Publications

Greetings, Court Fans!

It’s the first Monday of October, which means The Nine are back in action, and so are we. As we have for the past two decades or so, we’ll be summarizing each of the Court’s decisions throughout October Term 2023. But since the opinions won’t start to roll out until around December, we thought we’d tide you over with a preview of some of the more notable cases that have already been accepted for argument in the upcoming term.

One topic that we can already say will be central to OT23 is administrative law. As in the last few terms, the Court continues to show great interest in cases examining whether a particular administrative agency’s structure comports with the Constitution. This year, it’s the Consumer Financial Protection Bureau (CFPB) and the SEC’s turn. First, in Consumer Financial Protection Bureau v. Community Financial Services Association (No. 22-448), which will be argued tomorrow morning, the Court will review a decision from the Fifth Circuit holding that the CFPB’s funding structure violates the Constitution’s Appropriations Clause. That issue is significant on its own terms, but the Court’s decision has the potential to void just about everything the CFPB has done in its 12-year history. Next, to be argued sometime later this fall, is Securities and Exchange Commission v. Jarkesy (No. 22-859), where the Court will consider whether the SEC’s power to initiate and adjudicate enforcement proceedings before an administrative law judge violates the Seventh Amendment right to a jury trial, transgresses the non-delegation doctrine, or runs afoul of constitutional provisions governing the removal of administrative officials (namely, the administrative law judges who preside over administrative enforcement actions). And if that’s not enough administrative law for you, there’s also Loper Bright Enterprises v. Raimondo (No. 22-451), where the Court will (once again) decide whether to explicitly overrule Chevron v. Natural Resources Defense Council or maybe just (as its done time and again in recent years) narrowly read the relevant statute so as to avoid Chevron entirely.  

Another notable theme of the coming term is how the First Amendment applies to social media, a topic addressed by two sets of companion cases. First up, to be argued in November, is O’Connor-Ratcliff v. Garnier (No. 22-324), and Lindke v. Freed (No. 22-611), where the Court will decide whether two public officials violated the First Amendment by blocking their critics from their social-media accounts. The lower courts split on that question, with the Ninth Circuit concluding that one public official’s blocks amounted to state action, while the Sixth Circuit held that a different official’s social-media account was more personal than governmental and so fell outside the First Amendment’s restrictions on governmental action. Later this term, the Court will take up Moody v. NetChoice, LLC (No. 22-277) and NetChoice, LLC v. Paxton (No. 22-555). Those cases ask whether Florida and Texas laws limiting social-media platforms’ ability to moderate content on their platforms violates the platforms’ First Amendment rights. The Eleventh Circuit found Florida’s moderation law unconstitutional, while the Fifth Circuit upheld a similar Texas law.

What else does the term have in store? Lots of takings and takings-adjacent cases. Specifically, in Devillier v. Texas (No. 22-913), the Court will consider whether plaintiffs injured by a state’s alleged taking of their property can sue the state under the Fourteenth Amendment, or whether the lack of any statutory cause of action against states for alleged takings dooms such suits in federal court. Sheetz v. County of El Dorado, California (No. 22-1074) will decide whether monetary conditions imposed on the issuance of building permits—here, a fee to fund local transportation infrastructure—are subject to the so-called Nollan/Dolan standard when the condition in question stems from state or local legislation rather than being imposed by local administrative officials. And Culley v. Marshall (No. 22-585) examines what hearings a state must provide (and when) to an individual whose property has been seized pursuant to state asset-forfeiture laws. 

Outside those categories, there are several cases we’ll be watching closely this term. In rough chronological order of argument, here’s some we have our eyes on:

• Acheson Hotels, LLC v. Laufer (No. 22-429), on whether a so-called Americans with Disabilities Act “tester”—that is, a person who visits websites to see if they conform to ADA requirements—has standing to sue a hotel for its allegedly non-ADA compliant website notwithstanding that she had no intention of ever staying at the hotel;

• Murray v. UBS Securities, LLC (No. 22-660), which will decide whether a plaintiff suing under the whistleblower provisions of the Sarbanes-Oxley Act must prove the employer acted with a retaliatory intent as part of their case-in-chief, or is the lack of retaliatory intent an affirmative defense the employer must prove;

• In United States v. Rahimi (No. 22-915), the Court will review a Fifth Circuit decision invalidating the conviction of a defendant charged with violating the federal ban on the possession of a firearm by anyone who is subject to a domestic-violence restraining order. That case is obviously important on its own. But it will also be closely watched because it will be the first time the Court will apply the purely historical framework for Second Amendment challenges to gun regulations announced in NY State Rifle & Pistol Association v. Bruen (2022);

• McElrath v. Georgia (No. 22-721), which will consider whether the Double Jeopardy clause prohibits prosecution for a crime the defendant was previously acquitted of in a complicated factual scenario where the defendant’s conviction of a different crime was vacated on appeal because the jury’s split verdict was fatally inconsistent;

• And Harrington v. Purdue Pharma L.P. (No. 23-124), where the Court will review a Second Circuit decision upholding Purdue Pharma’s bankruptcy plan, which released potential claims against third parties—namely, the Sackler family—in exchange for the Sacklers contributing billions of dollars to help settle opioid-related lawsuits against Purdue.

For our regular readers, we’ll be back in the next few weeks once the Court begins to issue its decisions on some of this term’s cases. If you’re not already a subscriber and this brief preview has piqued your interest, you can sign up for our updates here.

Happy OT23!