Students for Fair Admissions,

Inc. v. University of North Carolina (No. 21-707)

Oral argument: Oct. 31, 2022

Court below: U.S. District Court for the Middle District of North Carolina

The University of North Carolina considers an applicant’s race in its undergraduate admissions decisions. The Supreme Court previously held in Grutter v. Bollinger that such consideration is constitutional so long as race is one of many factors in a holistic review process and is used to enhance racial diversity at the institution. Students for Fair Admissions, Inc. argues that the Supreme Court should overrule Grutter and hold that the Constitution does not permit racial discrimination of any kind. The University of North Carolina contends that the Supreme Court correctly decided Grutter, and that the Constitution permits universities to consider race when doing so provides increased racial diversity and therefore a better academic experience. The Court’s decision in this case has heavy implications for racial diversity in universities, race discrimination, university policies, and the academic experience.

Full text available at https://www.law. cornell.edu/supct/cert/21-707. 

Cruz v. Arizona (No. 21-846)

Oral argument: Nov. 1, 2022

Court below: Arizona Supreme Court

This case asks the Supreme Court to consider whether an Arizona Rule of Criminal Procedure, which only allows postconviction relief if there has been a significant change in law to make it an adequate and independent state-law ground for the judgment, prevents federal review. Petitioner John Montenegro Cruz claims that the rule cannot apply because it conflicts with the Supreme Court’s precedent requiring the application of settled rules of constitutional law on postconviction review. Cruz also asserts that the rule requires consideration of federal law, and thus that the Supreme Court may review determinations made under it for consistency with federal law. Respondent, the state of Arizona, argues that its rule prevents federal review because it is premised on a matter of state law, rather than federal law. Arizona asserts that its rule only regulates when a claim may be brought, not the rule to be applied when evaluating the claim.

Full text available at https://www.law. cornell.edu/supct/cert/21-846. 

Jones v. Hendrix (No. 21-857)

Oral argument: Nov. 1, 2022

Court below: U.S. Court of Appeals for the Eighth Circuit

This case asks the Supreme Court to determine the extent to which habeas relief is available to a prisoner after a Supreme Court case heightens the standard of conviction for the crime they were convicted of. The relevant statutory provision, 28 U.S.C. § 2255(e)’s saving clause, allows a prisoner to move for habeas relief if alternative remedies available under other subsections of § 2255 are “inadequate or ineffective to test the legality of [their] detention.” Petitioner Marcus DeAngelo Jones argues that because the lower court applied the wrong substantive law, the alternative remedies were ineffective in testing the legality of his detention, and that he is therefore entitled to habeas relief under § 2255(e). Jones further argues that the Eighth Circuit’s interpretation of the statute renders § 2255(e) superfluous and violates many of Jones’s constitutional rights. Respondent Dewayne Hendrix counters that the § 2255(e) requires a showing of actual innocence, which he argues Jones cannot make, in order to trigger habeas relief, and that Jones’ constitutional concerns are misguided. The outcome of this case will determine the availability of post-conviction relief to prisoners following changes in relevant substantive law.

Full text available at https://www.law. cornell.edu/supct/cert/21-857.

Bittner v. United States (No. 21-1195)

Oral argument: Nov. 2, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit This case asks the Supreme Court to decide an issue of statutory construction; specifically, on what basis should the Secretary of the Treasury evaluate taxpayer violations of the Bank Secrecy Act (BSA). The Bank Secrecy Act requires citizens with a financial interest in a foreign bank account to report that financial interest to the Commissioner of Internal Revenue for each year that the interest exists. Alexandru Bittner contends that evaluating violations under the Bank

Secrecy Act on a per-form basis is consistent with the statute’s text, history, and purpose. The United States counters that the text of the Bank Secrecy Act clearly outlines that a violation occurs on a per-account basis, not a per-form basis, and that the statute’s history and purpose confirm this viewpoint. The outcome of this case has heavy implications for tax law, banking regulations, civil penalties for tax violations, and financial interests in foreign bank accounts.

Full text available at https://www.law. cornell.edu/supct/cert/21-1195.

Securities and Exchange Commission v. Cochran (No. 21-1239)

Oral argument: Nov. 7, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit This case asks the Supreme Court to decide whether a federal district court has jurisdiction over a suit in which the respondent in an ongoing Securities and Exchange Commission (SEC) administrative proceeding seeks to enjoin that proceeding, on account of an alleged constitutional defect in the statutes governing the removal of the overseeing administrative law judge. The SEC claims that the Court’s decision in Free Enter. Fund v. Pub. Co. Oversight Bd. specifically allows double-tenure protection for administrative law judges, that decisions in Thunder Basin Coal Co. v. Reich and Elgin v. Dep’t of the Treasury do not require Congress to provide a clear statement in order to strip district courts of jurisdiction, and that constitutional challenges to its administrative adjudications are properly addressed through the Securities Exchange Act of 1934 (Exchange Act) and the Administrative Procedure Act (APA). Michelle Cochran counters that administrative law judges should not be granted double tenure from removal because it infringes on executive branch authority, that Thunder Basin requires a clear Congressional statement stripping district courts of jurisdiction, and that the SEC’s statutory authority is insufficient to address her constitutional challenge. The Court’s holding could significantly impact the SEC’s adjudicative activities and the nature, volume, and frequency of judicial review cases more broadly.

Full text available at https://www.law. cornell.edu/supct/cert/21-1239.

Axon Enterprise, Inc. v. Federal Trade Commission (No. 21-86)

Oral argument: Nov. 7, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether claims brought by parties like Axon Enterprise, Inc. (Axon) that challenge the structure of the Federal Trade Commission (FTC) can be reviewed by district courts prior to the completion of agency proceedings. Axon contends that federal district courts should be able to hear constitutional challenges to agency structure concurrently with agency enforcement proceedings because enjoining such proceedings is necessary to avoid “here-and-now” constitutional injury. The FTC counters that the Federal Trade Commission Act implicitly strips district courts of subject-matter jurisdiction over these challenges, making judicial review available only in the courts of appeals and only after a final order by the FTC. The case carries significant implications for administrative law because allowing businesses subject to FTC regulation to preemptively challenge agency proceedings could significantly scale back the agency’s enforcement powers.

Full text available at https://www.law. cornell.edu/supct/cert/21-86. 

Health and Hospital Corporation of Marion County, Indiana v. Talevski (No. 21-806)

Oral argument: Nov. 8, 2022

Court below: U.S. Court of Appeals for the Seventh Circuit

This case asks the court to analyze both 42 U.S.C. § 1983 and the Federal Nursing Home Reform Act (FNHRA), 42 U.S.C. § 1396r et seq., to decide whether FNHRA, a Spending Clause statute, creates enforceable private rights of action under § 1983. Petitioners Health and Hospital Corporation of Marion County, Indiana (HHC) argue that contrary to the Supreme Court’s holding in Wilder v. Virginia Hospital Association, § 1983 does not imply a private right of action for Spending Clause legislation unless the legislation expressly includes a private right of action. HHC further contends that even if Spending Clause legislation can imply a private right of action, there is no private right of action under FNHRA because its language does not grant statutory rights to patients and because it contains an individualized enforcement mechanism which precludes § 1983 enforcement. Respondent Ivanka Talevski counters that the plain text of § 1983 unambiguously creates a private right of action whenever Congress uses Spending Clause legislation to protect a federal right and argues that overturning Wilder would contradict decades of judicial and legislative precedent. Talevski further argues that FNHRA’s language clearly establishes statutory federal rights. This case touches on important questions regarding healthcare administration, the protection of nursing home residents, federalism, and the separation of powers.

Full text available at https://www.law. cornell.edu/supct/cert/21-806. 

Mallory v. Norfolk Southern Railway Co. (No. 21-1168)

Oral argument: Nov. 8, 2022

Court below: Supreme Court of Pennsylvania

This case asks the Supreme Court to consider whether the Due Process Clause permits consent-by-registration as a basis for personal jurisdiction. Pennsylvania’s consent-by-registration statute requires that foreign corporations registered in the state consent to general personal jurisdiction there. Robert Mallory contends that consent-by-registration statutes produce valid consent to personal jurisdiction because consent-by-registration has been traditionally accepted as a basis of personal jurisdiction, and recent cases have not overruled this notion. Norfolk Southern Railway Company counters that consent-by-registration statutes fail to provide valid consent because registration jurisdiction is neither widely accepted nor consistent with modern personal jurisdiction jurisprudence. The outcome of this case has heavy implications for businesses and state sovereignty.

Full text available at https://www.law. cornell.edu/supct/cert/21-1168.

Haaland v. Brackeen (No. 21-376)

Oral argument: Nov. 9, 2022

Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether the Indian Child Welfare Act (ICWA) violates the U.S. Constitution’s Fourteenth Amendment equal protection guarantee and contravenes anticommandeering principles rooted in the Tenth Amendment. Deb Haaland, Secretary of the Department of the Interior, argues that ICWA’s classification of “Indian child” is constitutional because the classification is political and tied to Congress’s “unique obligation” to Indian tribes. Haaland further contends that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause. Chad Everet Brackeen asserts that ICWA’s classification of “Indian child” is race-based and violates the Equal Protection Clause. Brackeen also asserts that ICWA’s placement preferences exceed Congress’s authority by forcing state agencies to carry out federal laws. The outcome of this case has important implications for Indian children’s interests, tribal interests, and state sovereignty regarding the adoption proceedings of Indian children.

Full text available at https://www.law. cornell.edu/supct/cert/21-376. 

Ciminelli v. United States (No. 21-1170)

Oral argument: Nov. 28, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to decide whether the “right to control” theory of fraud creates a cause of action under the federal wire fraud statute. Under the “right to control” theory, the federal wire fraud statute may be used to punish schemes which intend to deprive a victim of valuable information regarding an economic decision. Ciminelli claims that the “right to control” theory improperly expands rights considered in the fraud statutes and improperly eases the government’s burden of proof. United States maintains that the “right to control” is properly limited to specifically target information deprivation schemes with tangible economic harms and that Ciminelli’s conviction holds even without the “right to control” theory. This case has significant implications for the construction industry, concerns of overcriminalization, and the limit of federal jurisdiction.

Full text available at https://www.law. cornell.edu/supct/cert/21-1170. 

Percoco v. United States (No. 21-1158)

Oral argument: Nov. 28, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Court to analyze 18 U.S.C. § 1346, the honest-services fraud statute, and determine if an individual with informal power but no official governmental position can violate the statute. Joseph Percoco and Steven Aiello argue that private individuals lacking formal governmental power cannot commit honest-services fraud because they do not owe the public a duty of honest services. Percoco and Aiello further argue that including private individuals within § 1346 would render the statue unconstitutionally vague, violate the First Amendment, and entrench upon state sovereignty. The United States contends that private individuals can commit honest-services fraud when they have been selected for public office and when they are de facto officeholders in all but name. The United States also argues that § 1346 clearly defines improper behavior and does not limit First Amendment activity. This case touches on important questions regarding lobbying, free speech, and the interaction of state and federal bribery laws.

Full text available at https://www.law. cornell.edu/supct/cert/21-1158. 

United States v. Texas (No. 22-58)

Oral argument: Nov. 29, 2022

Court below: U.S. District Court for the Southern District of Texas

This case asks the Supreme Court to consider whether Texas and Louisiana may sue the federal government in federal court despite not having suffered a direct injury from agency action, and whether the Department of Homeland Security’s (DHS) September 2021 Guidelines for the Enforcement of Civil Immigration Law (Guidelines) violate the Immigration and Nationality Act (INA) or the Administrative Procedure Act (APA). The Court must also decide whether the INA prevents a court from vacating an administrative action under the APA. The United States claims that Texas and Louisiana cannot sue the federal government because the Constitution requires a direct harm, that the Guidelines do not violate the INA because the statutory language accommodates traditional prosecutorial discretion, and that the INA prevented the district court from vacating the Guidelines. Texas and Louisiana counter that they can sue because a direct injury is not required when a state sues the federal government, that the Guidelines violate the INA because the statutory language specifically override prosecutorial discretion, and that the district court properly vacated the Guidelines because it was authorized by the broad statutory language and court precedent and did not conflict with the INA. The Court’s holding will affect the removal for noncitizens, which significantly impacts the social treatment of and rhetoric surrounding noncitizens, government efficiency and accountability, and public health, safety, and stability.

Full text available at https://www.law. cornell.edu/supct/cert/22-58. 

Wilkins v. United States (No. 21-1164)

Oral argument: Nov. 30, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine if the Quiet Title Act’s statute of limitations is a jurisdictional requirement. Petitioners Larry Steven Wilkins and Jane B. Stanton argue that Congress must expressly state its intent when drafting a statute of limitations meant to be treated as a jurisdictional bar; therefore, the absence of such explicit language in the Quiet Title Act means that the statute of limitations is not jurisdictional. The United States contends that Supreme Court precedent supports treating the statute of limitations as a jurisdictional rule and emphasizes that there are no intervening Supreme Court decisions or statutory revisions of the Quiet Title Act that overrule such precedent. The outcome of this case will determine the accessibility of legal relief for individuals when resolving land disputes with the federal government and affect the balance between local governments and the federal government in litigation involving the Quiet Title Act.

Full text available at https://www.law. cornell.edu/supct/cert/21-1164. 

MOAC Mall Holdings LLC v. Transform Holdco LLC (No. 21-1270)

Oral argument: Dec. 5, 2022

Court below: U.S. Court of Appeals for the Second Circuit

This case asks the Supreme Court to determine whether a provision of federal bankruptcy law, 11 U.S.C. § 363(m), restricts the power of federal courts to review the order approving the sale of Sears’ assets. In the wake of Sears’ bankruptcy filing, Sears’ former CEO created a company, Transform HoldCo. Transform HoldCo then acquired Sears’ lease for space located in the Mall of America and subsequently assigned that lease to one of its subsidiaries with approval from the Bankruptcy Court. MOAC Mall Holdings, which owns Mall of America, challenged the assignment in federal court. Transform HoldCo contends that federal courts do not have the ability to review the decision of the Bankruptcy Court, and that regardless, the relief that MOAC seeks is unavailable because under no circumstances can MOAC retake control of the lease. MOAC contends both that the assignment decision is indeed reviewable by federal courts and also that it is entitled to relief under the relevant statutes. This case has important implications for judicial review and for the protections that mall owners and good-faith transferees have during bankruptcy proceedings.

Full text available at https://www.law. cornell.edu/supct/cert/21-1270.

303 Creative LLC v. Elenis (No. 21-476)

Oral argument: Dec. 5, 2022

Court below: U.S. Court of Appeals for the Tenth Circuit

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. The Colorado Anti-Discrimination Act (CADA) limits a public accommodation’s ability to refuse services to a customer based on their identity, such as sexual orientation. 303 Creative LLC and its owner Lorie Smith argue that CADA violates their First Amendment rights to free artistic expression and religious belief. Respondent Aubrey Elenis, Director of the Colorado Civil Rights Division, counters that CADA regulates discriminatory commerce, not speech, and thus does not violate 303 Creative LLC’s First Amendment rights. The outcome of this case has heavy implications for LGBTQ+ rights, freedom of speech and religion, and creative expression.

Full text available at https://www.law. cornell.edu/supct/cert/21-476. 

Bartenwerfer v. Buckley (No. 21-908)

Oral argument: Dec. 6, 2022

Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether a member of a partnership is prohibited from discharging debt fraudulently incurred by their partner without their knowledge. Kate Bartenwerfer argues that the Court cannot prohibit her from discharging debts in bankruptcy merely because those debts were obtained by her partner’s imputed fraud that she was not responsible for. Kieran Buckley counters that the Bankruptcy Code asks only whether debts were obtained by fraud and does not draw distinctions based on whether any individual debtor is responsible for that fraud.

This case has implications for prioritizing relief to debtors or creditors in bankruptcy and for the liabilities of individuals in a marriage or domestic partnership.

Full text available at https://www.law. cornell.edu/supct/cert/21-908. 

United States, ex rel. Polansky v. Executive Health Resources, Inc. (No. 21-1052)

Oral argument: Dec. 6, 2022

Court below: U.S. Court of Appeals for the Third Circuit

This case asks the Supreme Court to decide whether the government may dismiss a qui tam action over the objections of the relator when the government chooses not to proceed with the action at the outset. Jesse Polansky argues that the text, structure, history, and purpose of the False Claims Act indicate that when the government chooses not to pursue an action at the outset of a case, the relator has the exclusive right to decide whether to proceed with an action or request its dismissal. Polansky maintains that the government cannot retain its right to dismiss after it declines to proceed at the outset. Executive Health Resources, Inc. counters that the False Claims Act allows the government to dismiss a qui tam action at any time because the Constitution vests executive power in the President. Executive Health Resources contends that delegating executive power to relators, as Polansky suggests, would be unconstitutional. The case has significant policy implications because litigating qui tam actions is costly for all parties involved, and a ruling for unrestricted governmental dismissal authority could chill relators from bringing future qui tam actions, whereas a ruling for limited government dismissal authority could burden the government with meritless qui tam actions.

Full text available at https://www.law. cornell.edu/supct/cert/21-1052.