Litigation
U.S. Supreme Court – October Term 2021 Cases Argued to Date
This chart summarizes the cases on the Supreme Court’s docket for October Term 2021 that were heard in 2021, organized by oral argument date. Eight arguments were heard in October, thirteen in November, and six in December. Two opinions were published by the Court on December 10, 2021. A majority of the cases were civil cases, though the Court also heard a few criminal cases and an immigration case. The links to the case dockets are linked below and can be found on the Supreme Court website at: https://www.supremecourt.gov/docket/docket.aspx. This chart will be updated in our next quarterly report to include cases heard in that quarter and updates on the Court’s opinions.
| Case | Type of Law | Court Below | Question(s) Presented | Oral Argument Date | Docket Link | Opinion (if any) |
| William Dale Wooden v. United States, No. 20-5279 | Criminal | Sixth Circuit Court of Appeals | Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). | October 4, 2021 | Link | TBD |
| Mike Brown, Acting Warden v. Ervine Davenport, No. 201-826 | Criminal | Sixth Circuit Court of Appeals | Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1). | October 5, 2021 | Link | TBD |
| Darrell Hemphill v. New York, No. 20-637 | Criminal | New York Court of Appeals | Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause. | October 5, 2021 | Link | TBD |
| United States v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al., No. 20-827 | Civil | Ninth Circuit Court of Appeals | Whether the Ninth Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities. | October 6, 2021 | Link | TBD |
| Daniel Cameron, Attorney General of Kentucky v. EMU Women’s Surgincal Center, P.S.C., et al., No. 20-601 | Civil | Sixth Circuit Court of Appeals | Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law. | October 12, 2021 | Link | TBD |
| Larry Thompson v. Pagiel Clark, et al., No. 20-659 | Criminal | Second Circuit Court of Appeals | Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the Eleventh Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the Second Circuit decided in Lanning v. City of Glens Falls. | October 12, 2021 | Link | TBD |
| United States v. Dzhokhar A. Tsarnaev, No. 20-443 | Criminal | First Circuit Court of Appeals | (1) Whether the First Circuit erred in concluding that Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case. (2) Whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted. | October 13, 2021 | Link | TBD |
| David Bryon Babcock v. Kilolo Kijakazi, Acting Commissioner of Social Security, No. 20-480 | Civil | Sixth Circuit Court of Appeals | Whether a civil service pension received for federal civilian employment as a “military technician (dual status)” is “a payment based wholly on service as a member of a uniformed service” for the purposes of the Social Security Act’s windfall elimination provision, 42 U.S.C. § 415(a)(7)(A)(III). | October 13, 2021 | Link | TBD |
| Whole Woman’s Health, et al. v. Austin Reeve Jackson, Judge, District Court of Texas, 114th District, et al., No. 21-463 | Civil | Fifth Circuit Court of Appeals | Whether petitioners can pursue a pre-enforcement challenge to Texas SB 8 — the Texas Heartbeat Act, which bans abortions if the physician detects a fetal heartbeat and allows private citizens to sue anyone who assists in providing an abortion that is prohibited by the law — and whether the Court should issue an injunction (pending appeal and disposition of a petition for certiorari) to prevent enforcement of Texas SB 8. | November 1, 2021 | Link | December 10, 2021 Opinion by Justice Gorsuch: A pre-enforcement challenge to Texas SB 8 may proceed past the motion to dismiss stage against certain of the named defendants but not others. |
| United States v. Texas, et al., No. 21-5588 (21A85) | Civil | Fifth Circuit Court of Appeals | Whether the Court should vacate the Fifth Circuit’s stay of the district court’s preliminary injunction that blocked enforcement of Texas SB 8. | November 1, 2021 | Link | December 10, 2021 Opinion per curiam: dismissed the writ of certiorari as improvidently granted and denied the application to vacate the stay. |
| Houston Community College System v. David Buren Wilson, No. 20-804 | Civil | Fifth Circuit Court of Appeals | Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech. | November 2, 2021 | Link | TBD |
| Denise A. Badgerow v. Greg Walters, et al., No. 20-1143 | Civil | Fifth Circuit Court of Appeals | Whether federal courts have subject-matter jurisdiction to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act when the only basis for jurisdiction is that the underlying dispute involved a federal question. | November 2, 2021 | Link | TBD |
| New York State Rifle & Pistol Association, Inc., et al. v. Kevin P. Bruen, in His Official Capacity as Superintendent of New York State Police, et al., No. 20-843 | Civil | Second Circuit Court of Appeals | Whether the state of New York’s denial of petitioners’ applications for concealed-carry handgun licenses for self-defense violated the Second Amendment. | November 3, 2021 | Link | TBD |
| Federal Bureau of Investigation, et al. v. Yassir Fazaga, et al., No. 20-828 | Civil | Ninth Circuit Court of Appeals | Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence. | November 8, 2021 | Link | TBD |
| Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., No. 20-915 | Civil | Ninth Circuit Court of Appeals | Whether 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration. | November 8, 2021 | Link | TBD |
| United States v. Jose Luis Valleo-Madero, No. 20-303 | Civil | First Circuit Court of Appeals | Whether Congress violated the equal-protection component of the Due Process Clause of the Fifth Amendment by establishing Supplemental Security Income — a program that provides benefits to needy aged, blind and disabled individuals — in the 50 states, the District of Columbia, and in the Northern Mariana Islands, but not in Puerto Rico. | November 9, 2021 | Link | TBD |
| John H. Ramirez v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al., No. 21-5592 | Civil | Fifth Circuit Court of Appeals | Whether Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying hands on the parishioner as he dies, sing, pray, or read scripture violated the Free Exercise Clause of the First Amendment or the Religious Land Use and Institutionalized Persons Act (RLUIPA). | November 9, 2021 | Link | TBD |
| City of Austin, Texas v. Reagan National Advertising of Austin, LLC, et al., No. 20-1029 | Civil | Fifth Circuit Court of Appeals | Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert. | November 10, 2021 | Link | TBD |
| Xavier Becerra, Secretary of Health and Human Services v. Empire Health Foundation, for Valley Hospital Medical Center, No. 20-1312 | Civil | Ninth Circuit Court of Appeals | Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the Department of Health and Human Services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days. | November 29, 2021 | Link | TBD |
| Jane Cummings v. Premier Rehab Keller, P.L.L.C., No. 20-219 | Civil | Fifth Circuit Court of Appeals | Whether the compensatory damages available under Title VI of the Civil Rights Act of 1964 and the statutes that incorporate its remedies for victims of discrimination, such as the Rehabilitation Act and the Affordable Care Act, include compensation for emotional distress. | November 30, 2021 | Link | TBD |
| American Hospital Association, et al. v. Xavier Becerra, Secretary of Health and Human Services, et al., No. 20-1114 | Civil | D.C. Circuit Court of Appeals | (1) Whether deference under Chevron U.S.A. v. Natural Resources Defense Council permits the Department of Health and Human Services to set reimbursement rates based on acquisition cost and vary such rates by hospital group if it has not collected adequate hospital acquisition cost survey data. (2) Whether petitioners’ suit challenging the Department’s adjustments is precluded by 42 U.S.C. § 1395l(t)(12). | November 30, 2021 | Link | TBD |
| Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al., No. 19-1392 | Civil | Fifth Circuit Court of Appeals | Whether all pre-viability prohibitions on elective abortions are unconstitutional. | December 1, 2021 | Link | TBD |
| Pankajkumar S. Patel, et al. v. Merrick B. Garland, Attorney General, No. 20-979 | Immigration | Eleventh Circuit Court of Appeals | Whether 8 U.S.C. § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief from removal. | December 6, 2021 | Link | TBD |
| April Hughes, et al. v. Northwestern University, et al., No. 19-1401 | Civil | Seventh Circuit Court of Appeals | Whether allegations that a defined-contribution retirement plan paid or charged its participants fees that substantially exceeded fees for alternative available investment products or services are sufficient to state a claim against plan fiduciaries for breach of the duty of prudence under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1104(a)(1)(B). | December 6, 2021 | Link | TBD |
| United States v. Justin Eugene Taylor, No. 20-1459 | Criminal | Fourth Circuit Court of Appeals | Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). | December 7, 2021 | Link | TBD |
| David Carson, as Parent and Next Friend of O. C., et al. v. A. Pender Makin, No. 20-1088 | Civil | First Circuit Court of Appeals | Whether a state violates the Religion Clauses or Equal Protection Clause by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction. | December 8, 2021 | Link | TBD |
| David Shinn, Director, Arizona Department of Corrections, Rehabilitation and Reentry v. David Martinez Ramirez, No. 20-1009 | Criminal | Ninth Circuit Court of Appeals | Whether application of the equitable rule the Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e)(2) — which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court — inapplicable to a federal court’s merits review of a claim for habeas relief. | December 8, 2021 | Link | TBD |