This Week’s Brief: January 20

The Court concluded its January sitting this week. It heard arguments in three cases, ranging from the Armed Career Criminal Act to contract and arbitration law to the Religion Clauses of the First Amendment. The Court issued no decisions, although Justice Breyer did pen a short statement relating to Monday’s orders list. Finally, the Court declined to expedite consideration of the twin “Obamacare” cases out of the Fifth Circuit Court of Appeals. Here’s your brief for the week of January 20.


This Week:
Decisions: 0
Opinions Relating to Orders: 1
Cases Argued: 3
Cert. Grants: 0
CVSGs: 2

O.T. 2019:
Cases Decided: 5
Cases Remaining: 68
Weeks Left in Term: 22


The Court was on recess for Martin Luther King, Jr. Day.



First thing Tuesday morning, the Court released more orders from last week’s private conference. No new cases were granted. The Court issued two CVSGs in Hungary v. Simon and Germany v. Philipp.

Three interesting nuggets: First, the Court declined to expedite consideration of California v. Texas and United States House of Representatives v. Texas. These consolidated cases concern the most recent challenge to the Affordable Care Act’s individual mandate. The Fifth Circuit Court of Appeals recently struck down the individual mandate on the ground that tax laws have sufficiently changed since the Supreme Court’s decision to uphold the mandate in NFIB v. Sebelius (2012). California and the U.S. House of Representatives had asked the Court to decide quickly on whether it will review the Fifth Circuit’s decision, but the Court turned them down. While the Court may eventually decide to hear the cases on a normal timeline, that would mean the cases would not be heard until next term.

Second, the Court denied review in Bell v. Pennsylvania, a mainstay on my list of high-profile petitions. The case had asked whether a prosecutor can, consistent with the Fourth Amendment, use the defendant’s refusal to consent to a blood alcohol test as an admission of guilt at trial. There were no recorded dissents.

Third, one denial elicited a statement from Justice Breyer. The Court denied review in McKeever v. Barr, a case sporting a circuit split over the authority of U.S. district courts to release grand jury information in extraordinary circumstances. Specifically, the court below (the D.C. Circuit) held in this case that a district court cannot release grand jury information except in the circumstances specifically enumerated in Federal Rule of Criminal Procedure 6(e). However, other appeals courts have ruled that a district court can release grand jury information in certain “extraordinary” circumstances that fall outside of 6(e). In his statement, Breyer thinks this split brings up an “important” question. But, for the time being, he said he would have the committee responsible for drawing up the Federal Rules of Criminal Procedure consider this question before the Court takes it up. So, he does not dissent from the denial of cert.

Oral Arguments:

Next, the Court heard arguments in two cases. In Shular v. United States, the Court is grappling with another federal statute that routinely makes its way to the high court: the Armed Career Criminal Act of 1984 (ACCA). The ACCA provides for enhanced penalties for criminal defendants who have three or more qualifying offenses, such as “violent felonies” or “serious drug offenses.” The term “violent felony” includes a list of the offenses like burglary, arson, extortion, and use of explosives (18 U.S.C. § 924(e)(2)(B)(ii)). In Taylor v. United States (1990), the Court espoused a “categorical approach” to determining whether a defendant’s crime qualifies as one of the offenses the ACCA lists as a “violent felony,” and thus whether the defendant could be labeled an “armed career criminal.” That approach says to look not to the individual facts of a case, but to only the fact of conviction and the statutory definition of the prior offense.”

In Shular, the defendant was labeled an armed career criminal on the ground that his qualifying offense constituted a “serious drug offense” under the ACCA (18 U.S.C. § 924(e)(2)(A)(ii)). The question before the Court is whether Taylor‘s categorical approach to interpeting “violent felonies” should also be applied when interpreting “serious drug offenses.” The argument in Shular is available via audio and transcript.

The other case argued, GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USALLC, concerns (of all things) contracts and arbitration procedure. The question presented is whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) permits a non-signatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel. The argument in GE Energy Power Conversion France SAS is available via audio and transcript.


The Court on Wednesday heard this week’s final case, Espinoza v. Montana Dep’t. of RevenueEspinoza concerns a Montana scholarship program for elementary, middle, and high school students. Under the program, the State of Montana gives tax credits to private citizens and businesses who donate to private, nonprofit scholarship organizations. Those nonprofits, in turn, use the donations as scholarship funds and award those scholarships to families whose children wish to go to private schools. Scholarship-winning families may use their award at any “qualified education provider,” which Montana broadly defines to include virtually all private schools in the state—secular or religious.

Shortly after the program’s inception, the Montana Department of Revenue (“the Department”) enacted an administrative rule that excluded religious schools from the program. In the Department’s mind, the program implicated concerns regarding Article X, Section 6(1) of the Montana State Constitution, which piggybacks off the Establishment Clause of the First Amendment. §6(1) provides that Montana “shall not make any direct or indirect appropriation or payments from any public fund or monies . . . for any sectarian purpose.” It adds that state funds cannot “aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

Shortly thereafter, mothers of students who have won or are applying for scholarships to use at a private, Christian school sued to enjoin enforcement of the Department’s Rule. They argued, first, that the Department did not have the authority to issue the Rule; second, that Montana was infringing their right to freely exercise their religious beliefs; and third, that Montana was favoring secular schools over religious ones, thereby violating the Establishment Clause of the First Amendment.

The state trial court largely agreed, issuing a preliminary injunction against the Rule. But the Montana Supreme Court reversed. It held, first, that Article X, §6(1) of the Montana State Constitution prohibited religious schools from participating in the scholarship program; and second, that excluding religious schools would make the program inoperative, and thus the entire program must be invalidated. The families then appealed to the U.S. Supreme Court, which granted certiorari. The question the Justices must answer is whether invalidating the entire program simply because it gives students the choice of attending religious schools violates the Establishment, Free Exercise, or Equal Protection Clauses. The argument in Espinoza is available via audio and transcript.


The Court held no proceedings on Thursday.


Friday afternoon, the Court issued a miscellaneous order for Henry Schein, Inc. v. Archer and White Sales, Inc. The case, as the parties pointed out, is “no stranger” to the Justices. Last term, the Court issued a decision involving just one of the issues in the arbitration dispute between the two companies. One the main issue, the Justices decided to remand the case so that the appeals court could consider it first. The appeals court’s subsequent decision refused to compel the parties to arbitrate their dispute and ordered a trial. Henry Schein, Inc., dissatisfied with that ruling, petitioned the Supreme Court to stay the order. The Court granted that petition on Friday, leaving the stay in place until the parties’ proceedings before the Supreme Court conclude. Only Justice Ginsburg would have voted to deny the stay.

In addition, the Court met for its weekly private conference. There 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 next orders list next Monday. 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.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law 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.
  • California v. Texas. This case concerns the oft-challenged “individual mandate” in the 2010 Patient Protection and Affordable Care Act (ACA). In December 2019, the Fifth Circuit Court of Appeals held that the Tax Cuts and Jobs Act of 2017 (TCJA) overruled the Supreme Court’s decision in NFIB v. Sebelius (2012) upholding the constitutionality of the individual mandate. The Fifth Circuit then ordered the district court to consider whether the ACA must be struck down. The questions before the Supreme Court are (1) whether Petitioners have standing; if so, (2) whether the TCJA overruled NFIB; and if so (3) whether the individual mandate is severable from the ACA.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The questions presented is whether it violates the First Amendment to designate a labor union to represent and speak for public-sector employees who object to its advocacy on their behalf.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

On Monday, the Court will release more orders from Friday’s conference. There are no oral arguments scheduled, as the Court is now between its January and February sittings. The February sitting begins on Monday, February 24. The next weekly, private conference is scheduled for Friday, February 21.

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