases. In addition, we saw an opinion from Justice Sotomayor dissenting from a denial of cert, a cert grant for a lawsuit between three Muslim men and a number of FBI agents, and a press release about Justice Ginsburg’s health. Here’s your brief for the week of November 18.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 0
Cert. Grants: 1

O.T. 2019:
Cases Decided: 0
Cases Remaining: 54
Weeks Left in Term: 31


The Court released additional orders from last Friday’s private conference. The Justices didn’t add any new cases to their docket, but the orders list did elicit an opinion from Justice Sotomayor in which she dissented from the denial of cert in Peithman v. United States. The case concerns the scope of a limitation on criminal forfeiture as set out in Honeycutt v. United States (2017). If John Doe is convicted of a crime, a criminal forfeiture order says that Mr. Doe must forfeit any “property constituting, or derived from, any proceeds [Mr. Doe] obtained, directly or indirectly, as the result of” his crime (21 U.S.C. §853(a)(1)). However, to what extent can criminal forfeiture be applied to co-conspirators? In Honeycutt, a unanimous Supreme Court held that criminal forfeiture may only be applied to assets that are “tainted” by the crime, and joint-and-several liability stands opposed to §853(a)(1). In other words, if John Doe and someone else (say, Jane Doe) are both convicted of conspiring together to commit a drug crime, and John used the proceeds to buy a $50,000 SUV, John can be ordered to forfeit $50,000 (or the car) but Jane cannot. Jane is not liable for criminal forfeiture under §853(a)(1) since Jane never acquired an asset that was “tainted” by the proceeds from the crime (contra John’s SUV).

A different federal law (18 U.S.C. §981(a)(1)(C)) is very similar to §853(a)(1). The only difference is that §853(a)(1) concerns criminal forfeiture whereas §981(a)(1)(C) concerns civil forfeiture. Here in Peithman, the question was whether Honeycutt‘s reasoning—that §853(a)(1) bars joint-and-several liability for criminal forfeiture proceedings—applies to §981(a)(1)(C)’s civil forfeiture mechanism as well. The Third Circuit has said it does, but two other circuit courts of appeals (including the lower court in Peithman) have disagreed. With the Supreme Court declining to take up Peithman’s petition, it leaves the circuit split in place.

Justice Sotomayor penned a lone dissent from the Court’s decision not to take up the case. She zeroed in on a concession of error the federal government made after Peithman appealed the lower court’s decision to the Supreme Court. Before the Eighth Circuit, the government argued Honeycutt should not apply to §981(a)(1)(C) as it does to §853(a)(1), and the Eighth Circuit agreed (cementing the circuit split). But after Peithman appealed to the Supreme Court, the government backtracked and said it now “agree[s] that Honeycutt‘s reasoning applies to Section 981(a)(1)(C).” It said instead that there is another way to apply joint-and-several liability to civil forfeiture proceedings under §981(a)(1)(C)—just in a way that is different from the method that Honeycutt barred. As a result, Sotomayor would have vacated the Eighth Circuit’s judgment and remanded the case back to the Eighth Circuit so that it could consider whether the government’s new method of applying joint-and-several liability to civil forfeiture proceedings is workable.

In addition, in a miscellaneous order released late Monday morning, Chief Justice Roberts entered an administrative stay of the D.C. Circuit Court of Appeals’ decision that directed Mazars, LLP to turn over President Trump’s personal and corporate tax returns to two committees of the U.S. House of Representatives. Roberts ordered briefings from both parties by the close of business on Thursday, November 21. Per the order, Mazars does not have to comply with the congressional subpoena and turn over the tax documents until “further order of [Roberts] or of the Court.” Administrative stays like this one are commonplace, and it’s likely Roberts stayed the D.C. Circuit’s mandate to allow the full court to review the parties’ briefs and discuss how they should proceed in the case.

Trump is trying to fend off subpoenas for his tax returns on two different fronts: In addition to the D.C. Circuit case, Trump has also appealed a decision from the Second Circuit Court of Appeals in Manhattan. On November 4, the Second Circuit sided with the New York District Attorney in a case involving a similar subpoena served on Mazars for Trump’s tax returns. Before the Second Circuit, Trump argued his tax returns were subject to presidential immunity. But the Second Circuit replied that presidential immunity was irrelevant to the case since the subpoena was served on Mazars—a private, third-party accounting firm with no formal ties to the Executive Branch—not on the President himself. Trump has appealed the Second Circuit’s decision to the Supreme Court. Trump did not have to seek a stay from the Second Circuit’s ruling, however, since the parties there mutually agreed not to enforce the Second Circuit’s ruling until after disposition from the Supreme Court. That case is Trump v. Vance.


The Court held no proceedings Tuesday through Thursday.


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. After the conference, the Court released a miscellaneous order in which it granted cert for Tanzin v. TanvirTanvir stems from a dispute between three Muslim men and the Federal Bureau of Investigation. The FBI approached the three men during investigations into domestic and foreign terrorism and asked them for information about other Muslims. The three men refused, partly on religious grounds. The federal government later placed all three of the men on the “no fly” list. The three men then sued a number of FBI agents in their individual capacities, claiming that the decision to place the three men on the “no fly” list was motivated by religious animus. Under the Religious Freedom Restoration Act of 1993 (RFRA), if the federal government “substantially burden[s]” a person’s ability to exercise their religious beliefs, that person may seek “appropriate relief” from the government (42 U.S.C. §2000bb–1(c)). Here, the three Muslim men seek monetary damages from the FBI agents as “appropriate relief” for what they feel was a “substantial burden[]” on their ability to exercise their religious convictions. The question the Justices will decide is whether RFRA permits suits seeking money damages against individual federal employees.

In addition, some other, 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 release 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.
Over the Weekend

Saturday evening, the Supreme Court issued a press release stating that Justice Ruth Bader Ginsburg was admitted to Johns Hopkins Hospital in Baltimore, MD Friday night after she experienced chills and fever earlier during the day. The release noted that, after being administered IVs and fluids, her symptoms had “abated,” and her condition was not noted as serious in any way. Ginsburg was released from the hospital Sunday morning and is doing well, per a number of media outlets.

Justice Ginsburg has dealt with a few health scares over the past couple months. She missed last Wednesday’s oral arguments with a stomach bug. And over the Court’s summer recess, a press release on August 23 stated that she had completed a three-week course of radiation therapy to treat a tumor on her pancreas. She tolerated treatment well, however, and has since required no further treatment.

The Week Ahead

On Monday morning, at 9:30am, we can expect additional orders from this Friday’s conference. At some point during the next few weeks (perhaps even Monday morning), it’s likely the Court will act upon President Trump’s tax return cases. This could be in the form of a longer stay, or perhaps even a grant or denial of cert. The Court will be closed on Thursday for Thanksgiving, and the Justices will meet for their weekly private conference on Friday.

The Court is finished with oral arguments for the month of November. The next round will begin on Monday, December 2 with New York State Rifle & Pistol Association v. City of New York, New York, a Second Amendment case on the Court’s docket.

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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