By Linda C. Ashar, J.D.
Faculty Member, School of Business, American Public University

More than 230 years of history bind the U.S. Supreme Court to its constitutional history and duties to the citizenry. The core of the Court’s powers reside in Article III of the U.S. Constitution and the Judiciary Act of 1789. But its true expansion of powers was developed through a series of cases during the early decades of the nation.

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Most notable in the Court’s early settling of its power as the third co-equal branch of government came under Chief Justice John Marshall, whose appointment President John Adams called the “proudest act of my life.” In Marbury v. Madison (1803), one of the most famous of Justice Marshal’s opinions which is still studied today, the Court settled its power of judicial review to declare a law unconstitutional.

Over the years, the total number of justices comprising the Court would change six times. The present count of nine was established in 1869.

The Court convenes for its annual term on the first Monday in October after being in recess from late June or early July. This month, the Court announced the docket of cases it will be hearing in argument. The following six Supreme Court cases are the controversies on which the legal and social issues of importance to the country will hang in the balance over the ensuing months.

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Case #1: Constitutionality of the Affordable Care Act

California v. Texas, Case No. 19-840 (cases consolidated)

One of the most headlined cases of the October 2020 term is the petition of several states, led by Texas, to have the Affordable Care Act (ACA) declared unconstitutional. Other states, led by California, seek to have the ACA’s constitutionality affirmed. California v. Texas is scheduled for oral argument on November 10, 2020.

The main point here is a Texas U.S. district court’s declaration, affirmed by the Fifth Circuit, that the ACA’s requirement of the “individual mandate” of coverage is unconstitutional. Rather than striking down just that provision as unconstitutional, the argument is the entire ACA must be out the window.

In 2012, the U.S. Supreme Court declined to rule the ACA unconstitutional because the individual mandate carried a tax penalty for those who did not buy insurance. In 2019, Congress effectively removed the penalty by reducing it to zero.

This action started the technicality of constitutionality all over again. The argument goes that if it was constitutional because of the tax, then it cannot be constitutional without the tax. Millions of dollars, the health care of millions of people, and years of political and legal wrangling hang and twist on how the Supreme Court will parse this syllogism.

While this case is without question of great magnitude, considering the parties and its implications, among the Court’s docket this term are five other interesting cases to watch for 2020-21.

Case #2: Inter-Branch Disclosure of Records of Public Interest

Dept. of Justice v. House Comm. of the Judiciary, Case No. 19-1328

The issue before the Supreme Court is whether a legislative impeachment trial is a judicial proceeding in which secret grand jury materials can be disclosed under the Federal Rules of Criminal Procedure.

This is of constitutional importance because Congress, the legislative branch, is seeking Grand Jury materials from Robert Mueller’s investigation of Russian interference in the 2016 election. The lower courts held the documents should be disclosed.

The Executive Branch, through the Justice Department, is seeking to prevent their disclosure. The determination of a “judicial proceeding” definition – a Judicial Branch procedure — for this purpose, is an important point not only for this case, but for future congressional proceedings.

Case #3: Criminal Use of Your Own Computer

Van Buren v. United States, Case No. 19-783

The issue before the Supreme Court is whether a person authorized to access computer files for a certain purpose commits a criminal act under The Computer Fraud and Abuse Act, 18 U.S.C. §1030 (CFAA), if he accesses the same files for an unauthorized purpose.

The CFAA was born out of a concern for hackers. The law evolved into covering fraud activities in unauthorized access to computers and computer systems.

But the core question in this case is the scope of “unauthorized” and how far that concept stretches criminally under CFAA for a specific computer use that is not within the scope of otherwise authorized access. Where is the line, especially in a government sting operation?  (The questions in oral argument should prove especially interesting.) 

Case #4: US Jurisdiction and International Human Rights

Germany v. Phillip, Case No. 19-351

The issue before the Supreme Court in this case is whether the “expropriations exception” of the Foreign Sovereign Immunities Act gives U.S. courts jurisdiction over property appropriated by a foreign country of its own national within its borders, even in cases where the foreign country has a domestic system in place to address issues of international significance. In simple terms, the question is an alleged taking of property by the foreign sovereign – in this case Germany – in violation of international law involving human rights.

The legal jurisdictional issues in play in this case are somewhat arcane, but nonetheless of great interest. They arise from facts and issues swirling around a compelling documentary of art history, political intrigue, lost family and echoes of the Holocaust.

In 1929, a consortium of German Jewish art dealers in Germany acquired a valuable medieval art collection referred to as the Guelph Treasure, or Welfenschatz. Due to the Great Depression of the times, thereafter they were unable to sell this acquisition.

In 1935, the Dresdner Bank, representing the state of Prussia, approached the dealers to buy the collection. They eventually negotiated a sale for a fraction of the collection’s original purchase price.

Over the many decades since, pieces of the collection traversed Europe and the U.S. and now reside in Germany, owned by an organization with worldwide connections. The present claim on the art arises from the dealers’ heirs tracing the story of the collection and asserting the 1935 sale was a forced acquisition – a taking — as part of the Nazis’ organized, systematic disenfranchisement of Jews in the Holocaust.

It is the expropriation with alleged violation of human rights under international law that brought the case into U.S. courts. The lower U.S. courts agreed to assume jurisdiction. The Supreme Court has agreed to decide if they are right.

Case #5: Defining Fourth Amendment Seizure of the Person

Torres v. Madrid, Case No. 19-292

In this case the Supreme Court will consider whether the unsuccessful use of lethal force to detain a person, such as shooting and wounding a suspect in flight, constitutes a “seizure” within the meaning of the U.S. Constitution’s Fourth Amendment.

A governmental “seizure” of a person under the Fourth Amendment is an arrest under force of law, for which constitutional rights of the individual attach. In a prior case, California v. Hodari D., the Supreme Court stated that “an arrest is effected by the slightest application of physical force despite the arrestee’s escape.”

What constitutes sufficient “physical force,” then? Roxanne Torres was driving away from pursuing police officers when they shot her several times, wounding her severely. She managed to continue on, but ultimately, due to her injuries, she was airlifted to a hospital where she was arrested the next day. Her claim against the officers is violation of the Fourth Amendment for unreasonable seizure in the shooting.

Case #6: First Amendment Religious Free Exercise Versus Government Recognition of Same-Sex Marriage

Fulton v. City of Philadelphia, Case No. 19-123

The Petitioners present three related legal issues to the Court in this case, which essentially boil down to whether a person’s or an agency’s First Amendment religious free exercise right is violated when the city excludes that person or agency from participation in a foster care system for refusing foster placement with same-sex couples on religious grounds. Also, there is a broader agenda involved, according to the Brief of Petitioners in this case, which invites the Court to roll back the Supreme Court’s previous recognition of same-sex marriage in Obergefell v. Hodges.

Recordings of Supreme Court Oral Arguments Are Available Every Friday

All cases before the U.S. Supreme Court are important, of course, and some perhaps may be more controversial than others. Pundits will speculate about the Court’s perceived leanings on the issues, while attorneys prepare their arguments. In some cases, people’s lives will hang in the balance. Decisions following oral arguments are not expected until the spring of 2021, at least.

You can listen to the oral arguments in the U.S. Supreme Court. The audio recordings of all oral arguments heard by the Supreme Court are available to the public at the end of each argument week and are posted on Fridays after Conference.

About the Author

Linda C. Ashar is a full-time Associate Professor in the School of Business, American Public University, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes employment law and litigation on behalf of employers and employees.