Amy L Howe 6/8/2021
Over the next three weeks or so, the Supreme Court is expected to issue 22 opinions in cases that were argued during the 2020-2021 term, on topics ranging from the constitutionality of the Affordable Care Act to whether schools can regulate off-campus speech by students.
There is no way to know when a particular decision will be released, nor is there any way to know which justice is the author of a particular decision until it is released on the court’s website. Having said that, as the end of the court’s term draws closer, you can sometimes find some clues. The justices try very hard to divide the workload of opinion writing evenly, not only over the course of the term but also from month to month. This means, for example, that if only one case remains undecided from a particular month’s argument calendar, and there is only one justice who has not yet written an opinion that month, that justice is probably writing the remaining opinion.
We are still waiting on three opinions from the court’s November calendar. In Borden v. United States (argued Nov. 3, 2020), the justices once again are interpreting the Armed Career Criminal Act, which imposes a mandatory minimum sentence of 15 years to life for anyone convicted of having a gun after being convicted of three violent felonies. The ACCA in turn defines a “violent felony” as any felony that has the use of physical force. In 2017, Charles Borden pleaded guilty to possessing a gun illegally. He argued that one of his three prior convictions for assault did not count as a violent felony for purposes of the ACCA because he could be convicted based merely on being reckless. The lower courts rejected that argument, and Borden came to the Supreme Court last year, where the justices heard oral argument in November on whether a felony offense involving recklessness satisfies the ACCA’s “use of physical force” element.
California v. Texas and Texas v. California (argued Nov. 10, 2020) are the latest challenges to the Affordable Care Act – and the second to the ACA’s individual mandate, the provision of the law that requires virtually all Americans to buy health insurance. A divided Supreme Court rejected a challenge to the constitutionality of the mandate in 2012, with Chief Justice John Roberts joining the court’s four more liberal justices in agreeing that the mandate imposes a tax on the failure to buy health insurance. A group of 18 states with Republican attorneys general and governors (along with two individual plaintiffs) returned to court, where they argue that the mandate is now unconstitutional because Congress reduced the penalty for failing to obtain health insurance from $695 to zero. There are (potentially) three issues before the justices. A threshold question that they must resolve is whether the challengers have a legal right to sue, known as standing. If the justices conclude that at least one of the challengers has standing, then they will move on to decide whether the mandate is constitutional. And if at least five justices agree with the challengers that the mandate is unconstitutional, then the court must determine whether the rest of the ACA can survive, or whether it too must be struck down.
In Cargill v. Doe and Nestle USA v. Doe (argued Dec. 1, 2020), the justices are considering whether a lawsuit brought by former child slaves in Ivory Coast under the Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, can continue. The plaintiffs contend that the defendants in the case, Nestle and Cargill, aided and abetted human rights abuses because they bought cocoa beans from cocoa plantations in Ivory Coast even though the companies knew the plantations used child slavery. There are two main questions in the case: whether U.S. corporations can be defendants in lawsuits brought under the ATS; and whether the ATS applies when the conduct at the case happened outside the United States.
In National Collegiate Athletic Association v. Alston and American Athletic Conference v. Alston (argued Mar. 31, 2021), the justices are reviewing an antitrust challenge by college basketball and football players to the NCAA’s rules on compensation for athletes. The 9th Circuit ruled that the NCAA could restrict benefits that are unrelated to education, such as cash salaries, but it barred the NCAA from limiting benefits, such as free laptops or paid post-graduate internships, related to education. The justices agreed in December to weigh in.
The question before the court in HollyFrontier Cheyenne Refining v. Renewable Fuels Association (argued Apr. 27, 2021) is whether small oil refineries can take advantage of a compliance exemption in the Renewable Fuel Standard program, which is part of the Clean Air Act, if they have not received that exemption every year since 2011.
More:
http://amylhowe.com/2021/06/08/reading-the-tea-leaves-remaining-cases-as-of-june-8/
