Justices grant review in 14 new cases but don’t act on hot-button issues


Posted Fri, January 8th, 2021 9:19 pm by Amy Howe

The Supreme Court took a big step on Friday night toward filling up its merits docket for the rest of the 2020-21 term, granting review in 14 new cases for a total of 12 hours of argument. The justices will weigh in on the First Amendment rights of students and charitable organizations, as well as sentencing reductions for inmates serving time for small amounts of crack cocaine. Perhaps just as notably, the justices did not act on several high-profile petitions that they considered at Friday’s conference, involving (among other things) abortion, a dispute over the Pennsylvania Supreme Court’s extension of the deadline for absentee ballots for the 2020 election, and the right to sue the president under the Constitution’s emoluments clause.

In Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra, which the court consolidated for one hour of argument, the justices will hear a pair of challenges to a policy of the California attorney general’s office that requires charities to disclose the names and addresses of their major donors. A pair of conservative advocacy groups went to federal court, arguing that the policy violates the First Amendment, but the U.S. Court of Appeals for the 9th Circuit ruled for the attorney general’s office. The groups then came to the Supreme Court, which asked the federal government for its views last year. The government urged the justices to grant review, which they did on Friday.

With their announcement that they had granted review in Mahanoy Area School District v. B.L., the justices returned to the often-complicated question of student speech rights. Over 50 years ago, in Tinker v. Des Moines Independent Community School District, the Supreme Court ruled that although students have First Amendment rights while they are at school, school officials can regulate speech that would substantially disrupt the school’s work. On Friday the justices agreed to decide whether their decision in Tinker applies to student speech that occurs off campus. The question comes to the court in the case of a Pennsylvania student who was removed from her high school’s junior varsity cheerleading team when, after failing to make the varsity team, she posted offensive Snapchat messages. The U.S. Court of Appeals for the 3rd Circuit ruled for the student, holding that Tinker does not allow schools to punish off-campus speech. The school district asked the Supreme Court to weigh in, which it agreed to do on Friday.

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive. The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation.
  • Sanchez v. Wolf: Whether an immigrant who entered the country without proper authorization but receives “temporary protected status,” which allows people from countries suffering from humanitarian crises to live and work temporarily in the United States, can become a lawful permanent resident.
  • City of San Antonio v. Whether district courts lack the discretion to deny or reduce an award of costs following a successful appeal.
  • Guam v. United States: Whether Guam or the United States will bear financial responsibility for clean-up of a hazardous waste site created by the Navy on the island of Guam.
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction.
  • Minerva Surgical v. Hologic, Inc.: Whether a defendant in a patent infringement action who assigned the patent may have a defense of invalidity heard on the merits.
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.
  • Hollyfrontier Cheyenne Refining v. Renewable Fuels Association: Whether a small refinery can qualify for a hardship exemption from the renewable fuel standard program in the Clean Air Act if it has not received continuous prior extensions of the initial exemption.
  • Mnuchin v. Confederated Tribes & Alaska Native Village Corp. v. Confederated Tribes: Whether Alaska Native corporations are “Indian tribes” eligible to receive federal COVID relief money.

The justices are scheduled to issue more orders from Friday’s conference on Monday at 9:30 a.m. The justices could act then on some of the other high-profile petitions that they considered on Friday, including Dobbs v. Jackson Women’s Health Org., the challenge to a Mississippi law that generally bans abortions after 15 weeks of pregnancy; Calvary Chapel Dayton Valley v. Sisolak, a Nevada church’s challenge to the constitutionality of the state’s COVID stay-at-home orders; Scarnati v. Pennsylvania Democratic Party & Republican Party of Pennsylvania v. Boockvar, the dispute over the Pennsylvania Supreme Court’s extension of the mail-in ballot deadline for the November 2020 election; and United States v. Tsarnaev, the federal government’s petition to review the case of Boston Marathon bomber Dzhokhar Tsarnaev, whose death sentences the 1st Circuit vacated.

The justices also did not act on a petition by President Donald Trump, who has asked them to decide whether Trump violates the First Amendment when he blocks people from his personal Twitter account because of their views. Right around the same time that the justices issued their orders on Friday, however, Twitter announced that it had permanently suspended Trump from Twitter because of the risk of “further incitement of violence.” In a statement on Friday night, Jameel Jaffer, the lead attorney for those blocked by the president, argued that Twitter’s decision “effectively moots” Trump’s petition for review.

This article was originally published at Howe on the Court.

Posted in Featured, Merits Cases

Recommended Citation: Amy Howe, Justices grant review in 14 new cases but don’t act on hot-button issues, SCOTUSblog (Jan. 8, 2021, 9:19 PM),

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