As we saw in Part One, COVID-19 has caused a rather unique set-up for the first two argument sessions of the upcoming term.  October are the cases that would have been argued last term but for COVID-19 requiring the postponement of arguments.  As such, as the more politically significant cases were heard in May, October features very few “political” cases.   On the other hand, highlighted by the on-going attempt of the Republicans to use the courts to undo the Affordable Care Act, November has several very significant cases.

There are two big cases on December’s docket.  First, there is the on-going disputes related to President Trump’s legal troubles.  In particular, Trump’s taxpayer-funded law firm (the Department of Justice) is trying to block the House Judiciary Committee from obtaining grand jury transcripts from the Mueller investigation that might be demonstrate that Trump committed impeachable offenses.  The technical issue is whether the House Judiciary Committee when doing a preliminary investigation into impeachment fits within the limited group authorized by the Federal Rules of Criminal Procedure to access grand jury testimony.

Second, there is a case-involving the Federal Housing Finance Agency (one of the agencies created after the Bush financial market crash of 2008) and whether it is legally-structured.  We saw a similar case this past term involving the Consumer Finance Protection Bureau.  So, even if the Republicans do not manage to get another conservative judicial activist onto the Court before this argument, the odds of a ruling upholding the validity of the restrictions on removal are slim and none.

In addition, in a case involving Facebook, there is another First Amendment challenge to the statutes governing and restricting robocalls.  There are also three cases involving the scope of the Foreign Sovereign Immunities Act and Alien Tort Statute.  These two statutes permit cases to be brought in federal court for some (usually personal injury) cases that arise out of actions committed outside the United States.

At this point, we do not know what the remainder of the term will include.  As is usual, there are a handful of cases that have already been accepted for possible argument in January.  The most significant of the three cases involve a First Amendment case arising from Georgia Gwinnett College.  The College had regulations creating limited “Free Speech” zones where students could hand out pamphlets and the like.  After a student brought this case challenging those restriction, the College changed the policy.   Normally, with limited exceptions, such a change in policy ends the case as we saw last year with the New York City gun ordinance.  One of the exceptions involves a claim for damages.  Here, the student did not plead actual damages, but did seek “nominal” damages (basically a small payment in recognition that the defendant was in the wrong).  The issue is whether this type of claim is enough to allow a trial on the merits of the policy.

It is harder to predict the rest of the docket, especially with a vacancy on the court.  Given the number of disputes that we have already seen about this election, the possibility of another post-election dispute being heard by the Supreme Court is something that is clearly in the background.  Of course, if a replacement is rammed through while the election is unsettled that will put even more pressure on the Supreme Court.

Among the topics that seem likely to come up in — or are in — pending petitions for review are further attempts to get the Supreme Court to define the contours of the Second Amendment., to permit states to effectively ban abortions, inmate rights to sex reassignment surgery, and the legality of several attempts to suppress the vote.   For the next several months, the “rule of four” should make things interesting.  The “rule of four” is that it only takes four justices to hear a case.  The big question is whether the four most conservative justices will try to get several “wish” topics on the docket hoping that Trump will get to fill the Ginsburg vacancy giving them the fifth vote when the cases come up for argument in the Spring or whether they wait to see what happens with that vacancy.  For now, with only three “liberal” justices, it will be harder to get cases that we would like to see — cases in which the facts will tend to push the swing justices toward a  more liberal result.

The reality is that, how things play out over the next eight weeks or so with the Ginsburg vacancy and the election will have a major impact on the rest of the term.  If Trump gets his way and fills the Ginsburg vacancy, we could see a very strong lurch to the right.  On the other hand, if Trump fails, and we have Joe Biden in White House and a Democratic Senate, we will probably not have a new justice until the March or April argument session and are likely to see some compromise opinions for this term with the big issues punted until next year.