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Justices Trade Blockbusters for ‘Meat and Potatoes’ in 2021

Jan. 4, 2021, 9:45 AM

The justices will switch from blockbuster social matters to lower profile staples when they resume business in 2021.

And that’s probably just fine for the nine, who could use a break from the political spotlight that can make the court seem like just another partisan Washington institution.

In recent terms the court has waded into high-profile issues, ranging from LGBT rights to partisan gerrymandering. More recently, the court has taken up requests to decide emergency challenges to called to Covid restrictions and the outcome of the divisive 2020 presidential election.

So the justices may look fondly on the five cases they have scheduled for the January sitting—all of which include important but not flashy issues. The court’s schedule allows for a dozen or more arguments per sitting, but the last time the court set that many was in December 2019. The number lately has trended closer to nine or 10.

“There is something to the idea that they want a less exciting term,” said Williams & Connolly’s Sarah M. Harris, who made her Supreme Court debut in November.

Risky Grants

That 2020 was a presidential election year explains in part why there’s a lack of socially contentious cases remaining for the term in 2021, said Harris’ colleague Amy Mason Saharia.

Supreme Court litigation consumes massive amounts of time, money, and more from all concerned, including the justices. That’s why the justices are hesitant to consider a policy that’s later dropped from the court’s docket after a change in administrations.

Two cases in point.

The Supreme Court has agreed to hear two controversial immigration policies implemented by the Trump administration.

In one, Wolf v. Innovation Law Lab, the Supreme Court agreed to consider whether the administration’s “remain in Mexico” policy runs afoul of the Immigration and Nationality Act. Under the policy, certain asylum seekers arriving through the southern border must wait in Mexico while their claims are being reviewed by the federal government.

In the second, Trump v. Sierra Club, the justices will consider the legality of the administration’s attempts to fund construction of a southern border wall using Department of Defense funds, given that Congress has repeatedly refused to provide funding.

Both policies are likely to be nixed under the Biden administration, making Supreme Court review unnecessary.

“There’s a risk in granting those kinds of cases in an election year” given the “uncertainty about how quickly a new administration may be able to unwind certain policies,” Saharia said.

Voting Rights

An election dispute over two Arizona voting restrictions is probably the most high profile case that the court has already agreed to take up in 2021.

At the heart of Brnovich v. Democratic National Committee is a prohibition on so-called ballot harvesting—that is, a limit on who can return early ballots on behalf of third parties—and the state’s out-of-precinct voting policy, which allows election officials to reject ballots cast in the wrong precinct even if someone is eligible to vote for those candidates.

“People might not be focusing on this case because you see these voting rights cases come up a lot—at least in terms of redistricting fights” Harris said.

But Brnovich is “the first significant Section 2 under the Voting Rights Act in I think like 20 years,” Harris said.

After the Supreme Court stuck down part of the VRA in Shelby County v. Holder, Section 2—which prohibits discriminatory voting measures—has taken on additional importance in attacking laws targeting minority voters.

So it “could be quite a blockbuster,” but “it’s not the same sort of social issue that you can explain to your neighbor,” Harris said.

Separation of Powers

Harris also pointed to several cases touching on separation of powers as significant, if not headline grabbing.

In recent terms, the justices have considered challenges to the structure of the Consumer Financial Protection Bureau and the Securities and Exchange Commission.

The argument generally centers on how much control the president must have to appoint and fire agency heads or administrative law judges and whether Congress can limit those powers.

In December the court heard a similar dispute regarding the structure of the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac.

And in 2021, the justices will hear two more analogous cases.

In United States v. Arthrex Inc., the court will consider whether administrative patent judges must be appointed by the president with the advise and consent of the Senate, and, if so, how to cure the defect caused by the alternative appointment process of being picked by the Secretary of Commerce.

Similarly, in Carr v. Saul the justices will decide if challenges to the appointment of Social Security Administration judges must first be made to the agency before being pressed in federal court.

“I’m following those pretty closely because I think this is shaping up to be a big separation of powers term, even it is a meat and potatoes one,” Harris said.

More to Come

The Supreme Court isn’t done filling out its docket for the remainder of 2021.

Given the time it takes to complete briefing in each Supreme Court case, any cases granted by mid-January will be heard during the current term. The remainder will be pushed to the next one, which starts in October.

Harris pointed to a Williams and Connolly petition to watch, which she calls the “cursing cheerleader case.”

Mahanoy Area School District v. B.L. is a free speech case asking how far a school’s disciplinary powers stretch.

Here, a high school sophomore who didn’t make the varsity cheerleading team sent two messages via Snapchat “expressing her views on the situation in very graphic language with accompanying gestures,” Harris described

The question for the justices is whether that’s the kind of speech that school administrators can punish.

The U.S. Court of Appeals for the Third Circuit said schools categorically lack the power to discipline off-campus speech like the Snapchats here.

In doing so the Third Circuit split with all the other appellate courts to have considered the issue, Harris said.

Circuit splits are a hallmarks of Supreme Court grants.

The cursing cheerleader case is scheduled to be discussed at the justice private conference Jan. 8, and could be heard this term if granted.

Formal Rules Matter

Another petition to watch is the forfeiture case Serrano v. U.S. Customs and Border Protection, said Robert McNamara, whose libertarian public interest law firm Institute for Justice is handling the case at the high court.

The case asks whether the government must provide a hearing to challenge the seizure of a vehicle for civil forfeiture.

“That sounds sort of formalistic but it’s actually vitally important—as i think is illustrated by the facts of the case,” McNamara said.

The U.S. Customs and Border Protection agents seized petitioner Gerardo Serrano’s truck without a warrant on the “facially absurd theory” that accidentally leaving five low-caliber bullets in his center console, constituted an attempt to export “munitions of war,” according his petition.

The government didn’t provide Serrano with a mechanism for challenging the seizure and kept his vehicle for two years, McNamara said.

But once the lawyers got involved, the government promptly returned the car.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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