The U.S. Supreme Court started its 2021 term Monday with a blockbuster docket of cases on abortion, gun rights, religion and other possible future issues such as affirmative action.
So far, though, in the opinion of Kannon Shanmugam, a top tier Supreme Court advocate, the court’s business docket this term is “ridiculously light.” Where the court has handled oil and gas issues of interest to Texas in past years, for example, there are no energy cases this term yet.
But Texas will make its mark this term in a different area of the law: the First Amendment. Four pending cases arising from Texas will test issues of free speech and free exercise of religion. So here is a quick rundown of the Texas cases as well as the business cases of possible interest.
Cases Arising from Texas:
Ramirez v. Collier: A suit against Texas was brought by death row inmate John Ramirez, who wanted his pastor to be present for the execution and also wanted him to lay his hands on the parishioner as he died. Texas said no to the hand-laying, and the inmate claims this burdens his free exercise of religion in violation of the First Amendment. Seth Kretzer of the Law Office of Seth Kretzer in Houston represents Ramirez. counsel of record for Bryan Collier, executive director of the Texas Department of Criminal Justice, is Jennifer Wren Morris, Texas assistant attorney general. Argument set for Nov. 1.
City of Austin, Texas v. Reagan National Advertising of Texas Inc.: The case asks whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation, violating the First Amendment under the Reed v. Town of Gilbert precedent. Renea Hicks is counsel of record for Austin. Representing Reagan National Advertising is Paul, Weiss partner Kannon Shanmugam. Argument set for Nov. 10.
Houston Community College System v. Wilson: David Wilson, who was elected to the board of trustees of the Houston Community College, was later censured for controversial activities on the board. He claimed the censure violated his First Amendment speech rights. The U.S. Court of Appeals for the Fifth Circuit agreed with Wilson. Richard Morris of Rogers, Morris & Grover in Houston is counsel of record for the community college. Michael Kimberly of McDermott Will & Emery in Washington, D.C., represents Wilson. Argument set for Nov. 1.
Federal Election Commission v. Ted Cruz for Senate: The Texas Republican party challenged a federal election law that imposes restrictions on candidates when they repay personal loans that they make to their campaigns. Cruz claims that the repayment restrictions violate the First Amendment. Elizabeth Prelogar, principal deputy solicitor general, represents the Federal Election Commission. Charles Cooper of Cooper & Kirk in Washington, D.C., is counsel of record for Cruz. No date has been set for argument.
Business Cases
Cummings v. Premier Rehab Keller: This case involves both the Rehabilitation Act and the Affordable Care Act. The question is whether the compensatory damages available under Title VI of the Civil Rights Act of 1964, and the statutes that incorporate its remedies for victims of discrimination, include compensation for emotional distress. Civil rights groups including the ACLU of Texas are urging the court to rule that compensatory damages should be available. Representing Jane Cummins is Andrew Rozynski of Eisenberg & Baum in New York City. Kannon Shanmugam is counsel of record for the Rehab company. Argument set for Nov. 30.
CVS Pharmacy Inc. v. Doe: Like the Cummings case, this involves both the Rehabilitation Act and the Affordable Care Act. It was brought by HIV-positive class members who claim that delivery methods for their prescription drugs disproportionately harm people with HIV or AIDS. At issue is whether the Rehabilitation Act provides a disparate-impact cause of action for plaintiffs alleging disability discrimination. Representing CVS is Lisa Blatt of Williams & Connolly in Washington, D.C., and Doe is represented by Gerald Flanagan of Consumer Watchdog in Los Angeles. Argument is set for Dec. 7.
Unicolors v. H&M: This is a dispute betweena Los Angeles fabric designer and retailer H&M over copyright registration, which is necessary for bringing suit for copyright infringement. Unicolors included inaccurate information in a registration for some of its fabric designs, but claims that it was an innocent mistake. It is the only IP case before the court thus far this term. Representing Unicolors is E. Joshua Rosenkranz of Orrick, Herrington & Sutcliff in New York City, and Peter K. Stris of Stris and Maher in Los Angeles represents H&M. Argument set for Nov. 8.
Hughes v. Northwestern University: This case involves the requirements for alleging a violation of the Employee Retirement Income Security Act of 1974. But it is getting attention because it also can be viewed as a case about pleading standards more generally. Plaintiff groups are concerned that higher pleading requirements will demand that plaintiffs put forward their cases before any discovery. David Frederick of Kellogg, Hansen, Todd, Figel & Frederick in Washington, D.C., is counsel of record for Hughes. Craig Martin of Willkie Farr & Gallagher in Chicago is counsel of record for Northwestern. Argument set for Dec. 6.