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Daniel Negusie was forcibly conscripted into the Eritrean military but refused to fight. After two years’ imprisonment at an Eritrean military camp, he spent four years serving as a guard at the camp, without freedom to leave. His duties included keeping prisoners in the sun and denying them showers and fresh air, but he was verbally reprimanded for sometimes refusing to do so. Eventually, Negusie escaped to the U.S., where an immigration judge denied his application for protection from deportation. The judge held that, under the “persecutor bar” of the Immigration and Nationality Act (“INA”), Negusie’s role in the persecution of others made him ineligible for refugee status, notwithstanding his service as a guard and his probable torture if returned to Eritrea. The Board of Immigration Appeals (“BIA”) and the Fifth Circuit affirmed. On certiorari, Negusie argues that the INA’s persecutor bar is not meant to apply to individuals who involuntarily took part in the persecution of others. Attorney General Mukasey responds that the bar contains no voluntariness requirement, and that the Court should defer to the BIA’s interpretation of the INA. The Court’s decision could affect the international community’s approach to human rights; it will clarify whether the U.S. Attorney General has discretion to consider an individual’s degree of moral culpability before granting or denying him refuge, or deciding to deport him to a country where he faces danger, which is considered a violation of core human rights principles.

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In this case, the Supreme Court will decide whether an Indian reservation can be diminished through events occurring after the sale of land to non-Indian settlers despite an absence of clear congressional intent to diminish the reservation. See Brief for Petitioners, Nebraska, et al., at i. In 1882, Congress passed a statute (“Act of 1882”) to sell a portion of the Omaha Indian Tribe’s (“Omaha Tribe”) reservation in Nebraska. See Brief for Petitioners at 9. Since the enactment of the Act of 1882, it has been unclear whether the portion sold still belongs to the Omaha Tribe’s reservation or if the reservation was diminished. See id. Petitioners (“Nebraska”) argue that de facto diminishment has occurred because the Omaha Tribe has declined to exercise their jurisdiction over the land and the land has lost its Indian character. See Brief for Petitioners at 24–26. The Omaha Tribe denies that the land has lost its Indian character and argues that jurisdiction over the land was never abandoned. See Brief for Respondents at 7. Significantly, the Omaha Tribe argues that neither the statutory language nor legislative history of the Act of 1882 supports the inference that Congress intended to diminish the reservation by selling the land. See id. at 10.

The Court’s decision in this case will implicate the reading of Solem v. Bartlett, which articulated a three-part analysis to evaluate when diminishment of an Indian reservation has occurred: (1) the statutory language used to sell Indian land; (2) events surrounding the passage of the sale of Indian land; and (3) events occurring after the sale of Indian land. See Brief for Petitioners at 21. 

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The dispute in this case centers on the failure of the Communications Act to expressly mention or classify cable modem service under one of three terms of the statute itself:  telecommunications, telecommunications service or information service. Where telecommunication services are subject to Title II regulations under the Communications Act, classification as an information service does not incur Title II regulatory obligations and is subject only to discretionary Title I regulation by the FCC.  Where Title I regulations are more lenient given their discretionary nature, Title II regulations impose liability for discriminatory, unreasonable or unjust rates on common carriers.

Although the FCC interpreted the statutory terms and addressed the issue of classification concerning traditional Internet service providers in its Universal Service Report to Congress in 1998, it declined to definitively resolve the ambiguity surrounding the regulatory classification of cable operators providing Internet access specifically, citing the developing and evolutionary nature of the broadband industry. In re Federal-State Joint Bd. On Universal Serv., 13 F.C.C.R 11,501 (1998).

Soon after the FCC released its Universal Service Report, the Ninth Circuit addressed the regulatory classification of cable modem service in  AT&T Corp. v. City of Portland, 216 F.3d 871 (2000). The FCC, which participated amicus curiae, suggested that the court address only the specific issue before it -- whether a local government could require a cable franchise to provide unaffiliated Internet Service Providers access to its cable modem -- without deciding whether cable modem service classified as a telecommunications service. Instead, based on its own interpretation of the Communications Act, the court held additionally that cable modem service qualified as bifurcated information and telecommunications service -- an information service to the extent the provider acts as a conventional Internet service provider and as a telecommunications service to the extent the provider offers Internet transmissions over the cable broadband facility.

In a notice of proposed rulemaking in 2000, the FCC initiated proceedings to develop a framework to govern the regulatory classification of cable modem service by way of a notice and comment process, including discussion with consumer advocates and industry representatives. See In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities (Cable Modem NOI) 15 F.C.C.R. 19,287, 19,288 P 2 (2000).  In March 2002, the FCC issued a declaratory ruling defining cable modem service as solely an information service, in opposition to the Ninth Circuit's earlier holding in Portland.  In doing so, it cited the Ninth Circuit's reliance on a "less than comprehensive" case record, the Portland parties' failure to place the question of regulatory classification of cable modem service before the court, and the fact that cable modem service offers subscribers functions more commonly associated with Internet access. More specifically, the FCC based its determination on the grounds that regulatory classification of cable modem service as an information service fulfilled the statutory goals of promoting competition and reducing regulation in order to encourage growth and innovation of broadband services. See Telecommunications Act of 1996.

After various parties petitioned for review of the FCC's decision, the Ninth Circuit was selected by judicial lottery to review the decision. The Ninth Circuit Court of Appeals vacated the FCC's declaratory ruling, holding that stare decisis compelled adherence to the precedent established in Portland.  In its per curiam opinion, the court concluded that Portland foreclosed the FCC's determination that cable modem service is solely an information service with no separate telecommunications service component.  National Cable seeks review of the Ninth Circuit's ruling. It argues that the Ninth Circuit's ruling is inconsistent with Chevron's recognition that, in the face of statutory silence, (specifically in this case the Communications Act's failure to address the regulatory classification of cable modem service) Congress delegates the primary authority to resolve statutory ambiguities to the appropriate regulatory agency and not the courts.  More specifically, National Cable argues that the Ninth Circuit rejected its regulatory classification without evaluating the substance of the agency's decision; with regard to judicial review of the FCC's construction of the Communications Act, the only question for the court should have been whether its determination was based on a permissible construction and the goals of the statute.

On December 3, 2004, The United States Supreme Court granted National Cable's writ of certiorari to decide whether, under the Chevron framework, the FCC is entitled to decide that cable modem service qualified as an information service and whether the court of appeals erred in holding that the FCC had impermissibly concluded that cable modem service was solely an information service under the Communications Act of 1934.

Importance of the case:

With over fifty percent of households in the United States dependent on Internet service, there has been, in recent years, an ever-increasing demand for speedy access.  Cable modem service fulfills this demand.  Currently, "high-speed" cable modem service is available to seventy-five percent of Internet-connected homes, and while only a small percentage actually subscribe to the service, use of the service among residential consumers is steadily increasing.  See Brand X internet services v. FCC, citing U.S. Dept. Of commerce, A Nation Online: How Americans Are Expanding Their Use of the Internet at 2 (Feb. 2002). The implication of the pending Supreme Court decision surrounding the classification of cable modem service as exclusively an information service, a telecommunications service, or a hybrid of both, thus has direct bearing on the relative affordability and availability of the service that consumers can expect. 

At present, in contrast to other "high speed" internet services like DSL (digital subscriber lines), or "dial-up," where multiple Internet service providers are able to compete for the provision of service over the same network, i.e. using the equipment of telephone companies to broadcast Internet service to subscribers, cable modem operators eliminate intermediary transmission facilities by owning and providing the Internet services exclusively and directly, thereby restricting ISP access to cable modem subscribers and narrowing competition.  More importantly, to some extent, cable modem operators maintain independent control over rates as "high-speed" alternatives like DSL remain unavailable to many consumers, particularly those living in rural areas.

Essentially, a Supreme Court ruling that cable modem service be classified as a "telecommunications service" would subject cable modem operators to stricter regulation under the tenets of the Telecommunications Act of 1996 -- requiring them to provide just and reasonable rates and to open their lines to competing ISPs for the purposes of achieving the statutory goals of increased competition in the market, technical innovation and consumer choice.  See Portland at 879.  More importantly for consumers, such a decision would guarantee not only availability of speedy Internet access, but more affordable access as well.

In addition to the effect the ruling will have on consumers, the case is also important in terms of its potential to broaden the scope of Chevron deference.  If the Court rules that the FCC was entitled to revise the definition of cable modem service originally set forth in Portland,then the principles of Chevron would extend to subsequent agency determinations and authorize agencies to essentially serve as a "check" on courts.

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Twenty-eight federal contractors working at the Jet Propulsion Laboratory at the California Institute of Technology sued the National Aeronautics and Space Administration, alleging that NASA’s requirement that employees undergo a National Agency Check with Inquiries investigation violated their right to informational privacy. The contractors specifically alleged that the information sought was overly broad and unrelated to their abilities as employees. The government claimed that the information requested was relevant to the government’s security concerns and that safeguards helped ensure that the information collected was not susceptible to public disclosure. The Ninth Circuit issued a preliminary injunction, finding that the government’s inquiries were not sufficiently tailored to a legitimate government interest. The Supreme Court’s decision will reflect its view on the correct balance between the interest of the government, as an employer, in preventing security risks, and the interest of individuals in protecting personal information.

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Charles Murphy, an inmate at Vandalia Correctional Center in Vandalia, Illinois, was choked, physically struck, and pushed head-first into a metal toilet—after already losing consciousness—by two correctional officers, Robert Smith and Gregory Fulk. Murphy successfully sued both correctional officers and was awarded a monetary judgment; the district court then held that 10% of the judgment would be applied to attorney’s fees pursuant to 42 U.S.C. § 1997e(d)(2). On appeal, the Seventh Circuit affirmed the correctional officers’ liability but reversed the district court’s apportionment of the plaintiff’s attorney’s fees, holding that the text of the statute required that exactly 25% of the judgment be awarded as attorney’s fees. Murphy argues that both the plain text and the legislative history of the statute indicate that courts have discretion when apportioning attorney’s fees. Smith and Fulk counter that the statute’s text and history point to an exact 25% requirement. In addition to legal analysis, the Supreme Court might also consider wisdom of giving district courts discretion in this context, particularly with regard to the impact discretion would have on deterring government officials from violating prisoners’ federal rights and on discouraging frivolous litigation.

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In this case, the Supreme Court will determine what mental state an individual must possess to be guilty of obstructing an IRS investigation. The case arises out of business owner Carlo J. Marinello’s decisions to avoid paying taxes, destroy business records, and pay his employees under the table. The IRS charged Marinello for these business practices, claiming they obstructed the due administration of the Tax Code. Marinello argues, however, that an individual is guilty of obstructing the IRS only if the IRS can show that the individual knew of an ongoing IRS investigation; Marinello analogizes to other criminal statutes and cites court precedent and later statutory amendments to argue that the government’s contrary conclusion is unconstitutional. The government counters that the ordinary meaning of the relevant statutory clause is unambiguous––due administration of the Tax Code includes all IRS duties––and it is therefore unnecessary to draw analogies or look to legislative history to interpret the clause. Marinello claims that if the government prevails, then the IRS could recast innocent tax planning as a felony and give prosecutors impermissibly broad discretion in charging taxpayers with crimes—a claim the government vehemently denies. Thus, the scope of liability for tax crimes is at stake.

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This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. Colorado’s Anti-Discrimination Act (“CADA”) prohibits commercial businesses from denying service to patrons based on protected characteristics, including sexual orientation. Masterpiece Cakeshop and its owner Jack Phillips contend that CADA violates their First Amendment rights to free artistic expression and religious belief. The Colorado Civil Rights Commission (“CCRC”) and Charlie Craig and David Mullins counter that Masterpiece Cakeshop’s First Amendment rights are not at issue, as CADA applies in all cases of commercial discrimination, and that merely invoking such rights should not exempt Petitioner from complying with the anti-discrimination law. The outcome of this case has heavy implications for LGBTQ rights, creative expression, and religious freedom.

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The issue in the case is whether 28 U.S.C. § 1610(g) provides a freestanding exception to attachment immunity or only eliminates Bancec’s presumption of separate status for a foreign state and its instrumentalities, without altering the criteria for overcoming immunity contained in other provisions of § 1610. Section 1610(g) is part of the Foreign Sovereign Immunities Act, under which foreign sovereigns are presumed immune from suits and attachment. Jenny Rubin, a U.S. citizen injured in a Hamas suicide bombing in Jerusalem, argues that § 1610(g) provides a freestanding exception to attachment immunity because an interpretation subjecting § 1610(g) to the other provisions of § 1610 creates unresolvable inconsistencies within the statute and significantly limits the reach of subsection (g). Iran counters that § 1610(g) does not provide a freestanding exception to attachment immunity because subsection (g) can still be given its intended effect even when subjecting it to § 1610’s other provisions. Iran further argues that the clearest interpretation of subsection (g) is that it merely eliminates the Bancec presumption. From a policy perspective, this case is significant because it could improve the ability of terror victim judgment-creditors to collect judgments from a terror-sponsoring sovereign that is refusing to pay, and it will affect uniformity between U.S. and many other nations regarding attachment immunity laws.

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The Court will decide whether § 3702(1) of the Professional and Amateur Sports Protection Act (“PASPA”), which prohibits state authorization of sports gambling, is a lawful preemption of New Jersey’s 2014 law repealing previous state bans on sports gambling or is a violation of the Tenth Amendment anti-commandeering doctrine. The issue was originally presented when the National Collegiate Athletic Association (“NCAA”) sued New Jersey claiming PASPA preempted a 2012 New Jersey law which legalized and regulated sports gambling. There, the Third Circuit held that PASPA did not violate the anti-commandeering doctrine because it did not require states to act. In response, New Jersey enacted a 2014 law which repealed existing state-law bans of sports gambling. The NCAA once again filed suit and the case once again rose through the Third Circuit. Christie claims PASPA’s prohibition of authorization of sports gambling violates the anti-commandeering doctrine because requiring states to maintain prohibitions is just as harmful to federalism as is requiring states to act. The NCAA contends that PASPA is a lawful preemption of state law, and even if § 3702(1)’s prohibition of authorization is unlawful, the rest of PASPA’s provisions should remain in effect. The Court’s decision will determine the scope of the Tenth Amendment and could have significant consequences for the legality of sports gambling nationwide.

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In 2011, Petitioner Timothy Carpenter was arrested on suspicion of participating in a string of armed robberies in and around Detroit. In the course of the investigation, FBI agents acquired transactional records from Carpenter’s cell phone carrier. The government sought this data pursuant to the Stored Communications Act, which allows law enforcement to obtain communications records by demonstrating “specific and articulable facts” that the records are relevant to an ongoing investigation, rather than probable cause that a crime has been committed. The trial court denied Carpenter’s motion to suppress the records, and a jury convicted him of firearms violations and violations of the Hobbs Act. On appeal, Carpenter maintained that the acquisition of his cellular data without a warrant violated his Fourth Amendment rights, but the Sixth Circuit held that such a seizure did not constitute a “search” under the Fourth Amendment. Carpenter now challenges this classification of cell site data, arguing that the seizure of such data does constitute a search, and that the data is distinct from phone and bank records, which have not been afforded Fourth Amendment protection. This case could have significant consequences for the government’s ability to collect data that reveals a cell phone user’s location.  

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