The Biden administration on Monday asked the Supreme Court to temporarily put on hold a portion of two orders issued by federal trial courts in Louisiana and Kentucky that prohibit the Department of Education from enforcing any part of an April 2024 rule implementing Title IX of the Education Amendments of 1972, which bars sex discrimination in education programs that receive federal funding.
The two challenges—originally filed in Louisiana by four states (Louisiana, Mississippi, Montana, and Idaho, along with the Louisiana Department of Education) and in Kentucky by six states (Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia) – focused on three provisions of the April 2024 rule, which target discrimination against transgender people.
The first provision recognizes that Title IX’s ban on sex discrimination includes discrimination based on gender identity. The second provision makes clear that schools violate Title IX when they bar transgender people from using bathrooms and locker rooms consistent with their gender identity. And the third provision defines “hostile-environment harassment” to include harassment based on gender identity.
In June, the Louisiana district court blocked the Department of Education from enforcing any part of the 2024 rule in the four states bringing the challenge. The district court in Kentucky did the same for the six states involved in that challenge. Federal appeals courts in New Orleans and Cincinnati then turned down the federal government’s request to allow it to temporarily enforce all of the rule, with the exception of the latter two provisions targeting discrimination against transgender people – which, the government said, are the source of the injuries that the challengers allege — while its appeals continued.
In a pairof filings
, U.S. Solicitor General Elizabeth Prelogar urged the justices to intervene. She emphasized that the 2024 rule is an “omnibus” regulation that addresses a wide range of issues, unrelated to discrimination against transgender people, that the states have not challenged. Moreover, she added, when it issued the rule, the Department of Education intended each provision to stand alone. The district courts’ orders blocking the enforcement of the entire rule, she contended, therefore sweep too broadly to block “dozens of provisions that” were not before the courts. Such a “blunderbuss approach to preliminary relief,” she maintained, is “both wrong and consequential.”
Challenges to the 2024 rule are also pending elsewhere, including in Texas, Kansas, Alabama, Oklahoma, and Missouri.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:
The Supreme Court on Friday afternoon appointed a former clerk to Justice Samuel Alito (who also served as a clerk to then-Judge Neil Gorsuch on the U.S. Court of Appeals for the 10th Circuit) to defend a ruling by the U.S. Court of Appeals for the 5th Circuit in a pair of cases involving the interpretation of the First Step Act, a 2018 law that — among other things – reduced the mandatory minimum sentences for some drug and gun crimes. The cases have not yet been scheduled for oral argument.
In a brief unsigned order, the justices appointed Michael McGinley, a partner in the Dechert law firm, to brief and argue Hewitt v. United States and Duffey v. United States, in which the court granted review on July 2. Although it agreed with the defendants that the lower court’s interpretation of the First Step Act was “incorrect,” the federal government had nonetheless urged the Supreme Court to deny both cases. It emphasized that the question presented by the two cases was of only “modest importance,” and it noted that Congress was currently considering legislation that would eliminate the need for the court to step in.
But once the justices granted review, and with the federal government declining to defend the 5th Circuit’s decisions, the court appointed McGinley to do so. As law professor Katherine Shaw has documented
, the practice of appointing a lawyer as a “friend of the court” to brief and argue in support of the judgment below happens roughly once every term. The lawyer selected frequently (although not always) is a former clerk for the justice responsible for the judicial circuit from which the case hails.
Before joining Dechert, McGinley served as associate counsel to the president during the Trump administration. It will be his first Supreme Court argument.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Tuesday morning read:
The Supreme Court will hear a challenge to the Biden administration’s efforts to regulate so-called “ghost guns” in the first week of the 2024-25 term in October, followed the next day by an unusual death-penalty case – in which the state’s attorney general supports the condemned man’s efforts to overturn his conviction and sentence. Garland v. VanDerStok and Glossip v. Oklahoma headline the Supreme Court’s October argument calendar
, which was released on Friday morning.
The November argument calendar
, released at the same time, includes cases brought under the Medicare Act, immigration law, and securities fraud laws.
The justices will hear nine arguments over five days in October, followed by seven arguments over five days in November. Although the court was initially slow in granting petitions for review for the 2024-25 term, those numbers mean that the justices will hear more cases in October and November 2024 than they did in the same months in 2023, when they heard six arguments over five days in October and seven arguments over six days in November.
In Garland v. VanDerStok, the justices will consider a challenge to a rule issued by the Bureau of Alcohol, Tobacco, Firearms, & Explosives that regulates “ghost guns” – firearms without serial numbers that almost anyone can assemble from parts, often purchased in a kit. Last year the U.S. Court of Appeals for the 5th Circuit upheld a decision by a federal district judge in Fort Worth, Texas, concluding that the law was inconsistent with federal firearms laws. The Biden administration then came to the Supreme Court, which had already agreed to allow the federal government to enforce the rule while the challenge continued, asking the justices to review the 5th Circuit’s decision. The justices agreed in April to take up the case, which is a statutory question and does not involve the Second Amendment.
And in Glossip v. Oklahoma, the justices will review the case of Richard Glossip, who was convicted and sentenced to death for the 1997 murder of Barry Van Treese, the owner of the Oklahoma City motel where Glossip worked. Glossip asked a state court to set aside his conviction and sentence last year, arguing that he had received new information that the key witness against him had testified falsely about the witness’s mental health. In April 2023, an attorney appointed by the state’s attorney general, Gentner Drummond, to conduct an independent investigation of Glossip’s case concluded that Glossip should receive a new trial, but – even with Drummond’s support – the Oklahoma courts declined to set aside his conviction and sentence.
In May 2023, the Supreme Court agreed to put Glossip’s execution on hold to give them more time to consider his appeals, and in January of this year they agreed to take up his case. The justices appointed Christopher Michel, a former clerk to Chief Justice John Roberts who has argued 10 cases before the court, to defend the state court’s decision to leave Glossip’s conviction and sentence in place.
The October argument schedule
Williams v. Washington (Oct. 7) – Whether exhaustion of state administrative remedies is necessary to bring federal civil rights claims in state court.
Royal Canin U.S.A. v. Wullschleger (Oct. 7) – Whether a plaintiff (here, a dog owner alleging that the designation of specialized dog food as “prescription” dog food is misleading) whose state-court lawsuit has been transferred by the defendants to federal court can seek to have the case sent back to state court by removing all references to federal law.
Garland v. VanDerStok (Oct. 8) – Whether the rule issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulating “ghost guns” is consistent with federal firearms laws.
Lackey v. Stinnie (Oct. 8) – Whether a plaintiff who obtains a preliminary injunction is a “prevailing party” for purposes of receiving an award of attorney’s fees, when there is no final ruling on the merits of the plaintiff’s claim.
Glossip v. Oklahoma (Oct. 9) – Whether Oklahoma violated a defendant’s constitutional rights when prosecutors suppressed evidence that their key witness was under a psychiatrist’s care.
Medical Marijuana v. Horn (Oct. 15) – Whether a commercial truck driver who lost his job after he failed a drug test can bring a claim under federal racketeering laws against the makers of the product that he says was responsible for that failed test.
Bouarfa v. Mayorkas (Oct. 15) – Whether courts can review a decision to revoke approval of a petition for an immigrant visa on the ground that the government had initially misapplied nondiscretionary criteria during the approval process, and when the applicant would have had a right to review of an initial decision denying review of the application.
Bufkin v. McDonough (Oct. 16) – Whether, when federal law instructs the U.S. Court of Appeals for Veterans Claims to “take due account of the” application of the idea that veterans should receive the benefit of the doubt on close issues involving veterans’ law, the Veterans Court is required to review the factual findings of the Veterans Administration for clear error, or whether it must conduct a more thorough review that considers whether the veteran actually received the benefit of the doubt.
San Francisco v. EPA (Oct. 16) – Whether the limitations in the permit issued to San Francisco for its discharges of wastewater into the Pacific Ocean violate the Clean Water Act
The November argument schedule
Wisconsin Bell v. United States ex rel. Heath (Nov. 4) – Whether reimbursement requests submitted to the Federal Communications Commission’s E-rate programs are “claims” under the False Claims Act.
Advocate Christ Medical Center v. Becerra (Nov. 5) – Whether the phrase “entitled … to benefits” means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
E.M.D. Sales v. Carrera (Nov. 5) – What burden of proof applies to an employer arguing that it is exempt from the general requirement, imposed by the Fair Labor Standards Act, to pay employees overtime when they work more than 40 hours per week.
Facebook v. Amalgamated Bank (Nov. 6) – Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that post does not present any known risk of ongoing or future business harm. [Disclosure: My husband, Tom Goldstein, publisher of SCOTUSblog, represented the respondents in the court of appeals.]
Velazquez v. Garland (Nov. 12) – Whether, when the time for a noncitizen to voluntarily leave the country ends on a weekend or holiday, the noncitizen who files a motion to reopen immigration proceedings can avoid penalties for failing to leave the country by filing that motion on the following business day.
Delligatti v. United States (Nov. 12) – Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
Nvidia Corp v. E. Ohman J:or Fonder AB (Nov. 13) — What pleading standards apply to show knowledge or intent for securities-fraud claims that rely on internal company documents.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Monday morning read:
The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
In June, the Supreme Court temporarily blocked
the Environmental Protection Agency from enforcing its Good Neighbor Plan while litigation over the plan continues in the lower courts. This week, we highlight petitions that ask the court to consider, among other things, whether ongoing disputes over the EPA’s air-pollution rules can only be heard in the nation’s capital.
The question comes to the justices under a procedural provision tucked into the Clean Air Act. Congress has divided the country into 13 federal judicial circuits. Generally, parties seeking to challenge an EPA regulation under the act should go to their regional circuit. However, when an air-pollution regulation is national in scope, the act instructs challengers to proceed instead to the U.S. Court of Appeals for the District of Columbia Circuit.
A series of petitions ask the justices for guidance on this rule, known as a venue provision.
One set of petitions arises from the ongoing dispute over the act’s Good Neighbor rule. In addition to issuing its own nationwide Good Neighbor Plan, the EPA rejected the proposals of 21 states to comply with the rule’s limits on the spread of pollution from “upwind” to “downwind” states. The justices’ 5-4 decision pausing the EPA’s plan this past June came in response to a request from Ohio, Indiana, and West Virginia — as well as a host of power companies — to delay the plan’s enforcement on an emergency basis.
Under the venue provision, those challenges were filed in the D.C. Circuit. But other states with Republican attorneys general had also gone to court to contest the EPA’s rejection of their own Good Neighbor plans. Two of those states, Oklahoma and Utah, went to their regional circuit, the U.S. Court of Appeals for the 10th Circuit.
The 10th Circuit granted the EPA’s motion to transfer the case to the D.C. Circuit. The court of appeals rejected Oklahoma and Utah’s argument that their challenges should remain in the 10th Circuit because each centers on the EPA’s denial of approval for their individual proposed plans, which in turn rested on facts specific to their states. Instead, the the 10th Circuit agreed with the government that the agency action at the center of the dispute was a “nationally applicable final rule” – challenges to which are assigned by law to the D.C. Circuit.
A second dispute arising from the venue provision involves the Renewable Fuel Standard, a longtime program under the Clean Air Act that requires oil refineries to blend a certain threshold of ethanol and other biofuels into their gasoline or purchase “credits” to offset excess fossil-fuel emissions. When the EPA denied, in one stroke, a slate of requests for exemptions from the standard filed by dozens of refineries nationwide, six of them sought review in the U.S. Court of Appeals for the 5th Circuit, which covers Texas, Louisiana, and Mississippi.
In contrast with the 10th Circuit, the 5th Circuit ruled that it was the appropriate venue for the refineries’ challenge. The court of appeals agreed with the refineries that the EPA’s denial of exemptions from the biofuel standard was a “local or regionally applicable” action, rather than a nationally applicable one. Rejecting the government’s position that the challenged agency rule constrained refineries across the country, the 5th Circuit refused to transfer the dispute to the D.C. Circuit.
In Oklahoma v. Environmental Protection Agency
and Environmental Protection Agency v. Calumet Shreveport Refining
, the states and federal government ask the justices to weigh in on the operation of the Clean Air Act’s venue provision. Oklahoma and Utah argue that the 10th Circuit diverged from the majority of its sister circuits, which had agreed to keep possession of various challenges regarding the states’ Good Neighbor plans.
The EPA suggests that the justices should not weigh in on the Good Neighbor dispute at all, but instead to hold those petitions while they consider the venue question in the Renewable Fuel Standards litigation.
Adding to these requests, several oil, biofuel, and electric companies have filed their ownpetitions
, in both disputes, asking the justices to resolve the venue debate once and for all.
A list of this week’s featured petitions is below:
Oklahoma v. Environmental Protection Agency
23-1067 Issue: Whether a final action by the Environmental Protection Agency taken pursuant to its Clean Air Act
authority with respect to a single state or region may be challenged only in the U.S. Court of Appeals for the District of Columbia Circuit because the agency published the action in the same Federal Register notice as actions affecting other states or regions and claimed to use a consistent analysis for all states.
Bahlul v. United States
23-1072 Issues: (1) Whether 28 U.S.C. § 455(b)(3)
requires recusal when a federal judge is assigned to a case involving the same parties, same facts, and same issues as a case in which they previously appeared as counsel for the government; and (2) whether Section 455(b)(3) provides the exclusive basis for federal judges’ disqualification based upon their previous government service, or whether recusal is still independently warranted under Section 455(a), where a judge’s previous government service gives rise to reasonable questions about their impartiality.
Hile v. Michigan
23-1084 Issues: (1) Whether Michigan’s constitutional amendment barring direct and indirect public financial support for parochial and other nonpublic schools violates the 14th Amendment’s equal protection clause; and (2) whether the failure of a ballot proposal that would have authorized school vouchers and partially repealed the constitutional amendment purges the amendment of its religious animus for purpose of the equal protection clause.
Environmental Protection Agency v. Calumet Shreveport Refining, LLC
23-1229 Issue: Whether venue for challenges by small oil refineries seeking exemptions from the requirements of the Clean Air Act
’s Renewable Fuel Standard program lies exclusively in the U.S. Court of Appeals for the District of Columbia Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.”
Correction (July 18 at 11:34 a.m.): This article has been updated to clarify the relationship among ongoing challenges under the Clean Air Act’s Good Neighbor rule.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:
