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Take Two—Or Three: High Court December Calendar Full of Sequels

Nov. 30, 2020, 9:50 AM

From the 2020 census, to human rights, to robocalls, the Supreme Court will confront familiar issues addressed in previous cases during the December sitting that starts Monday.

The entire 2020 term is full of repeat cases that tackle issues—and in one instance even the same case—that were addressed in previous terms.

But “December is really the apex when it comes to the theme of déjà vu,” said Pacific Legal Foundation attorney Anastasia P. Boden, who titled her preview of the 2020 term, “Looking Ahead: Déjà Vu at the Supreme Court.”

There are several reasons that sequels might make their way to the high court, said Arnold & Porter’s John Elwood.

One explanation is that the Roberts Court is generally minimalist, Elwood said. If the justices “decide the minimum to dispose of a particular case, they sometimes need to revisit the issue down the road to decide different applications,” Elwood said.

Double Take

The best example of that this sitting is Henry Schein Inc. v. Archer and White Sales Inc., an arbitration case first argued in 2018 that returns Dec. 8. The same attorneys, Paul Weiss’s Kannon Shanmugam and Alexander Dubose Jefferson’s Daniel Geyser, will argue again.

Shanmugam and Geyser will face off for the fifth time in the case’s second time at the high court.

“It’s somewhat rare that a single case will give rise to multiple certworthy issues, but it does happen—especially when the Court decides a case narrowly, and it later returns presenting the broader issue,” Geyser said.

The first time around, the court sided with business trying to keep matters out of federal courts.

In his first Supreme Court opinion, Justice Brett Kavanaugh specifically said that the court could address new arguments against arbitration “in the first instance.”

On remand, the New Orleans-based U.S. Court of Appeals for the Fifth Circuit again rejected the dental supplies wholesaler Henry Schein’s bid to force arbitration—this time on different grounds.

High Priority

Another case featuring returning counsel is the latest census dispute to hit the high court, Trump v. New York.

New York Solicitor General Barbara Underwood and the ACLU’s Dale Ho will partner again to challenge the Trump administration’s handling of the 2020 census.

Their first bid in 2019 resulted in a 5-4 ruling finding that the administration could add a citizenship question to the 2020 census but hadn’t given a good enough reason for doing so.

The given explanation—that it was necessary to enforce the Voting Rights Act—"seems to have been contrived,” Chief Justice John Roberts wrote in Department of Commerce v. New York.

Earlier this term, the census came before the justices on their “shadow docket"—the emergency applications and often unsigned orders asking for relief from lower court rulings. That ruling, Ross v. National Urban League, allowed the administration to stop counting for the census early.

Census 3.0—which will kick off the December sitting on Nov. 30—involves the administration’s plan to exclude undocumented immigrants from the determination of how many representatives each state gets in the U.S. House.

Underwood and Ho will face off against Acting Solicitor General Jeffrey Wall.

Repeat cases involving the census occur because the executive branch has made it a priority, Elwood said.

Natural Repetition

“Some of this repetition is natural, because a few cases depended on decisions from last term,” Boden said.

For example, in a quirky lineup last term in Ramos v. Louisiana, the justices said serious criminal convictions must be obtained by unanimous juries.

Edwards v. Vannoy, which the justices will hear Dec. 2, asks whether that ruling applies retroactively—that is, does it apply to convictions handed down prior to the court’s decision in Ramos.

Other times, issues come back to the court “because the area of law is particularly important and involves a lot of cases,” Elwood said.

He pointed to the Telephone Consumer Protection Act, which is at the center of two recent Supreme Court cases—one last term and another before the justices on Dec. 8.

The popular legislation seeks to cut down on the dizzying number of “robocalls” that interrupted dinner tables across America.

In Barr v. American Association of Political Consultants, the justices struck down an exception to the TCPA’s robocall prohibition.

This term in Facebook v. Duguid, the justices will consider what counts as an “automatic telephone dialing system” for purposes of making robocalls.

Special Interest


Finally, issues may frequently come back to the court when a particular one interests the justices, Elwood said.

The current court is focused largely on religious cases dealing with free exercise, Elwood said. During the years when Anthony Kennedy and Sandra Day O’Connor sat on the court, it was free speech. And under Chief Justice William Rehnquist, it was federalism.

In addition to free exercise cases, the current court has taken several involving separation of powers and the so-called unitary executive.

Last term in Seila Law v. Consumer Financial Protection Bureau, the justices said Congress went too far trying to insulate the head of the agency from political pressure. The president has broad power over federal agencies, the court said.

There is yet another challenge to the structure of an agency this term—this time, the Federal Housing Finance Agency in Collins v. Mnuchin.

And the justices will continue their decade-long quest to rein in the use of the once-dormant Alien Tort Statute, which gives federal courts the authority to hear certain cases brought by foreign nationals.

Its use exploded in the early 2000s after the court suggested that it could be used to sue over human rights abuses that occur abroad.

Since 2012, the court has cut back on that, saying that there’s a presumption of extraterritoriality that prevents domestic laws from applying outside the U.S., in Kiobel v. Royal Dutch Petroleum.

In 2018, the court followed up by saying that foreign corporations couldn’t be sued in the U.S. under the Alien Tort Statute.

Now in Nestle v. Doe, the court will consider whether victims and their families can sue U.S. corporations for human rights abuses—here, allegations of child slavery related to the cocoa trade.

Though not unprecedented, there are a lot of reasons why repeat cases have converged this term.

But “perhaps some repetition was also deliberate,” Boden said. The “Court may have wanted a quieter docket following the blockbuster cases last term.”

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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