SCOTUS Update

Cases on the Docket

October, November, and December 2021

United States v. Zubaydah

Oral argument date: October 6, 2021

Facts: Zayn Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden. Upon capturing Zubaydah, U.S. military forces detained him in Poland. The European Court on Human Rights ruled that Zubaydah's treatment during his detention amounted to torture. Zubaydah filed an application seeking disclosure of information on his detention. The district court first granted discovery but later withdrew by citing the state-secrets privilege. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the case. It held that not all of the information requested was privileged and the court could allow limited discovery while protecting national security interests.

Issue(s): Whether the U.S. Court of Appeals for the Ninth Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.

Significance: This case addresses the state-secrets privilege and has the potential to impact national security as well as the extent to which information about detainees and their treatment will be disclosed.

Ramirez v. Collier

Oral argument date: November 1, 2021

Facts: In 2008, John Ramirez was sentenced to death for the murder of Pablo Castro, with his execution date set for February 2, 2017. Ramirez moved to postpone the execution date while he made a legal counsel substitution. The state set a new execution date for September 9, 2020 which was postponed to September 8, 2021 upon Ramirez filing a spiritual advisory claim. Subsequently, Ramirez’s new spiritual advisory claim requesting to have his pastor pray aloud and touch him during the execution as well as stay of execution were denied. Ramirez filed an emergency appeal arguing that his constitutional rights and federal protections for inmates' religious rights were violated. SCOTUS granted his stay of execution and petition for a writ of certiorari. 

Issue(s):

1. Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; 

2. Whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

Significance: This case concerns the free exercise of religion. The outcome of this case has the potential to impact the support spiritual advisors are allowed to provide and the role religion plays during executions.

Houston Community College System v. Wilson

Oral argument date: November 2, 2021

Facts: David Wilson was elected to the Board of Trustees of Houston Community College in 2013. In 2017, Wilson began engaging in continued public critique of the Board and its members. He was subsequently censured by the Board, barred from holding officer positions, and ordered to cease and desist. As a result, Wilson sued Houston Community College, arguing that they had violated his First Amendment Right to freedom of speech. The U.S. Court of Appeals for the Fifth Circuit ruled in favor of Wilson, finding that the Board had violated Wilson’s First Amendment rights in ordering his censure.

Issue(s): Whether a member’s censure by an elected body constitutes a violation of the First Amendment right to freedom of speech.

Significance: Longstanding judicial precedent supports the disciplinary authority of a legislative body towards its own members, whether at the national, local, or interpersonal level. This case addresses the constitutionality of such authority when it comes into conflict with freedom of speech, a staunchly protected right. 

New York State Rifle & Pistol Association Inc. v. Corlett

Oral argument date: November 3, 2021

Facts: New York State law prohibits the possession of firearms without a license. In order to receive a license to carry a firearm outside the home, one must demonstrate “proper cause” for the purpose of self-defense. Robert Nash and Brandon Koch both applied to obtain concealed carry for their firearms and were rejected. The two men challenged the New York law, arguing that it violated their Second Amendment rights to bear arms. The U.S. Court of Appeals for the 2nd Circuit ruled against Nash and Koch, finding that the New York law regulates, but does not unduly restrict, the right to possess a firearm. 

Issue(s): Whether a state may prevent an individual from carrying handguns outside the home for purposes of self-defense.

Significance: Precedent set in District of Columbia v. Heller affirmed the right of an individual to possess firearms within the home but left more ambiguous a state’s ability to limit carry outside the home. This case, directly challenging the question of concealed carry, may signify a major development for gun ownership and Second Amendment questions.

*The American Bar Association filed an amicus brief on September 21, 2021*

Federal Bureau of Investigation v. Fazaga

Oral argument date: November 8, 2021

Facts: Three Muslim residents of Southern California who practice Islam filed a lawsuit alleging that the FBI had used a confidential informant to surveil Muslims at the Islamic Center of Irvine for at least fourteen months. They claimed they faced anti-Muslim discrimination and unlawful searches. The U.S. Attorney General cited the state-secrets privilege and moved to dismiss the case. The district court dismissed all claims but one. The Ninth Circuit reversed, and the appellate court denied a petition for a rehearing en banc.

Issue(s): Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Significance: This case concerns the state-secrets privilege and lawfulness of government surveillance. The outcome could greatly impact national security and the extent to which information will be disclosed to the public. 

United States v. Vaello-Madero

Oral argument date: November 9, 2021

Facts: The Supplemental Security Income (SSI) program provides monthly payments to low-income people who are 65 or older and have disabilities. Recipients of this program include residents of the 50 states, the District of Columbia, and the unincorporated territory of the Northern Mariana Islands, but not Puerto Rico. Born in Puerto Rico, Jose Luis Vaello-Madero moved to New York in 1985. In 2012, he started receiving SSI payments and, in 2013, he moved back to Puerto Rico. He continued to receive payments while in Puerto Rico until 2016. Subsequently, the federal government filed a lawsuit to recover over $28,000 in benefits. The district court ruled for Vaello-Madero, claiming that excluding Puerto Rico from the SSI program violated the equal-protection component of the Due Process Clause of the Fifth Amendment. The U.S. Court of Appeals for the First Circuit affirmed.

Issue(s): 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.

Significance: This case examines whether Puerto Rico being excluded from the SSI program is a violation of the equal-protection component of the due process clause of the Fifth Amendment. The outcome of this case has the potential to alter the current SSI program and its recipients. 

*The American Bar Association filed an amicus brief on September 7, 2021*

Dobbs v. Jackson Women’s Health Organization

Oral argument date: December 1, 2021

Facts: In 2018, the Mississippi state legislature passed the “Gestational Age Act,” which bans abortions after the 15th week of pregnancy. Jackson Women’s Health Organization, the only abortion provider in the state, challenged the constitutionality of the law on the basis that Supreme Court precedent prohibits abortion bans prior to viability. The U.S. Court of Appeals for the Fifth Circuit ruled in support of Jackson Women’s Health Organization, finding that the state had failed to provide evidence of fetal viability at 15 weeks.

Issue(s):

1. Whether bans on elective abortions prior to fetal viability are constitutional;

2. Whether pre-viability laws should be assessed according to Planned Parenthood v. Casey’s “undue burden” standard or Whole Woman’s Health v. Hellerstedt’s balancing standard;

3. Whether abortion providers possess third-party standing to challenge laws alleging to protect women’s health from late-term abortions.

Significance: This case marks the latest major challenge to abortion following June Medical Services v. Russo, in which the Court overturned a Louisiana law requiring admitting privileges for abortion services providers. While June Medical Services addressed questions regarding accessibility, however, Dobbs more directly challenges the constitutionality of elective abortions and their prohibition. The new case, furthermore, will be heard before a decidedly more conservative bench, following the death of Justice Ruth Bader Ginsburg and her replacement by Justice Amy Coney Barrett.

*The American Bar Association filed an amicus brief on September 20, 2021*

CVS Pharmacy Inc. V. Doe

Oral argument date: December 7, 2021

Facts: Until recently, individuals with HIV were allowed to fill their prescriptions at community pharmacies. In response to CVS Caremark now requiring the use of designated specialty pharmacies, several respondents requested to opt out of the program and were denied. They sued by alleging that the program violates the anti-discrimination provisions of the Affordable Care Act, the Americans with Disabilities Act, and California’s Unfair Competition Law and Unruh Civil Rights Act. They also alleged it denies them benefits of the Employee Retirement Security Act (ERISA). The district court granted CVS’s motion to dismiss. The Ninth Circuit vacated in part and affirmed in part.

Issue(s): Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination.

Significance: The case concerns disability discrimination claims under the Rehabilitation and Affordable Care Acts and will impact whether individuals with HIV will be allowed to use community pharmacies instead of designated specialty pharmacies. 

Carson v. Makin

Oral argument date: December 8, 2021

Facts: Maine requires all school-age children in the state to have access to a free education. Local school administrative units that do not operate their own public secondary school may either work with a secondary school to provide school privileges or pay the tuition of a secondary school at which students are accepted. The Carsons, Gillises, and Nelsons, who chose to send their children to private schools that are accredited but do not meet the nonsectarian requirement because of their religious affiliation, do not qualify for tuition assistance. The families filed a lawsuit claiming that the “nonsectarian” requirement violates the Constitution on its face and as applied. The district court granted judgment to the State and denied judgment to the plaintiffs. The U.S. Court of Appeals for the First Circuit affirmed.

Issue(s): Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Significance: This case addresses the constitutionality of a state in prohibiting students from choosing to use their aid to attend schools that provide religious instruction. The outcome of this case has the potential to alter the education system in the state of Maine.

Cases Not Yet Set For Argument

Students for Fair Admissions Inc. v. President & Fellows of Harvard College

Facts: Students for Fair Admissions (SFFA), a nonprofit which opposes affirmative action policies, challenged Harvard University’s admissions process, arguing that it violates Title VI of the Civil Rights Act. Despite being a private university, Harvard, like many institutions of higher education, must comply with Title VI as a recipient of federal funds. SFFA both seeks to oppose the role of race in admissions and argue that Harvard explicitly discriminates against Asian Americans by failing to employ race-neutral alternatives in its admissions process. The U.S. Court of Appeals for the First Circuit ruled in favor of the university, finding that Harvard’s admissions policy was justifiable. On June 14th, the Court effectively postponed action on this case by requesting that the Department of Justice weigh in.

Issue(s):

1. Whether Grutter v. Bollinger, which holds that institutions of higher education may use race as a factor in admissions, is constitutional; 

2. Whether Harvard University's admissions process discriminates against Asian Americans in violation of Title VI of the Civil Rights Act.

Significance: The outcome of this case has the potential to drastically alter the college admissions process. At stake are affirmative action policies employed by universities across the country, a critical equalizer for students from underprivileged backgrounds who are drastically underrepresented in institutions of higher education.

Johnson v. Arteaga-Martinez

Facts: Antonio Arteaga-Martinez, a Mexican citizen who was under an order of removal and in detention as his application to stay in the U.S. was being processed, filed a petition for a writ of habeas corpus. He challenged the constitutionality of keeping him in detention while his application was being processed. The district court found for Arteaga-Martinez, ruling that he was entitled to a bond hearing. On appeal, the 3rd Circuit affirmed, and the U.S. government appealed to the Supreme Court.

Issue(s): Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge by clear and convincing evidence that the alien is a flight risk or a danger to the community.

Significance: This case addresses the right of non-U.S. citizens in immigration detention to a bond hearing and the constitutionality of the court in keeping them detained. The outcome of this case could greatly affect immigrant rights and the immigration system in the U.S.  

Garland v. Gonzalez

Facts: Non-U.S. citizens who have been in immigration detention for six or more months with orders of removal filed a lawsuit against the U.S. government questioning their detainment without a bond hearing. The district courts found for the detainees, claiming that the Ninth Circuit's ruling in Diouf v. Napolitano required people in immigration detention for six months or more to be entitled to a bond hearing. On appeal, the Ninth Circuit affirmed.

Issue(s):

1. Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community; 

2. Whether, under 8 U. S. C. § 1252(f)(1), the courts below had jurisdiction to grant classwide injunctive relief.

Significance: The case concerns the right of non-U.S. citizens in immigration detention to a bond hearing. This could have a significant impact on immigrant rights and the immigration system in the U.S.  

Federal Election Commission v. Ted Cruz for Senate

Facts: Ted Cruz for Senate and Senator Ted Cruz filed a lawsuit against the Commission alleging that section 304 of BCRA (52 U.S.C. § 30116(j)) violates the First Amendment rights by imposing a loan-repayment limit. 

Issue(s):

1. Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. 30116(j); 

2. Whether the loan-repayment limit violates the Free Speech clause of the First Amendment.

Significance: The case examines whether the loan repayment limit restricts political speech and association for candidates and individuals who seek to make contributions. The outcome of this case could have significant implications on election campaigns and post-election contributions.

Shurtleff v. Boston

Facts: The dispute concerns the plaintiff’s desire to fly the Christian Flag from the third flagpole at Boston City Hall. Although the City of Boston flag that flies from the third flagpole has been replaced multiple times before (with some containing religious symbols), the plaintiff’s request was denied on the basis that it would appear as an endorsement of a particular religion. A three-judge appeals court panel unanimously ruled that rejecting the Christian group’s flag did not violate free-speech rights and the First Amendment.

Issue(s):

1. Whether the 1st Circuit’s failure to apply the court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the Establishment Clause is not a defense to censorship of private speech in a public forum open to all comers; 

2. Whether the 1st Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Div., Sons of Confederate Veterans, Inc., and Pleasant Grove City v. Summum; 

3. Whether the 1st Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the court’s precedent in Matal v. Tam, and Circuit Court precedents in New Hope Family Servs., Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Educ. Ass'n/SOBC/OEA v. Jackson Cnty. Sch. Dist., and Robb v. Hungerbeeler.

Significance: The case addresses whether rejecting flying the Christian group’s flag at Boston City Hall is a violation of free-speech rights and the First Amendment. The outcome of the case can significantly impact the issue of religion in public places. 

Impact from the 2020-2021 Term

Americans for Prosperity v. Bonta

Oral argument date: April 26, 2021

Decided on: July 1, 2021

Facts: The California Attorney General’s office requires charities to provide the state information about their major donors in a confidential manner. In response to Americans for Prosperity not filing lists of their major donors, the California Attorney General demanded that they do. The petitioners filed a lawsuit alleging that requiring them to file lists burdened their First Amendment right. They provided evidence that many donor names had been released to the public on multiple occasions due to the state’s database getting hacked. The district court held that the organizations and their donors were entitled to First Amendment protection. A panel of the U.S. Court of Appeals for the Ninth Circuit reversed, and the Ninth Circuit denied the petition for a rehearing en banc.

Issue(s):

1. Whether exacting scrutiny or strict scrutiny applies to disclosure requirements that burden nonelectoral, expressive association rights; 

2. Whether California’s disclosure requirement violates charities’ and their donors’ freedom of association and speech facially or as applied to Petitioners.

Holding: The Court held that California’s disclosure requirement burdens donors’ First Amendment rights and is not narrowly tailored to serve an important government interest.

Significance: This case examines whether a state can require nonprofits to disclose information about their major donors and affect organizations that are a part of election campaigns by dissuading donors from providing financial support. The outcome of this case protects and advances donors’ First Amendment rights.

Jones v. Mississippi

Oral argument date: November 3, 2020

Decided on: April 22, 2021

Facts: Convicted of murdering his grandfather, Brett Jones was sentenced to life imprisonment without parole. In a post-conviction relief proceeding, the Supreme Court of Mississippi ordered for Jones to be resentenced to determine whether he was entitled to parole eligibility. Subsequently, the U.S. Supreme Court decided Miller v. Alabama and Montgomery v. Louisiana. In Miller, the Court held that life imprisonment without parole for juveniles violated the Eighth Amendment’s prohibition on cruel and unusual punishments. In Montgomery, it clarified that Miller barred life imprisonment without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” The circuit court determined Jones was not entitled to parole eligibility, with the court of appeals rejecting Jones’ argument to reverse the sentence. 

Issue(s): Whether the Eighth Amendment requires a sentencing authority to find that a juvenile is permanently incorrigible before it may impose a sentence of life without the possibility of parole.

Holding: The Court held that the Eighth Amendment does not require a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Significance: This case concerns permanent incorrigibility and life without parole. The outcome of this case determined that a discretionary sentencing system is constitutionally necessary and sufficient to impose a sentence of life without parole on juveniles who committed homicides.

Yellen v. Confederated Tribes of the Chehalis Reservation

Oral argument date: April 19, 2021

Decided on: June 25, 2021

Facts: Title V of the Coronavirus Aid, Relief, and Economic Security (CARES) Act makes certain funds available to the recognized governing bodies of any "Indian Tribe" as it is defined in the Indian Self-Determination and Education Assistance Act (ISDA). The Department of the Treasury determined Alaska Native Village Corporations (ANCs) are eligible to receive Title V funds. Several federally recognized tribes challenged that determination, claiming ANCs are not “Indian tribe[s].” The district court granted summary judgment to the defendants and did not distribute funds to ANCs pending an appeal. The U.S. Court of Appeals for the District of Columbia reversed, holding that ANCs are not eligible for funding.

Issue(s): Whether Alaska Native regional and village corporations established pursuant to the Alaska Native Claims Settlement Act are “Indian Tribe[s]” for purposes of the Coronavirus Aid, Relief, and Economic Security (CARES) Act

Holding: The Court held that ANCs are “Indian tribe[s]” under the ISDA and eligible for funding available to “Tribal governments” under Title V of the CARES Act.

Significance: This case addresses whether ANCs are recognized as “Indian tribe[s]” and are thus eligible for funding. The Court held that ANCs should be recognized as “Indian tribe[s]” and should receive funds. 

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS Updates (Spring 2021, Winter 2021, Fall 2020, Summer 2020) 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 you are 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.