What Cases Are Missing From Upcoming SCOTUS Docket?

term on the first Monday in October. The past term was a momentous one for the Court, with major decisions on lgbt Q rights, presidential powers, abortion rights, religious liberties, data and federal agencies, and several controversial cases are already on the docket for the term, cases involving Obamacare, religious liberties, intellectual property, and challenges to the FTC Fannie Mae and Freddie mac. Perhaps justice revealing is what's not on the docket.

There are no cases on the Second Amendment or abortion rights. Joining me to take a look ahead is Bloomberg News Supreme Court reporter Greg Store. The Court has posted the cases it's going here in October, and some of them look familiar, because there should we call them leftovers from last term. What stands out to you in those cases? Yeah,

that's a good way of describing it. These are all the cases that were scheduled for argument last term but didn't actually get argued because of the coronavirus outbreak, and said they got kicked over to this term. Probably the biggest one, certainly the biggest one from a business standpoint, is this copyright fight between Google and Oracle. Oracle says that Google has systematically infringed on its copyrights in creating

the Android system for mobile phones. Oracle says it is owed something like nine billion with a B dollars from Google. Google says it has done nothing wrong. That's a real fight over what the rules are going to be in the tech industry going forward. Does this mean that a case that promise is to be controversial on a topic the Court is quite familiar with by now, the Obamacare case will not be heard until November at the earliest. Yeah,

that's right. And the November sitting of the Court starts the day before election day, so there's a very good chance it won't happen until after election day. This is the case where Republican leeds states sued trying to overturn the entirety of Obamacare. The argument is that back when the Supreme Court upheld it in twelve, they upheld the individual mandate, which is the thing that says people have to acquire insurance. The court upheld that as a tax

because Congress attached tax penalty to not have an insurance. Well, Republican led Congress and the Trump administration eliminated that tax penalty, and so the argument is now that the individual mandate is unconstitutional, and the Republican led States, with the support of the Trump administration, are also arguing that the entire law have to be thrown out. The court has had Obamacare before it twice before, so why take up Obamacare for a third time. They're taking it up because there

is now uncertainty about the state of the law. It was actually the Democratic led states or defending the law who urged the court to take it up. Federal District judge said the law was unconstitutional, and Federal Appeals Court said, we're not deciding whether the whole thing is unconstitutional, but at least this individual mandate is now unconstitutional, and maybe the rest of it. So there is great uncertainty about

the state of it right now. And it seems as though when you have states on both sides and an issue that is clearly so important to get resolved. The Supreme Court felt, life, we just need to make a decision. If Trump does not win the election in November, and if the case hasn't been heard by that time, is there a possibility that it will go away. There's certainly a possibility it will change very significantly. And yet I

could see a possibility it would go away. The Trump administration is involved in the case, but they didn't bring the lawsuits. There would still be a lawsuit filed by these Republican led states trying to invalidate the law. But the premise of the suit is that there is no longer a tax penalty attached to the requirements that you

acquire insurance. One could imagine a world in which a Democratic controlled Congress and a Democratic president decide we're going to reinstate the tax penalty, maybe even just a nominal tax penalty, and suddenly that legal argument goes away. Now, whether that would make the case technically moot in the Supreme Court would feel like they needed to drop it, I'm not, but certainly there's a possibility that the complexion

of the case would change very, very dramatically. Religious liberties were enhanced in three cases at the Court this term, and a case next term which promises to be controversial, involves religious liberties, gay rights, and foster care. This is a very big religious liberties case, in part because it's asking the Court to overturn important precedent from thirty years ago. The case is about a Catholic social services agency in

Philadelphia that helps place foster kits. They screen out perspective foster parents, and this organization says, we don't work with same sex couples. We have a religious objection to that, and the city of said, okay, then you can't take part in this program. And the question is whether that violates the Constitution In the free exercise cause of the

First Amendment. There is a decision from written by Justice Scalia that is being challenged, and it's a decision that said, if a state has a neutral, generally applicable law, and if it happens to have an impact on a religious practice, that is not a violation of the Constitution. In this case takes direct game that and may significantly expand constitutional religious liberties. Me next, why no case is on the

Second Amendment or abortion issues. This is Bloomberg. The first case we all argue today is Case nineteen seven fifteen Donald Trump versus Major's USA. There may not be a case that draws as much attention as the Trump subpoena cases in the upcoming Supreme Court term, but there will certainly be defining cases and perhaps even decisions that overturned precedent.

I've been talking to Bloomberg Supreme Court reporter Greg Store about the new term, and Greg, we were discussing one of those cases that challenges precedent, a case where religious rights and gay rights seem to collide. And in all three cases last term involving religion, the Court expanded religious liberties with either seven to two or five to four votes. Yes, they certainly have, and not all of those cases were under the guise of the Constitution. There's also a federal

law known as a Religious Freedom Restoration Act. Some of the cases have involved that. The case they got a lot of attention this last term involving the Obamacare contraceptive requirement that was actually primarily a case of about federal administrative law and whether the Trump administration had checked all the boxes in terms of giving a broad religious exemption to employers and universities from that requirement. This will be certainly one of the biggest case that directly deals with

the constitutional free exercise clause. So now is this Facebook's first appearance at the Court in a case involving text messages and robocalls? It is remember this last term, they had a case that challenged the federal ban on robocalls to mobile phones, and the Supreme Court upheld that law, and the Facebook case was sort of waiting in the

wings for the Court to resolve that. And what it sort of gets into is not the constitutional questions of the earlier case, but kind of the nuts in both questions of what really is a robot call the law. This is a case about somebody who sued Facebook because he got text messages he didn't want, and the question is whether those text messages are covered under the statute, whether therefore he can press a lassity against Facebook, essentially

a class action suit that would involve big money. A little more of a granular case, but certainly something that is of great interest to a lot of people in the tech community. Can we tell where this is going from the robot call case this term, where just about everyone agreed that nobody likes robot calls. I'm not sure we can you know robo calls for the Supreme Court justices, they all understand what those are. This case involves a little more of a question about the mechanism for sending

these text messages. It is, as I said, a question of interpreting this federal statute and not so much the Constitution. So I'm not ready to say that I have any strong views on how this case is likely to come out of based on what we saw in this last term. Now, another case that seems a lot like a case this

term on the SEC involves the FTC. Right. In the last term, we had a case involving the Securities and Exchange Commissions so called disgorgement power, that is, its ability to go to court and say, you, the wrongdoer, somebody who violated securities wrong laws have to give back the

money you took. And the Supreme Court trim that power from the SEC essentially said, you really have to make sure you're sending the money back to investors who were defrauded, and you have to focus on the net proceeds that the wrongdoer got, but left the disgorgement power otherwise intact. And so this is to some degree the same case involving the Federal Trade Commission, which also tries to go to court to get money from wrongdoers. The difference is

that it's the completely different statutes. It's a federal statute that governs the FEC that says they have the power to go to court get an injunction. And the question is essentially whether it's an injunction includes an injunction that says you the wrong door have to pay money back. Most federal pills courts pep said yes, the FDC has has that power. There is one that recently said no, it doesn't end that is very likely the Resistreme Court decided to get involved. So then we can't draw any

conclusions from the case involving the SEC. We might be able to get a general leaning that the Court is not looking to do something radical in this area, though it is a question of statutory interpretation. Both cases are also at least to some degree about the traditional powers of courts. So I will at least go into this argument with the idea that the Court might not want to radically cut back on what has been a long established,

a long understood power of the Federal Trade Commission. And there's a case involving a challenge to another federal agency, the Federal Housing Finance Agency and its regulation of Fannie Mae and Freddie Mack and the more than three billion dollars in dividends that have gone into the U. S. Treasury. This has echoes of two cases from last term. Yeah know, I think about it. Half the cases this term are

follow ups from from cases last term. Uh. This one is somewhat connected to the fight over the Consumer Financial Protection Bureau from the last term. The main issue in this case, however, is something that is somewhat different. I'll try to explain it. Under federal law, Fannie Mae and Freddie Mack give the vast majority of their profits to the treasury. They don't go to the shareholders. And this all stems from the bail out of Fannie Main and

Freddie Mac after the financial crisis. And investors are challenging that so called profit sweep, and they have a couple of different arguments for why they think that profit sweep is illegal. And what has seemed to be the main event is the f a f A, the agency that overseas Fanny and Freddy, arguing that under federal law, we are the conservator of Fannie and Freddie, and under federal law, you can't sue over something involving our conservatorship of those

two entities. There's also a second claim in the case that is similar to the one in Consumer Financial Protection Bureau case. The investors argue that the f h f A is unconstitutionally structured because the director is too independent from the president can't be fired by the president for any reason. And they say that because of that unconstitutional structure,

that this profit suite must be thrown out. Back in this last term, the Court entertained a similar claim about the CFPB and said it's unconstitutionally structured, but the only thing we have to do to fix it is to say the president can fire the director for any reason. So it would be a big leap for the Court to say that the remedy for any unconstitutionality about the f h f A is that we would throw out this extremely important provision that lets them collect the profits

of Fannie and Freddie. Greg last term, there was a gun case, a Second Amendment case that turned out to be moot, and Justice Brett Kavanaugh mentioned other cases coming down the pike. Have they taken up any gun cases. They haven't, And it's a bit of a head scratcher, to be honest. Justice Kavanaugh did indicate he's eager to take up a Second Amendment case. Other conservative justices have as well, including Justice Thomas, who has been very outspoken.

But the Court had a Second Amendment case of this current term involving gun transportation restrictions in New York City. But then the city changed its law and the Court dismissed that case. And after that happened, there were all these other cases that have been waiting in the wings, waiting for the Court to resolve the New York case.

And they included an issue that federal pills courts are divided on, which is is there a constitutional right to carry a weapon in public or is it only a right that applies in your home for self defense purposes. Lower courts are split on that. They had a couple of cases that look like really good candidates for them

to take up, and they chose not to. And I think the clearest thing that one can say is there is not a huge appetite on the Court at this very moment for expanding the second amend a mint expanding the rights that are covered by it. And for the time being, no, we do not have a gun rights case on the agenda for next term, and it's not

clear that we're going to. This term. There was an abortion case, and of course there was a lot of controversy surrounding it because of the issue itself and also because of the newly conservative court, and people were wondering whether they would start to cut back on abortion rights. Are there any abortion rights cases on the docket coming up?

There are not be much like with gun rights, The Court at the end of its term said it wasn't going to hear several cases, so it's passed on the chance now in the case of abortion, that may be because it wants the lower courts to digest the ruling that it issued this term. That was one where Chief Justice John Roberts has the keyboat to strike down this Louisian law that required doctors an abortion clinics to get

privileges at a local hospital. The chiefs pointed to the decision four years earlier where the Court had struck down an identical Texas law, and rob said, I disagreed with that decision. But it's the law of the land, and the Louisiana law is is identical. So I'm going to both to strike that down as well. It's possible that that the Chief Justice, because of the language in his opinion, would be willing to uphold a lot of other abortion restrictions.

But at the end of the term, when the Court decided we're not going to take these other cases, that did sort of send a little bit of a message that maybe he is not especially eager to take up another abortion case every time. Soon, finally, the Court is going to consider new curbs on human rights lawsuits in a case involving child slavery on coco farms on the Ivory Coast. Yeah, this is a type of issue the

Court has has dealt with before. The facts of this case are that ness Lee's US unit and Cargill are both fighting lawsuits that accuse them of complicity and child labor in the Ivory Coast and producing cocoa. Both companies

deny the allegations. But the issue before the Court has to do with this law known as the Alien Torch statutes that they've had several old times before that has been used to press human rights lawsuits over international atrocities, and the Supreme Court, in a series of decisions, have scaled that law back so that it's used less and less.

And one of the questions that was left open from the previous decisions is whether it can be applied against a US corporation as opposed to a foreign corporation that was involved in these overseas atrocities. The Court seemingly is going to answer that question in this case. There are also arguments from the companies that even if the law could be applied to domestic companies, our domestic units were

not involved enough to let the lawsuits go forward. It is an area of law where we've seen the conservatives on the Court slowly but surely chipping away at the alien towards statutes so that it cannot be used because these sorts of lawsuits. Thanks Graig, it sounds like an exciting term to come. That's Bloomberg News Supreme Court Reporter Greg Store and that's it for the sedition of the

Bloomberg Law Show. I'm to Grosso. Thanks so much for listening, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Eastern right here on Bloomberg Radio, h