SCOTUS Watch – Monday, June 1st

It’s June! Time for legal geeks to look to the Supreme Court for rulings on the cases argued this session before the court adjourns on June 30th for the summer. The calendar calls for orders and decisions to be released every Monday at 10:00am but history has shown that additional “decision days” are often added as the month unfolds.

As always, the Moose News Network will cover the SCOTUS events with the help of SCOTUSblog and Twitter.

All eyes turn to the court

UPDATE

Four cases decided, two that we were tracking:
– EEOC v Abercrombie & Fitch: ruled 8 to 1 that the job applicant was discriminated against for her religion because the employer would not make an accommodation for her religious headgear in their “no head gear” policy. Win for EEOC.

– Elonis v US: ruled 7-2 that “reasonable person would think it was a threat” was not enough, that the court has to show that the defendant meant it as a threat. Remanded.

The Supreme Court will be in session this morning for orders and opinions starting at 10:00am Eastern. SCOTUSblog will liveblog at this link starting at 9:30am Eastern.

Included in the list of cases heard in the current term but not yet decided are these:
– DECIDED: The Facebook threat case, Elonis v. U.S.
– The marriage equality cases, listed under Obergefell v. Hodges
– The Affordable Care Act state exchange case, King v Burwell
– The “can citizens redistrict?” case, Arizona State Legislature v. Arizona Independent Redistricting Commission
– A death penalty case related to the drugs used, Glossip v Gross
– Some other First Amendment cases:
    – The Confederate license plate case, Walker v. Texas Division, Sons of Confederate Veterans
    – A signage case Reed v. Town of Gilbert, Arizona
    – DECIDED: A religious liberty case Equal Employment Opportunity Commission (EEOC) vs. Abercrombie & Fitch
– An assault on the Fair Housing Act, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
– Three suits against the EPA over its regulation of utilities and “failure” to consider costs, listed as Michigan vs. the Environmental Protection Agency (EPA)
– A 4th Amendment case involving hotel guest registries, The City of Los Angeles vs. Patel

A full list of pending cases (with links) is below the fold.

Analysis from Al Jazeera: Supreme Court to decide on 13 cases over next few weeks

June is the final month of the Supreme Court’s annual term before the summer recess begins. Over the next few weeks, the Court will make decisions on 13 major cases. Among the issues up for debate are same-sex marriage, the Affordable Care Act, and religious freedom.

From SCOTUSblog: October 2014 Term cases pending (oldest cases first)

Zivotofsky v. Kerry, No. 13-628 [Arg: 11.3.2014 Trans./Aud.]

Issue(s): Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute “impermissibly infringes on the President’s exercise of the recognition power reposing exclusively in him.”

Elonis v. U.S., No. 13-983 [Arg: 12.1.2014 Trans./Aud.]
Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.

Reed v. Town of Gilbert, Arizona, No. 13-502 [Arg: 1.12.2015 Trans./Aud.]

Issue(s): Whether the Town of Gilbert’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.

Mellouli v. Lynch (originally, Holder), No. 13-1034 [Arg: 1.14.2015 Trans./Aud.]
Issue(s): Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, No. 13-1371 [Arg: 1.21.2015 Trans./Aud.]

Issue(s): Whether disparate-impact claims are cognizable under the Fair Housing Act.

Kerry v. Din, No. 13-1402 [Arg: 2.23.2015 Trans./Aud.]

Issue(s): (1) Whether a consular officer’s refusal of a visa to a U.S. citizen’s alien spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether respondent is entitled to challenge in court the refusal of a visa to her husband and to require the government, in order to sustain the refusal, to identify a specific statutory provision rendering him inadmissible and to allege what it believes he did that would render him ineligible for a visa.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, No. 14-86 [Arg: 2.25.2015 Trans./Aud.]
Issue(s): Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.

Baker Botts, L.L.P. v. ASARCO, L.L.C., No. 14-103 [Arg: 2.25.2015 Trans./Aud.]

Issue(s): Whether Section 330(a) of the Bankruptcy Code grants bankruptcy judges discretion to award compensation for the defense of a fee application.

Ohio v. Clark, No. 13-1352 [Arg: 3.2.2015 Trans./Aud.]

Issue(s): (1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314 [Arg: 3.2.2015 Trans./Aud.]

Issue(s): (1) Whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

City of Los Angeles v. Patel, No. 13-1175 [Arg: 3.3.2015 Trans./Aud.]

Issue(s): (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Davis v. Ayala, No. 13-1428 [Arg: 3.3.2015 Trans./Aud.]

Issue(s): Whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.

King v. Burwell, No. 14-114 [Arg: 3.4.2015 Trans./Aud.]

Issue(s): Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

Walker v. Texas Division, Sons of Confederate Veterans, No. 14-144 [Arg: 3.23.2015 Trans./Aud.]

Issue(s): (1) Whether the messages and images that appear on state-issued specialty license plates qualify as government speech immune from any requirement of viewpoint neutrality; and (2) whether Texas engaged in “viewpoint discrimination” by rejecting the license-plate design proposed by the Sons of Confederate Veterans, when Texas has not issued any license plate that portrays the confederacy or the confederate battle flag in a negative or critical light.

Bank of America, N.A. v. Toledo-Cardona, No. 14-163 [Arg: 3.24.2015]

Issue(s): Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral.

Bank of America, N.A. v. Caulkett, No. 13-1421 [Arg: 3.24.2015 Trans./Aud.]
Issue(s): Whether, under Section 506(d) of the Bankruptcy Code, which provides that “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void,” a Chapter 7 debtor may “strip off” a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral.

Utility Air Regulatory Group v. Environmental Protection Agency, No. 14-47 [Arg: 3.25.2015 Trans.]

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Michigan v. Environmental Protection Agency, No. 14-46 [Arg: 3.25.2015 Trans./Aud.]

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

National Mining Association v. Environmental Protection Agency, No. 14-49 [Arg: 3.25.2015 Trans.]

Issue(s): Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.

Brumfield v. Cain, No. 13-1433 [Arg: 3.30.2015 Trans./Aud.]

Issue(s): (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Kimble v. Marvel Enterprises, No. 13-720 [Arg: 3.31.2015 Trans./Aud.]

Issue(s): Whether this Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” CVSG: 10/30/2014.

Johnson v. U.S., No. 13-7120 [Arg: 4.20.2015 Trans./Aud.]

Issue(s): (1) Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. (2) Whether the residual clause in the Armed Career Criminal Act is unconstitutionally vague.

McFadden v. U.S., No. 14-378 [Arg: 4.21.2015 Trans./Aud.]

Issue(s): Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar” to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

Horne v. Department of Agriculture, No. 14-275 [Arg: 4.22.2015 Trans./Aud.]

Issue(s): (1) Whether the government’s “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm’n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

Kingsley v. Hendrickson, No. 14-6368 [Arg: 4.27.2015 Trans.]

Issue(s): Whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

DeBoer v. Snyder, No. 14-571 [Arg: 4.28.2015]

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Tanco v. Haslam, No. 14-562 [Arg: 4.28.2015]

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Obergefell v. Hodges, No. 14-556 [Arg: 4.28.2015 Trans./Aud.]

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Bourke v. Beshear, No. 14-574 [Arg: 4.28.2015]

Issue(s): 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Glossip v. Gross, No. 14-7955 [Arg: 4.29.2015 Trans.]

Issue(s): (1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious; (2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

Mata v. Lynch, No. 14-185 [Arg: 4.29.2015 Trans.]

Issue(s): Whether the Fifth Circuit erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2).