Chemerinsky: The Supreme Court returns to a term like no other
Erwin Chemerinsky. Photo by Jim Block.
No other first Monday in October, the traditional start of a new U.S. Supreme Court term, ever has been like this one. With the country still in the midst of a pandemic, oral arguments will be held by telephone as they were in May. The justices and the country are still reeling from the death of Justice Ruth Bader Ginsburg on Sept. 18. Looming large is the coming confirmation battle over the nomination of Judge Amy Coney Barrett, who would add another staunch conservative to the court.
Usually about half the docket is set before the term begins. The court will continue to take additional cases to be heard this term until about the middle of January 2021. Already, though, the court has a number of blockbusters before it. Here’s five that are especially likely to be important.
Affordable Care Act: California v. Texas
In 2012, in National Federation of Independent Business v. Sebelius, the court in a 5-4 decision, upheld the constitutionality of the Patient Protection and Affordable Care Act. One of the key issues before the court was the constitutionality of the individual mandate, the requirement that people purchase insurance or pay a penalty. The court, in an opinion by Chief Justice John G. Roberts Jr., held that the individual mandate was a valid exercise of Congress’ power to impose a tax for the general welfare.
In December 2017, as part of the tax reform bill, Congress eliminated the penalty for individuals not purchasing health insurance. Texas and several other states brought a new lawsuit arguing that this action makes the Affordable Care Act unconstitutional. They argued that the individual mandate had been upheld as a tax, but no longer could be characterized in that manner because Congress had eliminated the penalty for failing to purchase health insurance. The challengers argued that this made the entire act unconstitutional.
The United States Court of Appeals for the Fifth Circuit held that the challengers had standing to sue. The court, in a 2-1 decision, agreed with the challengers that the individual mandate no longer could be upheld as a constitutional exercise of the taxing power, but remanded the case for the district court to consider whether this provision was severable from the rest of the law.
California and several other states intervened to defend the Affordable Care Act. The Trump administration announced that it would not do so. Before the Supreme Court, California argues that Texas and the challenging states lack standing. On the merits, California argues that the question of severability is always one of congressional intent: Would Congress have enacted the rest of the statute without the invalidated provision? California says that is an easy question here because Congress chose only to change one provision and a vote to repeal the entire Act failed.
It is estimated that 21 million people receive health insurance because of the Affordable Care Act. The court will hear oral arguments on the case on Nov. 10, almost surely while still in the midst of the COVID-19 pandemic.
Free exercise of religion: Fulton v. City of Philadelphia
May people and businesses, based on their religious beliefs, discriminate against gays and lesbians? This was the central issue, but not decided, in 2018 in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved whether a bakery could be held liable for refusing to design and bake a cake to celebrate a same-sex marriage. It is a question that the court identified but did not answer in June 2020, when it held in Bostock v. Clayton County, Georgia that Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on sexual orientation or gender identity. The court left open the issue of whether an employer could discriminate based on religious beliefs.
The city of Philadelphia contracts with private social service agencies to place children in foster homes. The city insists that the agencies not discriminate, including on the basis of sexual orientation. Catholic Social Services challenges this and says that it could not certify a same-sex married couple as foster parents because its religion does not recognize same-sex marriage as marriage. It claims that the requirement of nondiscrimination violates its free exercise of religion and its freedom of speech.
One issue, upon which certiorari has been granted, is whether the court should “revisit” Employment Division Department of Human Resources of Oregon v. Smith. In that 1990 decision, the court, in an opinion by Justice Antonin Scalia, held that the free exercise clause of the First Amendment does not provide a basis for a religious exemption from a general law. Now, though, conservatives favor such exemptions, and there well may be five votes to overrule Employment Division. In 2019’s Kennedy v. Bremerton School District, Justice Samuel A. Alito wrote an opinion respecting the denial of certiorari, joined by Justices Clarence Thomas, Neil M. Gorsuch and Brett M. Kavanaugh, and suggested that they might be open to overruling Employment Division.
If Barrett has been confirmed by the time the case is heard on Nov. 4, there could be five votes to do so and to dramatically expand the protection of free exercise of religion, including as a basis for an exemption from anti-discrimination laws.
Intellectual Property: Google v. Oracle
The court was scheduled to hear Google v. Oracle last spring, but the oral arguments were canceled and rescheduled for Oct. 7. This is likely to be a major decision concerning intellectual property law. Two questions are presented: Whether copyright protection extends to a software interface; and whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
Java is a set of computer software and specifications that provides a system for developing and deploying software for applications. Oracle owns the Java platform, which is the software used to write and run programs in the Java programming language. The platform allows programmers to write programs that can run on different types of computer hardware.
A subset of this platform is the Java Application Programming Interface. The Java API is a collection of prewritten code for various computer functions; this code is essentially a set of “shortcuts,” allowing programmers to build these prewritten functions into their own programs, rather than having to reinvent the wheel to create and use these functions in their programs.
The U.S. Court of Appeals for the Federal Circuit said that in creating Android phones, “Google copied verbatim the declaring code of the 37 Java API packages—11,500 lines of Oracle’s copyrighted code. It also copied the structure, sequence, and organization [“SSO”] of the Java API packages. Google then wrote its own implementing code.”
Google and Oracle attempted and failed to negotiate an agreement regarding this use. Oracle claimed that Android was “devastating” to its licensing strategy, as Google provides the Android platform to smartphone manufacturers for free, and it publishes the source code for use without charge through an open source license. Android has generated over $42 billion in revenue from advertising, meanwhile Oracle says that it has lost many of its customers to Android.
Oracle filed suit against Google. After a long and complicated litigation history, Google prevailed in the district court based on its claim of fair use. The Federal Circuit reversed and ruled in favor of Oracle and remanded for a trial on damages. The Supreme Court granted review to decide the important question of protection for software interfaces and the scope of fair use.
Juvenile sentences: Jones v. Mississippi
In Graham v. Florida, the Supreme Court held that there cannot be a sentence of life without parole for nonhomicide crimes committed by juveniles. In Miller v. Alabama, the court ruled that there cannot be a mandatory sentence of life without parole for homicides committed by juveniles.
In 2004, when Brett Jones was 15 years old, he got into an argument with his grandfather, who then pushed Jones into a corner and swung his fist at the boy. Jones testified that had a knife in his hand because he had been making a sandwich when the argument commenced. Jones said he felt trapped and afraid, and so he stabbed his grandfather with the knife and then a second knife until his grandfather stopped coming at him. Jones was convicted of murder and sentenced to life in prison without the possibility of parole.
Subsequent to Miller, Jones challenged his sentence, arguing that the Constitution requires that the sentencing court make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. Jones argues that the Eighth Amendment does not permit a juvenile to be sentenced to life without parole absent a finding that he is one of the rare, permanently incorrigible juveniles for whom such a sentence is permissible. The case is scheduled for Nov. 3.
Personal jurisdiction: Ford Motor Company v. Bandemer and Ford Motor Company v. Montana Eighth Judicial District Court
In recent years, the Supreme Court has narrowed the ability of a state court to exercise jurisdiction over an out-of-state defendant. Most recently, in Bristol Myers Squibb v. Superior Court of California, the court ruled that out-of-state plaintiffs injured by a prescription drug could sue the drug company manufacturer only where they are injured or where the company is incorporated or has its principal place of business.
In two cases, scheduled for argument Oct. 7, Ford Motor Co. v. Bandemer and Ford Motor Company v. Montana Eighth Judicial District Court, the court will consider whether a state court can exercise personal jurisdiction over a major car manufacturer—Ford Motor Company—when a vehicle was purchased out of that state and then brought into the state where the injuries occurred. For example, one of the cases involves a Montana resident who purchased a Ford Explorer in Washington State, brought it home to Montana, and was killed in an accident there allegedly because of a design defect in the vehicle.
Both the Minnesota Supreme Court and the Montana Supreme Court found that there was personal jurisdiction over Ford in light of all of the cars it sold and serviced in those states. But Ford is asking the Supreme Court to further limit personal jurisdiction over businesses.
These, of course, are just a few of the cases to be decided in October term 2020. Everyone wonders, as the term begins, whether the court will decide the presidential election as it did in Bush v. Gore in 2000. Attention, too, is focused on Judge Amy Coney Barrett and when she’ll be confirmed and what difference she’ll make on the court. The end of June 2021, when the term will end, seems so far away.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.