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Section 401 of the Clean Water Act requires that a facility requiring a federal license, such as a nuclear power plant, must receive state water quality certification when it engages in activities “which may result in any discharge” into lakes and rivers. In this case, the Supreme Court will decide whether water flowing through hydroelectric dams constitutes a “discharge.” Petitioner Warren argues that the mere flow of water through an existing dam does not constitute a discharge on the grounds that the Supreme Court had previously held in the Miccosukee case that the term “discharge” requires an addition of water to the existing flow from a distinct body of water, and thus does not refer to the removal and replacement of water from and to the same body of water. Florida Water Mgmt. Dis. v. Miccosukee Tribe, 541 U.S. 95 (2004). Respondent Maine Board of Environmental Protection and other respondents contend that state water quality certification is required for dams because the definition of discharge used in the Miccosukee case can be distinguished from this case via two main avenues. First, respondents argue that Miccosukee dealt with Section 402 of the Clean Water Act, and is not necessarily binding in this case. Congress’ intent in enacting Section 402, respondents argue, was to regulate pollutants added to the nation’s waters, while Section 401 was aimed at water regulation generally and as such the definition of discharge in Section 401 includes water flowing through dams. Respondents also attempt to distinguish the Miccosukeerequirement of an addition of water to the existing flow of water by interpreting “discharge” under the plain meaning of the term. The definition of “discharge,” respondents claim, includes the Miccosukee requirement, but is not limited by it; hydroelectric dams are thus subject to state regulation because the more expansive plain meaning of “discharge” includes the discharge of water from a dam even without an addition to the flow. The resolution of the conflicting definitions followed by Miccosukee and state environmental protection boards will have far-reaching effects on the profitability and efficiency of hydroelectric dams throughout the nation, energy production generally, and the environment.

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An Arizona jury convicted Ernest Valencia Gonzales of first-degree murder and sentenced him to death in 1991. After exhausting his state court options, Gonzales initiated federal habeas proceedings in 1999. Over the next few years, Gonzales began to display signs of delusion and paranoia, refusing a number of attempted visits from his attorney. The district court denied his attorney’s motion to stay the habeas proceedings pending a competency determination. The Ninth Circuit eventually granted mandamus relief, holding that the capital inmate’s right to counsel in federal habeas proceedings under 18 U.S.C. § 3599(a)(2) implicitly includes a right to be competent to assist one’s counsel. Charles L. Ryan, Director of the Arizona Department of Corrections, appeals the Ninth Circuit’s decision arguing that the circuit court misread 18 U.S.C. § 3599(a)(2) to include a “right to competency” in assisting counsel. Ryan asserts that such a right would allow for indefinite stays of habeas proceedings based on incompetency that contravene Congress’ intent in the Antiterrorism and Effective Death Penalty Act. Gonzales contends that district courts have discretion to issue stays, and that such stays are appropriate where incompetency would deprive the capital inmate of “meaningful” right to counsel. This decision implicates federalism concerns over the finality of state court decisions in capital cases and the proper balance between the rights of victims and the rights of inmates.

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Under the Solomon Amendment, law schools that receive federal funding are forced to provide the same access to career placement services to military recruiters that they provide to other employers. This requirement conflicts with most law schools' policies of non-discrimination that withhold career placement services from employers who exclude employees on the basis of race, gender, religion or sexual orientation. The Forum for Academic and Institutional Rights (“FAIR”) has challenged the Solomon Amendment on two grounds. First, they argue that the Amendment is an unconstitutional condition that infringes their freedom of speech. Second, FAIR argues that law schools are “expressive associations” whose right to free speech and dissemination of a chosen message is impaired by the forced accommodation of military recruiters on campus. The Court of Appeals, in ruling for FAIR, held that the Solomon Amendment unconstitutionally impairs expressive conduct and that the Government has not shown a compelling interest that justifies denying this freedom. The case is significant because it will determine whether, specifically, law schools are able to bar military recruiters from campus without losing federal funding, and, more broadly, whether certain associations may qualify for federal funding but remain constitutionally protected from disseminating a message with which they do not agree.

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Under Maine law, mail-order tobacco product retailers must require their delivery service to verify that the purchaser is not a minor. Delivery services are deemed to know that a package contains tobacco products under certain circumstances. The New Hampshire Motor Transport Association, together with other trade associations representing air and motor carriers of property ("Associations"), have challenged these provisions, arguing that they impinge upon exclusive federal authority over carriers under the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The Attorney General of Maine, G. Steven Rowe ("Attorney General"), responds that Congress did not intend the FAAAA to limit state public health regulations such as tobacco controls. The Court of Appeals for the First Circuit agreed with the Associations and invalidated Maine's law. The Supreme Court's holding in this case likely will clarify the line between federal authority over carriers and state authority over public health matters. If the Attorney General prevails, Maine will be able to continue its strategy of controlling mail-order sales of tobacco products by regulating tobacco product transportation. On the other hand, a victory for the Associations would protect carriers from the potentially costly threat of inconsistent state laws. The health of the economically crucial package carrier industry and the health of minors exposed to tobacco products lie in the balance.

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Upon losing their employment, Richard and Betty Jo Rousey rolled over their pensions and 401(k) accounts into individual retirement accounts (IRAs). The Rouseys had trouble finding new work, which led to their inability to pay their debts. They subsequently filed for Chapter 7 bankruptcy protection in the United States Bankruptcy Court for the Western District of Arkansas. The bankruptcy trustee demanded that the Rouseys' IRAs be turned over to satisfy their debts, but the couple argued that their IRAs were exempt from the bankruptcy proceeding under 11 U.S.C. 522(d)(10)(E). This statute provides that any funds paid under a pension or similar plans or contracts on account of illness, disability, age, length of service or various other conditions may be exempt from the bankruptcy estate. The Bankruptcy Court, the Bankruptcy Appellate Panel, and the U.S. Court of Appeals for the Eighth Circuit have each held that the Rouseys' IRAs are not covered by 11 U.S.C. 522(d)(10)(E) and are thus not exempt from Chapter 7 proceedings.  The Supreme Court granted certiorari to decide whether IRAs are indeed exempt from bankruptcy estates under 11 U.S.C. 522(d)(10)(E).

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In this case, the Supreme Court will decide whether Congress, in passing the Sex Offender Registration Notification Act (“SORNA”), violated the non-delegation doctrine in allowing the Attorney General to define and implement how the Act applies to sex offenders who committed offenses prior to SORNA’s implementation. The United States argues that Congress’s grant of power to the Executive is constitutional if Congress provides a guiding principle explaining SORNA’s general policy and guidelines for its implementation. The United States contends that Congress did provide these requirements when it explained that SORNA requires sex offenders to register “to the maximum extent feasible.” Gundy, however, argues that Congress gave the Executive no direction on how to apply SORNA to sex offenders who committed acts prior to the implementation of SORNA. It contends that Congress granted the Executive unconstrained power to define when and how SORNA applies to these “pre-SORNA” sex offenders. A decision for the United States could promote public safety and ensure a more comprehensive national sex offender registration system. A decision for Gundy could ensure Congress does not overdelegate its authority nor threaten individual liberties.

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The Supreme Court will decide if it is lawful to execute a man who—years after committing murder—developed vascular dementia that affects his ability to understand his surroundings and prevents him from remembering the facts of his crime. Petitioner Vernon Madison contends that a broad range of mental conditions can prohibit defendants from understanding the circumstances of their executions and thus should prevent lawful execution of such defendants. The State of Alabama counters that a defendant’s memory of the murder is irrelevant to the analysis of whether the defendant’s execution is unlawful under the Eighth Amendment. The American Psychological Association and the American Psychiatric Association, in support of Madison call for an expansion of the category of mental disabilities that can render a person incompetent to be lawfully executed and contend that the execution of inmates with dementia would not serve deterrence purposes. However, fourteen states writing in support Alabama distinguish dementia and other age-related disabilities from intellectual disability and add that the retributive aspects of the death penalty are important enough to allow the execution of inmates with dementia and other age-related mental disorders. Accordingly, the Court’s decision will affect defendants who are exempt from execution as well as the litigation strategy of death row inmates as they approach the age of onset for age-related mental disorders during the lengthy appeals process.

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This case asks the Supreme Court to resolve whether the Age Discrimination in Employment Act (“ADEA”) applies to political subdivisions of a state regardless of the subdivision’s number of employees, or whether the ADEA applies only to those political subdivisions of a state that have at least twenty employees for statutorily-required length of time. Mount Lemmon Fire District contends that the ADEA defines “employer” to cover only political subdivisions having twenty or more employees. John Guido and Dennis Rankin assert that the ADEA’s definition of “employer” creates separate categories of employers, one of which is state political subdivisions with no minimum-employee requirement. The outcome of this case will have implications on the liability of small state political subdivisions under the ADEA for age-based hiring decisions.

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The Supreme Court will determine whether the United States Fish and Wildlife Service has overstepped its authority under the Endangered Species Act of 1973 by designating land that is currently uninhabited and inhospitable for the endangered dusky gopher frog as "critical habitat" for such frog populations. The Supreme Court will also consider whether the agency’s decision in this matter is subject to judicial review. The Fifth Circuit held and the Fish and Wildlife Service now argues that the agency's designation was in accordance with the discretion afforded to the agency by Congress, and that the Endangered Species Act does not authorize judicial review. The Court’s decision in this case will have implications for property rights, federalism, and agency discretion.

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On July 15, 2002, Walter Allen Rothgery was arrested without warrant and appeared before a local magistrate as required by Texas law. Following his release on bond, Rothgery made several written requests for appointed counsel to Gillespie County officials, but county officials failed to appoint defense counsel until after a grand jury indicted Rothgery six months later. Rothgery sued Gillespie County under 42 U.S.C. § 1983, claiming that the County's failure to grant his request until after indictment violated his Sixth Amendment right to counsel. Rothgery contended that his initial appearance before the magistrate constituted the commencement of "adversary judicial proceedings," which triggers an accused person's Sixth Amendment right to appointed counsel under U.S. Supreme Court precedent. Gillespie County supports the Fifth Circuit's holding that Rothgery's right to counsel did not attach until after Rothgery's indictment because, until that time, the state had not committed itself to prosecute Rothgery. The decision in this case will determine when the right to counsel vests, and will impact the administration of criminal proceedings and law enforcement.

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