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October 11, 2020 SCOTUS REVIEW


Fall 2020 Edition

Yuwen Wang, 2020 Fall Intern

Cases on the Docket for October and November 2020

Military Sexual Assault: U.S. v. Briggs & U.S. v. Collins

Oral argument date: October 13, 2020

Issue Presented: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.

Facts and Background:
 A military judge found Michael Briggs guilty of rape in 2014 for conduct that occurred in 2005 without advising Briggs that the statue of limitations might provide a basis for dismissal. The U.S. Court of Appeals for the Armed Forces ruled for Briggs, finding that Briggs would have sought dismissal if the military judge had informed Briggs of a possible statute of limitations defense. The facts of the case are discussed in more depth in the
 Summer 2020 SCOTUS review

  In U.S. v. Briggs, the SCOTUS has the power to determine whether rape that occurs in the U.S. military has a five-year or unlimited statute of limitations.

The key issue in this litigation is whether military rape cases are subject to a statute of limitations. Section 843(a) of the Uniform Code of Military Justice (UCMJ) states that “any [military] offense punishable by death may be tried and punished at any time without limitation.” The government has applied this section to military rape, since Section 920(a) of the UCMJ renders rape an offense punishable by death. On the other hand, the defendants in the case assert that military rape is not punishable by death, because the Supreme Court’s Eighth Amendment precedents forbid capital punishment for non-fatality rape. If the Court’s precedents apply to military rape, then military rape would fall under section 843(b)—stating that all military offenses not punishable by death have a five-year statute of limitations—rather than section 843(a). 

Rights of Immigrants: Pereida v. Barr

Oral argument date: October 14, 2020

Issue Presented: Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by 

Facts and Background:
 Clemente Avelino Pereida, a citizen and native of Mexico, was convicted of attempted criminal impersonation in Nebraska for attempting to work with a fraudulent social security card. The Department of Homeland Security charged Pereida with removability, from which Pereida sought relief. An immigration judge found that Pereida's conviction constituted a crime involving moral turpitude, barring relief from removal. The facts of the case are discussed in more depth in the Summer 2020 SCOTUS review

 The Court’s ruling in Pereida will affect the ability of noncitizens who have committed certain offenses to apply for relief from deportations. 

Eighth Amendment and Juvenile Rights: Jones v. Mississippi

Oral argument date: November 3, 2020

Issue Presented: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. 

Facts and Background:
 Brett Jones was convicted of murder and sentenced to life without parole imprisonment in 2005 for stabbing his grandfather to death at age 15. Subsequently, the Supreme Court prohibited life without parole sentences for juveniles on the grounds of the Eighth Amendment in Miller v. Alabama (2012). Later in 2016, the SCOTUS made the Miller decision retroactive and qualified precedent to apply to “all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility” in Montgomery v. Louisiana

 The Court’s ruling in Jones will determine whether trial courts have the burden to prove this “permanent incorrigibility” before sentencing juveniles to life without parole.

Religious Freedom and LGBTQ Rights: Fulton v. City of Philadelphia, Pennsylvania

Oral argument date: November 4, 2020

Issue Presented:

  1. Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held; 
  2. Whether Employment Division v. Smith should be revisited; and
  3. Whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs. 

Facts and Background: Several foster parents and Catholic Social Services (CSS) challenged the City of Philadelphia’s policy of halting foster children referrals to CSS for placement due to CSS’s refusal to certify same-sex couples as foster parents.

Significance:  In Fulton v. City of Philadelphia, Pennsylvania, the SCOTUS has the power to set a new precedent that overturns Employment Division v. Smith and provides religious exemptions to general, anti-discrimination laws.

A blockbuster issue could be decided by this case—how to reconcile generally applicable laws with the Free Exercise Clause. This conflict between non-discriminatory provisions and the Free Exercise clause was previously visited but not resolved in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where SCOTUS ruled that a Colorado baker cannot be forced to make a cake for a same-sex couple. The decision in Masterpiece Cakeshop was made on the narrowest grounds possible—that the Colorado Civil Rights Commission has shown anti-religious bias in its consideration of the case—providing no precedent or guidance for future cases like Fulton.

In its decision on Fulton, the court could reconsider its ruling in Employment Division v. Smith (1990) that “there is no constitutional right to an exemption from a generally applicable law,” a precedent religious freedom advocates have long protested. If SCOTUS overrules its decision in Employment Division v. Smith and decides in favor of CSS, Fulton could serve as a new precedent prioritizing religious liberty over non-discrimination laws. The outcome could have dire implications for the LGBTQ community’s access to public services beyond the foster system. On the other hand, it is possible for the court to decide Fulton on narrow grounds like that of Masterpiece Cakeshop, minimizing its impact and leaving Employment Division v. Smith undisturbed.

Healthcare: Texas v. California

Oral argument date: November 10, 2020

Issue Presented:

  1. Whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act;
  2. whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere. 

Facts and Background:  The Affordable Care Act (ACA)’s “individual mandate” that created an income tax penalty for people without health insurance was previously examined by SCOTUS in National Federation of Independent Business v. Sebelius (2012); in NFIB v. Sebelius, the Court upheld the individual mandate in a 5-4 decision, citing that it was a constitutional exercise of Congress’s taxing power. Since then, Congress has reduced the required amount of health coverage to US$0 in the Tax Cuts and Jobs Act of 2017—stripping the individual mandate of its revenue and placing it outside the scope of Congress’s power to tax.

Significance:   In Texas v. California, the SCOTUS has the power to strike down the entire ACA or the ACA’s individual mandate.

In Texas v. California, the Court will review whether the individual mandate is now unconstitutional due to its lack of revenue for the federal government, and whether the mandate’s constitutionality can be severed from the rest of the ACA. The defendant states are planning to defend the constitutionality of the mandate by claiming it to be a precatory law, which is not subject to constitutional challenges. However, the individual mandate is ineffectual regardless of the Court’s decision on the constitutionality question. The severability question is where the impact lies—the ACA is operating fine without the individual mandate, but striking down the entire ACA is possible if the mandate is not found to be severable. Texas v. California has picked up more media attention since Amy Coney Barrett, who openly criticized the Supreme Court’s decision to uphold the ACA in 2017, has been nominated to replace the late Justice Ruth Bader Ginsburg.


The Supreme Court of the United States, Washington, D.C.

The Supreme Court of the United States, Washington, D.C.

Cases Not Yet Set For Argument

Legislative Apportionment: Trump v. New York No. 20-366

Issues Presented:

  1. Whether a group of states and local governments have standing under Article III of the Constitution to challenge a July 21, 2020, memorandum by President Donald Trump instructing the secretary of commerce to include in his report on the 2020 census information enabling the president to exclude noncitizens from the base population number for purposes of apportioning seats in the House of Representatives; and 
  2. Whether the memorandum is a permissible exercise of the president’s discretion under the provisions of law governing congressional apportionment.

Facts and background: The secretary of commerce is responsible for giving the president a state-by-state breakdown of the total population, to be used to allocate seats in the House of Representatives, under federal census laws. The July 2020 memorandum, in which President Donald Trump commands the secretary to include information in the breakdown about noncitizens, is being sued by a group of state and local governments. This issue, if not promptly resolved, could impede the Secretary of Commerce’s capacity to deliver the report by December 31, 2020.

Reproductive Health: Food and Drug Administration v. American College of Obstetricians and Gynecologists No. 20A34

Issue Presented: Whether the Supreme Court should stay, pending appeal, a nationwide injunction by a federal district court in Maryland that prevents the FDA from enforcing requirements that certain medical abortion drugs be distributed only under the supervision of a certified healthcare provider in a hospital, clinic, or medical office after a patient signs a form acknowledging that she has been counseled about the drug’s risks, on the grounds that the requirements pose an undue burden on abortion access under Planned Parenthood of Southeastern Pennsylvania v. Casey during the COVID-19 pandemic.

Facts and background: Mifepristone—a treatment prescribed for management of early pregnancy loss as well as induced abortion—is the only drug out of the 20,000 regulated by the FDA that must be received in person at a hospital, clinic, or medical office. The COVID-19 pandemic has exacerbated the restriction this FDA policy places on health care access, disproportionately impacting immunocompromised patients and patients from underserved communities who may lack the resources necessary to travel.  

Equal Protection for U.S. Territories: U.S. v. Vaello-Madero No. 20-303

Issue Presented: Whether Congress violated the equal protection component of the Due Process Clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind, and disabled individuals — in the 50 states and the District of Columbia, and in the Northern Mariana Islands pursuant to a negotiated covenant, but not extending it to Puerto Rico.

Facts and background: The federal government sued José Luis Vaello-Madero in 2016 to recover $28,000 in Supplemental Security Income (SSI) benefits it had inadvertently paid him after he moved from New York to Puerto Rico. Vaello-Madero argued that SSI discrimination against territorial residents violated the Constitution’s Equal Protection Clause, an opinion affirmed by Chief Judge Gustavo Gelpí of the District of Puerto Rico.

Free Speech: Mahanoy Area School District v. B.L. No. 20-255

Issue Presented: Whether Tinker v. Des Moines Independent Community School District, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

Facts and background: B.L., a high school student, took a photo of herself and her friend with their middle fingers raised and posted it to her Snapchat story visible to about 250 people with a profane caption directed at her school, the cheerleading squad, and the softball team. The cheerleading coaches decided B.L.’s snap violated team and school rules and removed her from the team.

Police Accountability: Deasey v. Slater No. 19-1085

Issue Presented: Whether, for purposes of qualified immunity, a merely “sufficiently analogous” case is enough to show that the law is “clearly established,” or whether something more is required, i.e., a “closely analogous” case finding the alleged violation unlawful. If the Supreme Court agrees to hear Deasey v. Slater, the Court will determine how closely case precedents must mimic the alleged violation in jurisprudence concerning qualified immunity, which will impact the degree of police accountability in cases of alleged misconduct.

Facts and background: Sheriff's deputies allegedly killed Joseph Slater, who suffered from mental illness and drug addiction, via asphyxiation as they were attempting to arrest Slater. A unanimous panel at the trial court ruled the deputies’ actions to be unconstitutional based on case precedents, thereby stripping them of qualified immunity. Though a Ninth Circuit panel voted to not review the lower court’s ruling, Ninth Circuit Judge Daniel Collins dissented, claiming that the circuit precedent used in the majority opinion is not similar enough to the case at hand.

Impact from the 2019-2020 Term

For more cases from the 2019-2020 SCOTUS arguments, check out our previous SCOTUS Term in Review pages (Fall 2019, Winter 2019, Summer 2020).

Native American Affairs: McGirt v. Oklahoma

Oral argument & decision dates: Argued on May 11, 2020; decided on July 9, 2020.

Issue Presented: 
Whether a state can prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries.

Facts and Background: 
Jimcy McGirt, a member of the Creek Nation who was convicted of sex crimes against a child by the state of Oklahoma, argued that Oklahoma could not exercise jurisdiction over him because under the Indian Major Crimes Act. The facts of the case are discussed in more depth in the Summer 2020 SCOTUS Term in Review.

In McGirt v. Oklahoma, the U.S. Supreme Court held that for the purposes of the Major Crimes Act, land throughout much of eastern Oklahoma, reserved for the Creek Nation since the 19th century, remains a Native American territory.

The decision in McGirt produced both beneficial and negative consequences for Native Americans. In Justice Gorsuch’s majority opinion, he reaffirmed the promises made by the U.S. government to Native tribes, concluding “We hold the government to its word.” This opinion calls on the federal government to keep promises made to Native Americans even if the price of keeping them is great—a significant victory for Native American rights.

In spite of this symbolic win for Native American rights, the McGirt decision could make it more difficult for Native American victims of crime to achieve justice. The decision placed Native Americans committing crimes on the Creek Nation under federal and tribal jurisdiction rather than that of Oklahoma. According to an analysis by the Washington Post, the federal government has a history of declining to prosecute crimes against Native Americans committed on tribal lands. A 2014 study estimated that the Department of Justice declines to prosecute at an overall rate of 7%; this declination rate rises to 39% in Indian country. The federal government’s poor track record in prosecuting violent crimes against Native Americans suggests that McGirt will further encumber the pursuit of justice for Native American victims. 

Religious Freedom and Reproductive Health: Little Sisters of the Poor v. Pennsylvania

Oral argument & decision dates: Heard on May 6, 2020; decided on July 8, 2020.

Issue Presented:
 Whether the federal government can lawfully exempt religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.

Facts and background:
In 2017, the Department of Health and Human Services expanded the entities eligible to claim an exemption to the requirement that group health insurance plans cover contraceptive services under the Women’s Health Amendment to the Affordable Care Act (ACA). The facts of the case are discussed in more depth in the Summer 2020 SCOTUS Term in Review.

In Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court held that the Departments of Health and Human Services, Labor, and the Treasury had the legal authority to create religious and moral exemptions to the contraceptive mandate of the Affordable Care Act insofar that they follow proper procedures under the Administrative Procedure Act.

In the final dissent of Justice Ruth Bader Ginsburg’s career, joined by Justice Sonia Sotomayor, she warned that “between 70,500 and 126,400 women would immediately lose access to no-cost contraceptive services” as a result of the exemptions the current administration seeks to implement. Though the decision in Little Sisters of the Poor endorses the federal government’s ability to create exemptions to the ACA, the Supreme Court referred the relevant cases back to the lower courts for them to decide whether the expansion of these exemptions was “arbitrary and capricious” or reasonable. Amy Howe, writing for the SCOTUSBlog, conjectures that litigation surrounding this dispute is virtually guaranteed to continue well after the 2020 election. 

Religious Freedom: Our Lady of Guadalupe School v. Morrissey-Berru & St. James School v. Biel

Oral argument & decision dates: Heard on May 11, 2020; decided on July 8, 2020.

Issue Presented:
 Whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions but was not otherwise a “minister.”

Facts and background: 
Agnes Morrissey-Berru filed a complaint with the Equal Employment Opportunity Commission (EEOC) to claim that she had been unjustly terminated on the basis of her age, and Kristien Biel filed a similar complaint with the EEOC to claim that she had been unjustly terminated due to her breast cancer treatments.

In Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the U.S. Supreme Court held that the "ministerial exception" derived from the First Amendment precludes the adjudication of employment-discrimination claims of Catholic school teachers.

The “ministerial exception”, which protects religious institutions from anti-discrimination suits in hiring employees deemed to be “ministers,” was first recognized in Hosanna-Tabor v. EEOC. In Our Lady of Guadalupe, the Supreme Court extended the scope of this exception to Catholic school teachers who carried out important religious functions but were not otherwise “ministers.” The consequences of the Court's ruling was considered a victory for religious liberty, but opened the door for the “ministerial exemption” to be applied to “countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions,” as cautioned by Justice Sonia Sotomayor in her dissenting opinion joined by Justice Ruth Bader Ginsburg.

Reproductive Health: Russo v. June Medical Services LLC

Oral argument & decision dates: Heard on March 4, 2020; decided on June 29, 2020.

Issue Presented:
 Whether the decision by the U.S. Court of Appeals for the Fifth Circuit, below, upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflicts with the Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

Facts and background: 
Several abortion clinics and doctors challenged Louisiana’s Act 620, which required “that every physician who performs or induces an abortion shall ‘have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.’”

In Russo v. June Medical Services LLC, the U.S. Supreme Court held that Louisiana's Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital, is unconstitutional. The American Bar Association submitted an amicus curiae brief in this case, urging the Supreme Court to apply basic rule of law principles and reverse the Court of Appeals for the Fifth Circuit’s finding in favor of the Louisiana Law.

The SCOTUS’s decision to reverse and rule against Act 620 rested on the doctrine established in Planned Parenthood of Southeastern Pa. v. Casey (1992) and Whole Woman’s Health v. Hellerstedt (2016)—courts must conduct an independent review of the legislative findings supporting an abortion-related statute and weigh the law’s “asserted benefits against the burdens” it creates. As the first abortion-related case to reach the SCOTUS after the appointment of Justices Neil Gorsuch and Brett Kavanaugh, the 5-4 decision with Chief Justice John Roberts joining the liberal majority appeared to be a win for pro-choice advocates. However, in Justice Roberts’s separate concurrence, he stated that while he was compelled to apply the precedent set in the nearly identical case of Whole Woman’s Health, he continued to disagree with that precedent. This signals that Roberts is amenable to setting a new standard for abortion jurisprudence should new abortion restrictions that diverge from Whole Woman’s Health reach the court. 

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS updates (January 2020, October 2019, July 2019, April 2019, January 2019) from the Section's quarterly e-Newsletter on cases related to civil rights and social justice. 

Additionally, the Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing social inequities and their legal connection. If interested in learning more about these issues, recordings of past webinars can be found on the Section’s YouTube channel. 

Please refer to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs filed by the ABA pertaining to civil rights cases. 

For existing policy, check out the Policy Project, featuring a compilation of all policy drafted by the ABA relating to the committees of the Section of Civil Rights and Social Justice.