As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions. This term is already shaping up as a weird term. By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred. While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits. It is not unusual for these cases to be resolved by unanimous opinions. Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.
At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).
The January session should be relatively quiet. There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer.
February is the only other session for which the arguments have been scheduled. And it is not going to be a quiet session. The session starts with Gonzales vs. Google. This case involves the immunity created by Section 230 of the Communications Decency Act which has become rather controversial in recent years. (Basically, service providers are immune from liability for content created by others.) This case appears to involve the algorithms that Youtube (owned by Google) uses to determine what content is recommended to viewers which allegedly “promoted” pro-ISIS video to certain users who had displayed a preference for those types of videos. The basic issue is whether the immunity under Section 230 bars claims against Google for inadvertently promoting terrorism by these “neutral” search tools.
There are also two cases involving challenges to President Biden’s student debt forgiveness program (both focusing on whether certain individuals and certain states have an interest sufficient to allow them to challenge the program). There is a third case involving standing to challenge government policy (Arizona v. Mayorkis) with that third case involving standing to intervene to defend the Covid-era Title 42 “Stay in Mexico” policy for asylum seekers.
While we do not yet know the exact schedule for the March session, there are eleven cases available for the March and April sessions. Of these eleven, most should not produce a political storm. There are two that might get some notice. The first is a water allocation dispute. While these cases are normally not that significant, this year’s case involves the crucial Colorado River basin which provides water for much of the southwestern U.S. (including California) and one of the parties is a tribal government which adds a wrinkle to the usual state vs. state nature of these disputes. The second involves the federal law against encouraging illegal immigration and the First Amendment right to free speech. This issue arose in a previous case, but, at that time, the U.S. Supreme Court resolved the case on procedural grounds and did not reach the merits. The immigration aspects of the case will get some focus, but the free speech aspects could have broader implications with the court having to weigh the traditional legal rules in which speech can sometimes count as conduct (e.g., a person can be charged with a crime for helping to plan a robbery even if they did not take part in the robbery itself) against a desire to protect speech not connected to a specific criminal act (e.g., a person arguing against a proposed tax increase saying that people generally should refuse to pay that tax even if it passes).
One last thing to note. Eleven cases available for March and April is a rather low number given that there are twelve argument days over those two months (which would usually mean something between twenty and twenty-four cases). One of the things that makes January important in the Supreme Court calendar is that it is the last time that the court can add non-emergency cases to the argument schedule for this term. The Supreme Court usually has an extended break between the January session and the February session (four weeks instead of the normal two weeks). As a result, by the time that the Supreme Court meets in February to review potential new cases, it is realistically too late for the parties to brief any cases accepted in February for an April argument. As a result, barring something that justifies an “expedited” schedule, cases accepted in February (and afterwards) will actually be heard in the new term starting in October. Thus, if a case will be heard in April (and decided by June), review would have to be granted within the next two weeks. As always, there are a lot of potentially significant cases with applications which are due to be considered in January, but which ones will get accepted by the Supreme Court remains to be seen.
Even if any new grants this month only involve routine matters, April, May, and June should see lots of decision which will be controversial. Given this Court’s current tendencies, the hope is that the damage to democracy and this country will be minimal. But we will have to wait and see.
