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This case will help decide the bounds of the voter list-maintenance processes allowed under 52 U.S.C. § 20507. Petitioner Ohio Secretary of State Jon Husted argues that Ohio’s “Supplemental Process” for removing voters from its lists, which addresses voters who have not been active in the last two years, is authorized under § 20507 because it does not use the failure to vote as the only basis for removal. In contrast, Respondents A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless, and Larry Harmon (collectively “Randolph”) argue that Ohio’s Supplemental Process violates §20507 because it uses the failure to vote to initiate the removal process. The decision in this case has far-reaching implications for voter engagement and participation. Husted contends that the Supplemental Process is an important tool in fighting voter fraud, whereas Randolph maintains that the Process may disenfranchise minority voters and eligible voters who decide not to vote, harming the perceived integrity of the democratic process.

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This case, in which a police officer searched a stolen motorcycle on private property without a warrant, encapsulates a battle between two conflicting Fourth Amendment doctrines. Collins, arrested for receiving stolen property, argues that the police are forbidden from conducting a warrantless search of the area surrounding his home—the curtilage, which receives the same special constitutional protections as the home itself. Collins maintains that allowing the police to search his curtilage erodes Fourth Amendment rights and eliminates an important constitutional constraint on searches. Virginia counters that the officer’s search was justified by the automobile exception because, people have lowered expectations of privacy in their automobiles, which are heavily regulated property. Furthermore, as automobiles can be quickly moved out of a warrant’s jurisdiction, Virginia contends that requiring the police to wait for a warrant is impractical and would impede police investigations. How the Court decides on the constitutionality of the search will determine whether the automobile exception applies to vehicles on private property, or if that exception is superseded by the protections of curtilage.

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Terrence Byrd was pulled over by a Pennsylvania police officer for violating a state driving law. Eventually, the officer and another police officer discovered that Byrd was driving a rental car but was not a named driver on the rental agreement. Moreover, the officers also discovered that Byrd had a criminal record that included drug, weapon, and assault charges. Ultimately, the officers asked Byrd for permission to search the car, which they assert that Byrd granted, and, the officers found both heroin and illegal body armor in the car. Byrd challenged the stop and search arguing that it was unlawful. The District Court held that the stop and search was lawful. On appeal, the Third Circuit further recognized that the driver of a rental car who is not listed on the rental agreement did not have a reasonable expectation of privacy. The Supreme Court will likely resolve the Circuit conflict regarding whether a reasonable expectation of privacy exists for a driver in sole possession of a rental vehicle that is not listed as a driver on the rental agreement.

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This case asks the Supreme Court to consider whether it should equitably apportion the waters of the Apalachicola-Chattahoochee-Flint River Basin between Georgia and Florida. There is a long history of conflict between the states over Georgia’s use of water from the Chattahoochee and Flint rivers. Florida argues that the Supreme Court should impose a water consumption cap on Georgia because Georgia’s unreasonable water consumption inflicts real harm on Florida and its ecosystems. Georgia counters that Florida is not entitled to relief in this original jurisdiction action because Florida has not proven that the consumption cap will provide effective redress and Florida has failed to include a necessary party in the litigation. Florida contends that Georgia’s water usage has caused a reduction in the flow of the Apalachicola River that has harmed the region’s oyster population damaging the regional economy. Moreover, Florida suggests that it is the Court’s duty to intervene and apportion the water rights equally between the two states. Georgia disputes that it harmed the oyster population and organizations supporting it argue that upstream states have no duty to maintain or protect water flows to benefit downstream states. 

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Texas filed a complaint against New Mexico and Colorado, pursuant to the Supreme Court’s original jurisdiction under Article III, Section 2, Clause 2 of the United States Constitution and Title 28, Section 1251(a) of the United States Code, alleging that New Mexico violated the terms of the Rio Grande Compact to which all three states are party. The United States subsequently moved to intervene in the proceedings citing both claims under the Rio Grande Compact and federal reclamation law. In the Special Master’s First Interim Report, he suggested that the Court deny New Mexico’s motion to dismiss Texas’s claim, but grant its motion to dismiss the United States’ Complaint in Intervention to the extent that it states a claim under the Rio Grande Compact. The United States argues that the Court must allow it to assert all of its claims against New Mexico because it has a federal interest in the matter. New Mexico and Colorado assert that allowing the United States to proceed with its claims risks re-litigating claims that are already pending at the state level, which they believe is the proper forum for the adjudication of water rights. The Supreme Court’s decision in this case will affect the scope with which the United States can proceed as a party in this action.

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Under 29 U.S.C. §153(b), the “[National Labor Relations] Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to [delegation].” New Process Steel argues that the National Labor Relations Board (“NLRB”) is prohibited by statute from deciding issues when it acts with only two sitting members on a five-member Board. The NLRB contends that it has the authority to issue decisions, even with only two current members on a five-member Board. The NLRB claims that its previous delegation of authority to a three-member Board allows the Board to continue operating with a two-member quorum. This case will decide how to interpret the 29 U.S.C. §153(b), and whether the current two-member quorum meets the minimum statutory requirement. This case will also affect how the Board handles pending or future cases when there are vacancies on the Board.

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The Nevada Commission on Ethics (“Commission”) censured Michael Carrigan, a city council member, for voting to issue a permit to a company employing his friend and campaign manager as a consultant. The Commission alleges that Carrigan violated a catch-all recusal provision requiring an official to disqualify himself when faced with a personal interest in a matter “substantially similar” to several enumerated interests. Carrigan argues that the provision is an impermissible burden on his First Amendment rights of expression and association and must be subject to strict scrutiny. The Commission contends that any infringement on the First Amendment is incidental, and therefore the United States Supreme Court should eschew strict scrutiny in favor of a lower standard of review. The Supreme Court of Nevada applied strict scrutiny and struck down the provision as unconstitutional. The United States Supreme Court’s decision could affect the level of scrutiny at which recusal provisions are reviewed nationwide and the freedom of states to establish independent legislator voting restrictions.

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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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