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Merrill v. Milligan

Issues

Does Alabama’s 2021 congressional redistricting map violate Section 2 of the Voting Rights Act?

This case asks the Supreme Court to interpret Section 2 of the Voting Rights Act (“VRA”), which prohibits discriminatory voting practices. Petitioner Alabama Secretary of State John Merrill claims Alabama’s recently redrawn congressional district map, which results in one majority-minority district, does not violate the VRA because it was drawn using race-neutral guidelines. Respondent Evan Milligan counters that the map violates the VRA because its effect is to concentrate Black voters into one district, undermining their voting power. This case has important ramifications for future redistricting efforts and for claims of vote dilution under the VRA.

Questions as Framed for the Court by the Parties

Whether the state of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act.

Alabama has seven seats in the United States House of Representatives. Milligan v. Merrill at 2–3. Following the 2020 census, in May of 2021, the Alabama Legislature and Committee on Reapportionment (the “Committee”) began redrawing its congressional districts, known as “redistricting,” to account for population changes since the last census.

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Delaware v. Pennsylvania and Wisconsin

Issues

Which states have jurisdiction over funds from unclaimed financial instruments under the Federal Disposition of Abandoned Money Orders and Traveler’s Checks Act, and are MoneyGram Official Checks subject to that Act?

Court below
Original Jurisdiction

This case asks the Supreme Court to define MoneyGram’s Official Checks (“Official Checks”) to determine which states have jurisdiction over funds from unclaimed Official Checks, and then to clarify which abandoned financial instruments are subject to the Federal Disposition of Abandoned Money Orders and Traveler’s Checks Act (“FDA”). The FDA sets the standards for the remittance of funds payable on unclaimed financial instruments. Petitioner Delaware argues that Official Checks are “third party bank checks,” not “money orders,” “traveler’s checks,” or “other similar written instruments” and are therefore not subject to the FDA. Respondents Pennsylvania and Wisconsin counter that Official Checks are subject to the FDA as either “money orders” or “other similar written instruments.” The outcome of this case has implications for the state receipt of funds from unpaid financial instruments, the role of the Court in interpreting legislation, and the direction of future litigation regarding the recovery of funds.

Questions as Framed for the Court by the Parties

(1) Whether MoneyGram Official Checks are “a money order, traveler’s check, or other similar written instrument (other than a third party bank check) on which a banking or financial organization or a business association is directly liable,” pursuant to 12 U.S.C. § 2503; (2) whether the court should command Wisconsin and Pennsylvania not to assert any claim over abandoned and unclaimed property related to MoneyGram Official Checks; and (3) whether all future sums payable on abandoned MoneyGram Official Checks should be remitted to Delaware.

MoneyGram Payment Systems, Inc. (“MoneyGram”) sells financial instruments through which its customers can transfer their funds. Exceptions to Report of the Special Master, Delaware at 2, 9.

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Arellano v. McDonough

Issues

Does the rebuttable presumption of equitable tolling, which would allow a veteran to apply for disability benefits past the normal deadline, apply to 38 U.S.C. § 5110(b)(1), and if so, has the Government rebutted that presumption?

38 U.S.C. § 5110(b)(1) allows veterans who apply for disability compensation benefits within one year of discharge from the military to have retroactive disability compensation benefits counted from the date of discharge instead of the date of application for benefits. In this case, the Supreme Court will determine whether equitable tolling, an exemption to statutes of limitations under which plaintiffs who could not discover the basis to bring their lawsuits until after the expiration of the limitations period may bring a claim, applies to this one-year deadline. Although 38 U.S.C. § 5110(b)(1) does not have an explicit statute of limitation, Arellano argues that the statute functionally serves as a statute of limitations and that the Court has held that equitable tolling applies by default to functional statutes of limitations, including those applicable to suits against the government. McDonough counters that § 5110(b)(1) is not a statute of limitations, and that if Congress intended to allow equitable tolling to apply to the statute, it would have explicitly stated so in the law. The Court’s decision in this case will impact veterans’ welfare and the speed and procedure of disability claims administration.

Questions as Framed for the Court by the Parties

(1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

Congress has authorized disability benefits under 38 U.S.C. § 1110 for veterans who suffered disabilities during their service. Arellano v. McDonough at 1061. The size of the benefits is partly determined by the effective date of the award.

Acknowledgments

The authors would like to thank Professor Kevin M. Clermont for his guidance and insights into this case.

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Kennedy v. Bremerton School District

Issues

Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?  

This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.

Questions as Framed for the Court by the Parties

(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe and Professor Michael Heise for their guidance and insights into this case.

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Shoop v. Twyford

Issues

Does the All Writs Act authorize courts to transport prisoners to outside medical facilities for testing to collect evidence to establish entitlement to habeas corpus relief, and must a court first determine if that evidence is material and admissible before granting the authorization to collect it?

This case asks the Supreme Court to determine whether the All Writs Act (“Act”), which controls an inmate’s access to attorneys and investigative services, authorizes courts to order state officials to transport prisoners to medical examinations in habeas corpus proceedings. In addition, this case asks the Supreme Court to determine whether prisoners must first demonstrate that the medical evidence is reviewable by the issuing court and material to a claim of habeas corpus relief before they can be granted an evidence-collecting writ under the Act. Tim Shoop, Warden, argues that Raymond Twyford’s writ, which orders Shoop to transport the Twyford to a medical examination, violates the “agreeable to the usages and principles of law” clause as well as the “necessary or appropriate clause” of the Act. Therefore, Shoop contends that Twyford’s writ must be struck down. Twyford counters by arguing that the writ in question satisfies both clauses of the Act. Consequently, Twyford argues that the writ must be affirmed. The outcome of this case will impact the rights of thousands of inmates in habeas corpus proceedings as well as the power of courts adjudicating habeas corpus claims.

Questions as Framed for the Court by the Parties

 (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

In 1993, Raymond Twyford (“Twyford”) was convicted of aggravated murder and sentenced to death by a jury in Ohio. Twyford v. Shoop at 521. In 2003 and 2008, the Ohio Supreme Court denied Twyford’s direct appeals and his federal habeas petition. Id. at 521­­–22.

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Nance v. Ward

Issues

Does a claim challenging a state’s only method of execution constitute a habeas petition or a 42 U.S.C. 1983 action; and, if the claim does constitute a habeas petition, is that habeas claim successive if it was unripe when the original petition was filed?

This case asks the Supreme Court to determine whether a method-of-execution challenge constitutes a habeas petition or may be brought as a 42 U.S.C. Section 1983 petition. Petitioner Michael Nance brought a 42 U.S.C. Section 1983 petition alleging that Georgia’s lethal injection was unconstitutional. Michael Nance argues that method-of-execution claims are Section 1983 claims because they do not end or shorten imprisonment but attack the constitutionality of a given punishment or method of execution. Moreover, even if the claim is properly a habeas petition, Nance contends that it is not successive because method-of-execution claims are not ripe until execution is imminent. Respondent Timothy Ward, Commissioner of the Georgia Department of Corrections, counters that because there are no alternative methods of execution, Ward’s claim effectively bars execution—in other words, it is a habeas petition. Ward adds that Nance’s petition is successive because he already challenged this sentence, and no exceptions apply. This case will impact the timely implementation of justice, and constitutional challenges to state sovereignty and methods of execution.

Questions as Framed for the Court by the Parties

(1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

In 1993, Michael Nance ("Nance") robbed a bank in Gwinnett County, Georgia. Nance v. Commissioner, Georgia Department of Corrections, at 1203. Upon fleeing in his own car, the dye packets hidden in stolen cash exploded. Id. Nance then abandoned his car and crossed the street to stop a car backing out of the liquor store parking lot. Id. Nance killed the driver of the car, Gabor Balogh. Id.

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Biden v. Texas

Issues

Is the Department of Homeland Security required by law to continue returning certain undocumented aliens to Mexico, consistent with the Migrant Protection Protocols; and, was the Fifth Circuit correct in holding DHS erred in terminating MPP?

This case asks the Supreme Court to consider whether the Department of Homeland Security (“DHS”) must continue enforcing the Migrant Protection Protocols (“MPP”). On October 29, 2021, DHS issued a decision terminating MPP, a Trump administration policy where Border Patrol returns certain undocumented aliens arriving at the southern border to Mexico during their immigration proceedings. The Biden Administration (“President Biden”) argues that DHS permissibly rescinded MPP via agency memoranda because the amended Immigration and Nationality Act (“INA”) gives DHS discretion over whether to remove, detain, or parole noncitizens. Texas and Missouri respond that DHS’s rescission of MPP has no legal effect because if DHS lacks capacity to detain undocumented aliens, the INA obligates DHS to remove such persons by continuing to enforce MPP. The outcome of this case has significant implications for undocumented aliens seeking asylum in the United States and immigrant communities within the United States, as well as the role of the executive in determining immigration policy.

Questions as Framed for the Court by the Parties

(1) Whether 8 U.S.C. § 1225 requires the Department of Homeland Security to continue implementing the Migrant Protection Protocols, a former policy under which certain noncitizens arriving at the southwest border were returned to Mexico during their immigration and proceedings; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred by concluding that the secretary of homeland security’s new decision terminating MPP had no legal effect.

In December 2018, the Department of Homeland Security (“DHS”) initiated the Migrant Protection Protocols (“MPP”). Texas v.

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Oklahoma v. Castro-Huerta

Issues

Do states have criminal jurisdiction over crimes carried out by non-Indians against Indians in Indian country?

This case asks the Supreme Court to consider the contours of state prosecutorial power in Indian country. This case flows from the Supreme Court’s decision in McGirt v. Oklahoma, which found that a significant portion of eastern Oklahoma was Indian country for criminal law purposes. Oklahoma asserts that, under principles of state sovereignty, it has the authority to prosecute crimes committed by non-Indians against Indians in Indian country within the state’s territorial boundaries. Victor Manuel Castro-Huerta counters that a state can prosecute non-Indians for crimes committed in Indian country only when Congress has authorized the state to do so; in all other situations, the federal government has the exclusive authority to prosecute under the General Crimes Act. This case has significant implications for tribal sovereignty and criminal jurisdictional boundaries between states and Indian tribes.

Questions as Framed for the Court by the Parties

Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country.

Victor Manuel Castro-Huerta (“Castro-Huerta”) is a non-Indian who was convicted of child neglect by a jury in Tulsa County District Court, a state court in Oklahoma. Castro-Huerta v.

Acknowledgments

The authors would like to thank Professor Michael Sliger for his guidance and insights into this case.

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Siegel v Fitzgerald

Issues

Does the Bankruptcy Judgeship Act of 2017, which increases filing fees for bankruptcy in all states except Alabama and North Carolina, violate the uniformity requirement of the Bankruptcy Clause?

This case asks the Supreme Court to determine whether Section 1930 of the Bankruptcy Judgeship Act of 2017, which increased filing fees in trustee districts but not in bankruptcy administrator districts, violates the uniformity requirement of the Bankruptcy Clause. Petitioner Alfred H. Siegel argues that the disparity in fees is non-uniform because it applies to different geographic locations in the United States differently. As a result Siegel, contends that that the fee system is unconstitutional, and asks the Court to grant a full refund of the difference in fees. Respondent John P. Fitzgerald, III, counters that the disparity does not violate the uniformity requirement of the Bankruptcy Clause, impacting trustee districts and administrator districts in a facially neutral way. The outcome of this case has heavy implications for the delegation of congressional power and the structure of bankruptcy courts.  

Questions as Framed for the Court by the Parties

Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution’s bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not those under the Bankruptcy Administrator program.

In 1978, Congress established the Trustee program and Bankruptcy Administrator program. Siegel v Fitzgerald at 160. These programs were designed to handle United States bankruptcy proceedings.

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United States v. Washington

Issues

Does a state workers’ compensation law that only applies to federal contract workers who work at a specific federal facility violate the doctrine of intergovernmental immunity? 

This case asks the Supreme Court to consider whether the State of Washington’s workers’ compensation law may apply to certain federal contract workers without violating the intergovernmental immunity doctrine, which prevents state and federal governments from interfering with each other’s sovereignty. The United States argues the intergovernmental immunity doctrine applies and mandates that the state workers’ compensation law apply evenhandedly to federal, state, and private actors. Washington counters that the federal government has waived its intergovernmental immunity by statute, and even if it did not, the intergovernmental immunity doctrine does not require completely equal treatment of federal and non-federal actors. The outcome of this case has important implications for consideration of workplace dangers and the costs associated with workers’ compensation. 

Questions as Framed for the Court by the Parties

Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. § 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”

The Hanford site is a decommissioned federal facility for nuclear production in Washington State. United States v. Washington at 858. While active during World War II and the Cold War, approximately two-thirds of the United States’ weapons grade plutonium was produced at the Hanford facility. Id. The nuclear production resulted in large amounts of chemically hazardous and radioactive waste. Id.

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