September 25, 2020

SCOTUS 2020-21 Term Preview


  • In the upcoming term beginning in October, the Supreme Court will hear major cases involving Obamacare, the Mueller report, and the free exercise clause of the Constitution.
  • Following the invalidation of the independent, single-director structure of the Consumer Financial Protection Bureau last term, the court will hear a case challenging the constitutionality of the Federal Housing Finance Agency.
  • The court also will decide whether copyright protections apply to so-called application programming interfaces, an issue that could affect products across the tech world. 

The Supreme Court is scheduled to hear important cases that could have significant effects across the country. Among other things, the constitutionality of the Affordable Care Act is again up for consideration. The court also will decide Congress’ power to obtain grand jury materials in connection with an impeachment trial. Google and Oracle will vie over the question of whether application programming interfaces are copyrightable and, if they are, what constitutes fair use.

Issues for the Coming Term


Several cases are related to major decisions issued during the last term. After the court ruled that the leadership structure of the Consumer Financial Protection Bureau was unconstitutional, it will now decide whether a similar structure at the Federal Housing Finance Agency violates the president’s appointment powers. The court also will decide a major free exercise case, one that might be informed by its decision last term in Espinoza v. Montana Department of Revenue.

Free Exercise

The court is poised to make a major change to free exercise clause jurisprudence with the case Fulton v. City of Philadelphia. In that case, Philadelphia prohibited Catholic Social Services from placing children in foster homes because the organization would not license same-sex couples to be foster parents. The Catholic group sued, arguing that setting a requirement based on licensing same-sex couples burdens the free exercise of religions that disapprove of same-sex foster parents.

This case has added significance because the court may revise its landmark holding from Employment Division v. Smith. The rule resulting from that case is that a neutral, generally applicable law does not violate the free exercise clause of the Constitution. In the new case against Philadelphia, the relevant antidiscrimination law does not single out religion and applies to all foster home licensing organizations. If the court sides with the Catholic group, it would be a major blow to the rule from Employment Division v. Smith.

Oral arguments for Fulton v. City of Philadelphia are scheduled for November 4.


On November 10, the court will hear oral arguments in California v. Texas. The court will decide whether the Affordable Care Act’s mandate that people must purchase health insurance is now unconstitutional and, if it is, whether the individual mandate can be severed without invalidating the rest of the ACA.

In 2012, the Supreme Court held by a 5-4 vote that the individual mandate of the ACA violated the commerce clause of the Constitution, but was a valid exercise of Congress’s taxing power. Five years later, Congress set the penalty for violating the individual mandate at zero. A group of 20 states sued the federal government in 2018, arguing that the mandate could not now be considered a tax because it does not generate any revenue.

The Texas district court hearing the case held that the individual mandate was unconstitutional and could not be severed from the rest of the law. The 5th Circuit affirmed the ruling on unconstitutionality, but ordered additional consideration by the trial court on whether the individual mandate was severable. The Supreme Court will hear arguments on both issues.

Tech Copyright

Google v. Oracle America, a copyright case to be heard at the Supreme Court in the coming term, may dramatically alter the tech landscape. At issue are “application programming interfaces,” which serve as a way for one application to interact with another. For example, when an online article has a Twitter button for tweeting the article, the website hosting the article is using an API Twitter makes publicly available so that more developers make products that use Twitter. In practice, virtually every application uses APIs, often dozens of them.  

In the current case, Google copied Java, an Oracle-owned programming language using many APIs, to develop the Android operating system for phones without paying for a license to use Oracle’s APIs. Oracle claimed that this was a copyright violation. The case has been going since 2010, with lower courts ruling that APIs are copyrightable and Google’s use of it was not fair use.

Many other technology firms, including IBM, Microsoft, Etsy, and Reddit, have filed amicus briefs supporting Google. Their side alleges that extending copyright to APIs would chill application development. The Trump administration has backed Oracle and claims that denying copyright protections to APIs would disincentivize the software developers who create APIs.

Separation of Powers

The court will hear two major separation of powers cases, deciding whether the House Judiciary Committee can access the unredacted Mueller investigation report and whether the leadership structure of the FHFA violates the president’s appointment powers.

The Judiciary Committee case arises out of the Mueller investigation and the subsequent impeachment trial of President Trump. The House Judiciary Committee sought disclosure of grand jury material and the redacted portions of the Mueller investigation report in July 2019 on the grounds that the federal rules of criminal procedure allow courts to authorize disclosure of grand jury materials in connection with a “judicial proceeding.” The Supreme Court will hear oral arguments sometime in the coming term on whether an impeachment trial is considered a judicial proceeding for purposes of the federal rules of criminal procedure.

In Collins v. Mnuchin, the court will decide whether the FHFA’s leadership structure of a single director removable by the president only for cause violates the separation of powers. This case comes on the heels of Seila Law v. CFPB, which found that agency’s leadership structure was unconstitutional. While the structure is similar, Chief Justice Roberts was the deciding vote in Seila Law, and his decision accorded weight on the particular history and functions of the CFPB, so it is not clear whether the FHFA’s structure also will be found unconstitutional. If it is, the court will decide whether actions taken by the FHFA are void because of the unconstitutional structure.

What Happens in the Case of Tie Votes?

With the passing of Justice Ruth Bader Ginsburg, there is an increased chance that some of these cases could result in a 4-4 split. In the event of such a split in a case appealed to the Supreme Court, the lower court decision under review remains valid.

In some rare cases, the Supreme Court has original jurisdiction, meaning there is no lower court in the case. Article III, section 2 of the Constitution grants the Supreme Court original jurisdiction over cases affecting ambassadors and similar public officials, and in cases between two or more states. There is no clear rule for what happens if the Supreme Court splits in a case for which the Supreme Court has original jurisdiction. There have been two original jurisdiction tie votes in the court’s history. In one case, from 1870, no order was entered. In the other, from 1953, the chief justice’s side announced the order of the court, but the decision was overturned by the court one year later. 

Issue Tag: Judiciary