This Week’s Brief: December 2

The Supreme Court’s December sitting began this week with oral arguments in six cases. One of those cases concerns the first Second Amendment challenge to reach the Court in ten years. However, much of the discussion at oral argument pertained to mootness—that is, whether the case should be dismissed since it’s no longer really a live case. The Court also denied a stay of execution, added to its docket an intriguing First Amendment case out of Delaware, and declined to grant the Trump administration’s request to resume executing federal prisoners. Finally, Justice Ginsburg entered a one-week administrative stay in one of President Trump’s tax returns cases—the third one to reach the Supreme Court. Here’s your recap of what happened at the Supreme Court this past week.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 6
Cert. Grants: 1

O.T. 2019:
Cases Decided: 1
Cases Remaining: 55
Weeks Left in Term: 29


The Supreme Court listened to oral arguments in two cases on Monday. The first case was the most interesting all week, a Second Amendment case out of New York (New York State Rifle & Pistol Ass’n. v. City of New York, New York).

New York used to have a city regulation that banned the “transport [of] a licensed, locked, and unloaded handgun to a home or shooting range outside city limits.” The New York State Rifle and Pistol Association (NYSRPA) challenged the regulation under the Second Amendment. It also pointed to the Supreme Court’s 2008 decision in District of Columbia v. Heller, in which the Court held that the Second Amendment confers the right to own a firearm for “traditionally lawful purposes,” like self-defense in one’s own home.

NYSRPA lost before the Second Circuit Court of Appeals. In January of this year, the Justices agreed to grant NYSRPA’s appeal. But soon after, the city amended the regulation and now permits residents to transport licensed, locked, and unloaded firearms beyond the city’s borders. In July, the city petitioned the Supreme Court to dismiss the case as moot, since the problematic regulation was no longer in existence. The city even said that its amended regulation “give[s] [NYSRPA] everything they have sought in this lawsuit.” Democratic Representatives and Senators agreed, even going so far as to tell the Justices to dismiss the case so as to “heal itself before the public demands it be restructured in order to reduce the influence of politics.”

The Justices declined to bow to partisan political pressure. They kept the case on the docket and simply directed the parties to litigate the mootness issue. At oral argument on Monday, mootness seemed to play a central role. A number of Justices spoke at length and asked several questions pertaining to whether this case is moot, and the opposing parties each devoted much of their argument time to defending why the case should or shouldn’t be dismissed. The oral argument in NYSRPA is available via audio and transcript.

The second case heard Monday morning was Georgia v. Public.Resource.OrgInc. The case asks whether government edicts—like annotations to a State Code—are copyrightable.

The Supreme Court has held that judicial opinions are not copyrightable works, and thus are available to the public (Banks v. Manchester (1888)). Since then, lower courts have extended this holding to state statutes. These are “government edicts”—official policies and documents that have the force of law. But what about other governmental dicta that do not have the force of law? In this case, that would be annotations to the Official Code of Georgia. The Code itself—the body of state statutes in force—is not copyrightable, but what about the attendant explanations and references (the annotations) to the Code?

Here, Public.Resource.Org, Inc. scanned and uploaded to its website a full version of the Official Code of Georgia, annotations and all. Georgia sued, claiming that the annotations were copyrightable and consequently that Public.Resource.Org, Inc. was in violation of copyright law. Public.Resource.Org, Inc. responded that the annotations were not entitled to copyright protection—that is, that the “government edicts doctrine” extends even to works that lack the force of law, like the annotations to the Office Code of Georgia. The Justices will decide which side is right. The oral argument in Public.Resource.OrgInc. is available via audio and transcript.


The Justices heard arguments in another two cases on Tuesday. They started with Rodriguez v. Federal Deposit Insurance Corp., a tax law case whose question has elicited opposite answers from a number of lower appeals courts. Under the Internal Revenue Code (26 U.SC. §1501), a parent company and its subsidiaries (an “affiliated group”) can all file a single, consolidated income tax return. Next, the Internal Revenue Service (IRS) has said that when an affiliated group files a consolidated return, all communication with the IRS must be done through the parent company (26 C.F.R. §1.1502-77et seq.). This is all well and good. But what happens when the IRS issues a tax refund to the entire affiliated group? To whom does it go?

Three federal courts of appeals (as well as the FDIC) have answered this question using what’s called the Bob Richards‘ rule, dubbed after the Ninth Circuit’s decision in In re Bob Richards Chrysler-Plymouth Corp. (1973). Under that rule, when the tax refund arises because of a certain subsidiary company’s own losses, the tax refund should go to that subsidiary unless the parties in the affiliated group agree otherwise. But four other appeals courts have answered differently. They say that the laws of the state in which the parent company is located will govern who receives the tax return—in some states that might be the subsidiary, and in others it might be the parent company. The Supreme Court will determine which approach is the correct one. The oral argument in Rodriguez is available via audio and transcript.

The second case on Tuesday was Atlantic Richfield Co. v. Christian, an intriguing environmental law case. In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA; known as the “Superfund Act”) to locate and clean up areas of land contaminated with hazardous waste. That same year, a large copper ore smelting plant in southwestern Montana shut down. Soon after, the Environmental Protection Agency (EPA) deemed the area a “Superfund” site. The EPA designated Atlantic Richfield Company (ARCO)—a global oil company that owns the land on which the smelting plant sat—as the entity responsible for managing and cleaning up the site in accordance with CERCLA, and created plan by which ARCO could do so.

In 2016, ARCO completed all the clean-up work the EPA had ordered it to do, spending upwards of $450 million. But a group of residents who lived downstream from the site wanted ARCO to “restore” the land to its original glory. When ARCO refused, the residents filed suit, seeking $60 million in “restoration damages” that would force ARCO to clean up the site. ARCO sought to dismiss the suit, arguing that the residents were “challenging” the EPA’s directives under CERCLA on how to clean up the site, and thus that CERCLA barred the residents from forcing ARCO to do more than what the EPA required. The Montana Supreme Court ruled against ARCO, but the Justices agreed to hear ARCO’s appeal.

The Court will decide three things. One, whether a landowner of a “Superfund site” must obtain EPA approval before engaging in remedial clean-up. (If the answer is “no,” ARCO is absolved of any further clean-up since it has completed the EPA’s requirements.) The second two questions are related to one another; one is specific, the other one is general. The specific question is whether the residents’ claim is a “challenge” to the EPA’s plan on how to clean up the “Superfund site” at issue under CERCLA. The general question is whether CERCLA itself bars state residents from trying to add to the clean-up requirements that the EPA imposes on landowners of “Superfund sites.” The oral argument in Atlantic Richfield is available via audio and transcript.


The Court heard arguments in two more cases Wednesday morning. First on the docket was Intel Corp. Investment Policy Committee v. Sulyma, a highly-technical case that concerns the limitations statute under the Employment Retirement Income Security Act of 1974 (ERISA). Suppose a fiduciary breaches its responsibility or violates ERISA in some way. Under the statute (29 U.S.C. §1113(2)), once a party becomes aware of the breach, it can sue the fiduciary within three years of discovering the breach. Once the three years are up—except in cases of fraud or concealment, whose limitations periods are both six years—the party can no longer sue. In the case at issue here, the Intel committee (the fiduciary) emailed a number of retirement plans and investment opportunities to Christopher Sulyma while he was employed at Intel. After three years had passed since Intel’s emailing, Sulyma sued Intel. He alleged that Intel had improperly allocated retirement plan funds to other investments, and he argued that this constituted a breach of Intel’s fiduciary duties under ERISA.

Seems like this calls for a garden-variety application of ERISA’s limitations statute, right? Indeed, the district court thought so; it dismissed the case, holding that the three years had passing during which Sulyma could have sued. But when Sulyma appealed, the Ninth Circuit reversed. It admitted that there was enough information in the emails for Sulyma to deduce a breach of Intel’s fiduciary duty and file suit. But Sulyma testified he didn’t actually read the emails immediately when they were sent to him—he read them later, within the three-year allotted timeframe. Therefore, the Ninth Circuit ruled that the limitations period did not begin to run immediately when Intel sent the emails—it began to run when Sulyma actually read them, and thus his suit fell within the statute of limitations. Intel appealed, noting that the Sixth Circuit Court of Appeals had recently ruled in the opposite fashion in a similar case.

The Justices will decide who has it right: Is ERISA’s limitations period triggered as soon as the breach information becomes available to the employee, or only when the employee actually becomes aware of the breach? The oral argument in Sulyma is available via audio and transcript.

The final case heard this week was Banister v. Davis, a criminal procedure case. On an interesting sidenote, Gregory Banister—a Texas state prisoner—filed his petition before the Supreme Court pro se, that is, by himself without an attorney. Kudos to him for getting the Supreme Court to grant his own, personal case. At any rate, this case presents a tangled procedural mess involving habeas corpus petitions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and motions to amend judgment under the Federal Rules of Civil Procedure.

Banister was charged and convicted of aggravated assault with a deadly weapon when he struck and killed a bicyclist with his car. At trial, the prosecution introduced a blood draw indicating Banister had cocaine in his system when he committed the crime, but Banister didn’t consent to the blood draw.

After his conviction, Banister filed a habeas petition in federal court, arguing that his trial counsel was ineffective because he failed to challenge the admissibility or integrity of the blood draw evidence. The district court denied Banister’s petition and did not allow him to appeal its decision to the Fifth Circuit. Under AEDPA, Banister is not allowed to file a “second or successive” habeas petition (28 U.S.C. §2254(b)).

Banister found another way. Under the Federal Rules of Civil Procedure, a litigant can file a motion to “alter or amend” a district court’s judgement “no later than 28 days after the entry of the judgment” (Rule 59(e)). Rule 59(e) motions are generally filed when the petitioner feels the district court made an error in judgment, and this is exactly what Banister argued (within the 28 days).

The district court denied Banister’s Rule 59(e) motion on the merits. On appeal, the Fifth Circuit denied it procedurally. It held that Banister’s Rule 59(e) motion was, in essence, a “second or successive” habeas petition in violation of AEDPA. Banister appealed to the Supreme Court, who granted his case in June. The Justices will decide whether and under what circumstances a timely Rule 59(e) motion should be deemed a “second or successive habeas petition” under Gonzalez v. Crosby (2005). The oral argument in Banister is available via audio and transcript.


Thursday evening, the Justices declined to stay the execution of Lee Hall, a Tennessee inmate who was convicted of capital murder in 1991. There were no noted dissents. In his petitions, Hall had argued that one of the jurors who convicted him was impartial. Tennessee executed Hall later Thursday night.


The Justices met for their weekly private conference Friday afternoon, and the Court released three miscellaneous orders after that conference.

First, the Court granted certiorari for Carney v. James. Delaware—known for its importance in global corporate law—has a state law that limits the number of judges who affiliate themselves with a certain political party to a “bare majority” on its three highest courts. In other words, let’s look at the Delaware Supreme Court, on which there are five Justices. Suppose three of those Justices are, at one point, Republican. The other two Justices must be Democrats under the law, since that would be the “bare[est] majority.” You could not have a 4:1 or 5:0 ratio of political party affiliation under the Delaware law.

James Adams, a retired lawyer, challenged the law under the First Amendment. He argued that the law restricts his ability to run for public office without regard to political affiliation. To make this clear, if the political party with which he is affiliated already constitutes a “bare majority” on a court, the Delaware state law bars him from being eligible to fill a vacancy if the vacant position originally was filled by a minority party member. The Justices will decide whether Adams’ claim is true, and they have also directed the parties to litigate whether Adams even has standing to sue.

Second, the Court denied the Trump administration’s request to resume federal executions. In late November, a federal district court in Washington, D.C. blocked a push by Attorney General William Barr and the U.S. Department of Justice (DOJ) to resume executing death row prisoners who have been convicted of federal capital crimes. On Monday, the DOJ asked the Supreme Court to set aside the district court’s ruling, but the Justices declined to do so on Friday night.

Justice Alito—along with Justices Gorsuch and Kavanaugh—wrote a two-page statement respecting the Court’s decision not to stay the D.C. court’s order. The district court enjoined the DOJ from resuming executions based on the interpretation of a federal statute (18 U.S.C. §3596(a)). §3596(a) states that federal executions must be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” The DOJ interpreted §3596(a) as saying that the method of execution (by lethal injection, electrocution, etc.), must be analogous to the method used in the applicable state. But the district court instead read §3596(a) as applying also to the manner in which the execution is carried out, which it said would include all the practices and procedures that precede the actual moment the death sentence is carried out. Alito doesn’t think this reading is very persuasive, and he’s inclined to believe the DOJ will prevail on the merits of the case. However, it would be “preferable” for the D.C. Circuit Court of Appeals to rule on the merits of the district court’s decision before the executions are carried out. Finally, Alito would have added to the order that the D.C. Circuit should decide the case within the next 60 days. The order simply stated it hoped the appeals court would proceed with “appropriate dispatch.”

Third, Justice Ginsburg entered a 7-day administrative stay on the Second Circuit’s decision in Trump’s latest tax returns case. He already has petitioned two cases to the Supreme Court, which I covered in a previous post for SCOTUS Predictions. These two concern subpoenas—one from the U.S. House of Representatives and one from the Manhattan District Attorney—issued to Mazars, LLP, for Trump’s personal and corporate tax returns. But now a third case has made its way to the Justices, this time concerning a different House committee’s subpoenas to Deutsche Bank and Capital One for Trump’s financial records. After the Second Circuit upheld the subpoenas and ordered the banks to comply, Trump asked the Supreme Court to stay the Second Circuit’s order. Late Friday night, Justice Ginsburg (the circuit Justice for the Second Circuit) issued a short administrative stay until next Friday, December 13, at 5pm. She directed the House Committee to respond to Trump’s request for a longer stay by December 11. Ginsburg’s administrative stay gives the Justices time to orient themselves with Trump’s petition and debate whether to grant a longer stay.

Finally, at the conference itself, the Justices reviewed the petitions on their docket and discussed whether to grant review for any of them. We can expect more news from this conference in the Court’s Orders list on Monday, December 9. 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 and Trump v. MazarsLLP. These two cases concern subpoenas for President Trump’s personal and corporate financial records. In the former, 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 filed his financial documents. In the latter, the U.S. House Committee on Oversight and Reform issued a similar subpoena to Mazars. The questions before the Court are as follows: In the former, does the DA’s subpoena violate Article II and the Supremacy Clause of the Constitution? And in the latter, does the Committee have the “constitutional and statutory authority” to issue its subpoena?
  • 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.
  • 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, we first can expect more orders from this Friday’s private conference. Then, the Court hears oral arguments in two cases: Guerrero-Lasprilla v. Barr, a case that mixes procedure and immigration law; and ThryvInc. v. Click-To-Call Technologies, LP, a patent law case.  On Tuesday, there is a possibility of opinions at 10:00am. The Court also hears arguments in two more cases: Maine Community Health Options v. United States, a case that concerns the Affordable Care Act; and Holguin-Hernandez v. United States, a criminal sentencing case. On Wednesday, two more cases are set for oral argument. First up is Monasky v. Taglieri, an intriguing international law and treaty case; and McKinney v. Arizona, a criminal procedure case. Finally, the Justices will meet for their weekly private conference on Friday.

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