Supreme Court's New Term Will Include 8th Circuit Cases

Richard Shugrue
The Daily Record

The United States Supreme Court will start its 2020 term this morning on the phone, absent a giant of the law, Ruth Bader Ginsburg, mopping up cases postponed from last March and April and employing the technology adopted when arguments restarted in May.

The absence of Justice Ginsburg leaves the court with three liberals and five conservatives, if you count Chief Justice Roberts, considered a “swing vote” by many but counted with the “right” for his frequent deciding votes to strike down lefty matters. Assuming the confirmation of Judge Amy Coney Barrett, the bench will be full again in time for the high-profile Affordable Care Act case on Nov. 10.

The justices and the attorneys are participating remotely, and the Supreme Court building is still virtually shut down, except for the mourners for the second woman to sit on the court. The public is listening to the arguments through a feed provided by the court.

The justices held their long conference last Tuesday to review some 1,800 cases which piled up over the summer since the recess began in July. Only 58 cases were argued in the last term. 

Given the holdovers still being worked through, court watchers say this term is unlikely to see a large number of new arguments.  The calendar has been set through December, when 12 cases are to be heard.

The cases to be argued include freedom of religion claims, to a Fourth Amendment seizure controversy, a long-lingering water rights question and an Eighth Amendment issue arising from a life sentence of a teen.

The blockbuster California v. Texas case could mark the end of Obamacare. A key element of the matter is standing, and another is severability: If one part of the act is struck, does the rest survive?

Nebraska is one of the many states joined as respondents in the case.

Two cases are from the 8th Circuit and the panel opinions in both were written by Nebraska’s own Judge Arlen Beam. Beam is a 90-year-old who was first appointed to the U.S. District Court by President Ronald Reagan in 1981 and then to the 8th Circuit in 1987.

The first 8th Circuit case, Rutledge v. Pharmaceutical Care Management Association, will be heard Tuesday. It asks whether an Arkansas statute regulating pharmaceutical benefit managers’ regulation of drug reimbursement rates is preempted by the federal ERISA law. Most states have statutes like the Arkansas rule.

The second case from our circuit came from Nebraska and a second judge on the three judge panel was Steve Grasz, an appointee of President Donald Trump to the court who formerly served as the state’s Deputy Attorney General. The case is Pereida v. Barr, which will be heard Oct. 14.

A Mexican citizen, Pereida, pleaded no contest to a criminal charge in Nebraska and the federal government started removal proceedings against him. Pereida sought to cancel the removal.  The crime involved an attempt to use a fake Social Security card to get a job, and Pereida argues that it is not a crime involving moral turpitude under the Immigration and Nationality Act, and thus not grounds for removal. Beam’s opinion ruled that the petitioner had the burden to establish his eligibility for cancellation of removal, which he did not meet.

Today’s arguments feature a water rights dispute, Texas v. New Mexico, which is an original jurisdiction matter, and has been heard by special masters for decades. In fact, it has been at the court longer than Justice Neil Gorsuch, age 53, has been alive!

The second case is Carney v. Adams, whose central issue is whether the First Amendment should invalidate a long-time Delaware constitutional provision blocking members of one political party from more than a majority membership on top state courts.

Here are a half dozen of the other interesting cases to be heard this term:

• Tanzin v. Tanvir: When three Muslim Americans were asked by FBI agents to inform on other Muslims, they refused citing religious beliefs. They were placed on the No Fly List and sued the agents in their individual capacities. Their names were removed from the list in order to “moot” the suit, but the court of appeals agreed that the suit could go forward under the Religious Freedom Restoration Act. The key question is whether damages may be recovered from defendants individually.

• Torres v. Madrid: If police shoot and wound a person who gets away, has a seizure taken place for Fourth Amendment purposes? There is a genuine conflict among the circuits on this question.

• Google v. Oracle: This case asks whether copyright protection extends to a software interface and whether such use is “fair use.”

• Jones v. Mississippi: A 15-year-old committed homicide and was found guilty. He was sentenced to life without parole and now argues that under the Eighth Amendment he was entitled to a finding that he is permanently incorrigible, citing the decision in Miller v. Alabama (2012).

• Department of Justice v. House Judiciary Committee: In relation to the Trump impeachment, the House sought secret grand jury materials from the Mueller investigation. Arguing that an impeachment is a judicial inquiry, the two lower courts agreed with the House, and DOJ appealed.

• Fulton v. City of Philadelphia: This case involves a free exercise claim arising from the city’s refusal to contract with a foster care agency which would not serve same-sex couples who wished to adopt because of the agency’s religious beliefs. The city argued that it is not a First Amendment violation to deny taxpayer funds to a group that does not treat all clients equally. The argument is set for Nov. 4.

My con law professor, Nebraska Law’s Fred Beutel, said, “never predict what the Supreme Court might do.” So, I’m crystal-balling nothing. But a very interesting case from Lincoln, Zoie H. v. Nebraska, was on long conference list for the day of my deadline, and it involves the right to a jury trial in a juvenile proceeding which deprives a youth of the fundamental right to keep and bear arms.

The Lancaster County public defender told me the other day that his team convinced the renowned Supreme Court advocate Paul Clement to join them in the case and is on the cert petition.

So, the Supreme Court has before it a Second Amendment matter and a Sixth Amendment issue and one of the finest lawyers in the country – a former solicitor general and a man on Trump’s future Supreme Court candidates list. How could the justices pass up this Husker matter? (As of last Thursday, it was still pending petition, SCOTUSblog reports.)


Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.


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