The Supreme Court has scheduled several high-profile cases for oral argument in late November and early December.
One is about a wealth tax on capital gains never received, and another challenges a securities law enforcer’s power to use in-house judges to try accused people.
Seven cases in all were scheduled for hearing dates running from Nov. 27 through Dec. 6 by the court on Oct. 12.
Other cases involve the bankruptcy of the company that makes OxyContin, hardship claims in the deportation process, and criminal appeals.
For the court to hear a case, at least four of the nine justices must vote to grant the petition for certiorari, or review.
On Nov. 29, the court will hear a separation of powers case, Securities and Exchange Commission (SEC) v. Jarkesy (court file 22-859).
The SEC, an independent federal agency, enforces federal securities laws administratively or by filing civil actions in court.
George Jarkesy and his advisory firm, Patriot28, were sued in federal court in the District of Columbia in 2013 for infringing securities laws in managing two hedge funds.
Mr. Jarkesy countersued, arguing that the structure of the commission ran afoul of the U.S. Constitution.
The lower court found for the SEC, which continued the proceedings and assigned the case to an administrative law judge who confirmed the violations. The SEC reviewed and ratified the decision and ordered the parties to pay $300,000 in civil penalties.
A divided U.S. Court of Appeals for the 5th Circuit found that the two levels of removal protections applying to administrative law judges unconstitutionally shielded them from presidential oversight. The court also held that SEC proceedings infringed the Seventh Amendment right to a jury trial and that Congress had unconstitutionally delegated its lawmaking powers to the commission, according to a Ballotpedia summary.
Ms. Blatt said, “We’re at a place in our country, and I think with the court, where they’re rethinking these fundamental questions about the administrative state, and how people’s liberty interests are being taken away by bureaucrats.”
“SEC is an aggressive agency,” she said. “To be gone after by the SEC, I think, triggers all the senses of big, bad, mean government.”
“Part of the unfairness of all of this is that you’re stuck in front of this agency, and they’re adjudicating their own cases, and they never lose,” attorney Paul Clement of the law firm of Clement and Murphy in Washington added. Mr. Clement was U.S. solicitor general under President George W. Bush from July 2004 to June 2008.
“What I think a majority of the court cares deeply about in this context is accountability,” he said.
The tax case of Moore v. United States (court file 22-800) will be heard on Dec. 5.
Charles and Kathleen Moore, a married Washington state couple, are challenging a wealth tax that was levied on capital gains they never received.
The mandatory repatriation tax, also known as the Section 965 transition tax, was part of the Tax Cuts and Jobs Act passed by the Republican-controlled Congress in 2017 and signed into law by President Donald Trump in December 2017.
The provision taxes U.S. citizens on certain accumulated foreign earnings of foreign corporations going back 30 years, even if the earnings haven’t been distributed.
This “pretty obscure statute” addressed a “concern that there were certain taxpayers who were leaving lots and lots of money in foreign companies, and they weren’t repatriated to the United States where it could be taxed. And so they were building up lots of wealth in a way that wasn’t giving any sort of benefit to the public fisc,” Mr. Clement said at the Heritage Foundation event.
It is “the great 16th Amendment case of the court’s term,” the lawyer added.
Before the 16th Amendment was ratified in 1913, “there were some real limits on how big the federal government could get because it was seriously revenue-constrained,” he said.
“The 16th Amendment just blew the doors off of that and paved the way for the income tax, which is now why we have a federal government of this huge size that we have.
“So other than thinking about this as a boring tax case, I think the 16th Amendment [and the] 17th Amendment, which also fundamentally changed the relationship between the states and the federal government by having direct election of senators—this is super interesting stuff, at least to me.”
The Supreme Court will hear Harrington v. Purdue Pharma LP (court file 23-124) on Dec. 4.
On Aug. 10, the court put on hold a proposed bankruptcy plan for beleaguered opioid manufacturer Purdue Pharma, which is accused of playing a major role in fueling the ongoing opioid crisis.
The company makes oxycodone, marketed as OxyContin and under other names, which is a semi-synthetic narcotic analgesic that serves as a popular painkiller. The drug is said to cause physical dependence and addiction.
The company has also been criminally prosecuted in connection with opioids. Years ago, it promoted OxyContin, claiming it was non-addictive.
The problem with the plan, according to the Biden administration, is that it includes a financial settlement that allows those who owned the company to avoid future lawsuits related to its allegedly irresponsible marketing practices and for other now-frowned-upon company policies said to have contributed to the rise of opioid abuse in the United States.
The settlement would grant a far-reaching release of liability to members of the Sackler family, who until recently controlled the company. Forbes magazine listed the Sacklers in 2016 as the 19th wealthiest family in the United States, with an estimated net worth of $13 billion.
Members of the family took out about $11 billion from the company in the 11 years before it filed a bankruptcy petition, according to the government.
Those family members agreed to contribute as much as $6 billion to Purdue Pharma’s bankruptcy reorganization plan on several conditions, including that the Sacklers, who have not themselves sought bankruptcy protection, receive a release from liability.
The release “extinguishes the claims of all opioid claimants except the United States, and therefore applies to an untold number of claimants who did not specifically consent to the release’s terms” and is an abuse of the bankruptcy system, the government said.
The court will hear Muldrow v. City of St. Louis (court file 22-193) on Dec. 6.
The case involves Jatonya Clayborn Muldrow, a Missouri police sergeant who claims illegal discrimination was behind unfavorable employment decisions made against her.
Ms. Muldrow says the St. Louis police department forced her out of the intelligence unit, transferred her to a different job, and denied her a requested transfer because she is a woman. In other words, she claims that after serving in a high-level capacity, she was placed in a dead-end job because of her sex.
The court is expected to review what protections Title VII of the Civil Rights Act of 1964 affords an employee who claims she was the victim of a discriminatory transfer.
That statute makes it unlawful for a private employer or a state or local government “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The court will hear the immigration case known as Wilkinson v. Garland (court file 22-666) on Nov. 28.
Trinidadian citizen Situ Kamu Wilkinson claimed if he is deported it would lead to hardship for his family. He also claimed he would face persecution if forced to go back to his native land.
He came to the United States in 2003 and overstayed his tourist visa. Along the way, he had a son who is a U.S. citizen. The son experiences severe asthma attacks and often has to be hospitalized. Mr. Wilkinson’s wife suffers from depression, and he is the family’s only means of support.
He came to the attention of immigration authorities when he was charged with a drug offense in Pennsylvania in 2019, even though he was acquitted.
An immigration judge rejected Mr. Wilkinson’s application for a deportation hardship waiver. The decision was upheld by the Board of Immigration Appeals.
The U.S. Court of Appeals for the 3rd Circuit also ruled against him, finding that the decision not to grant him the waiver was discretionary, so it lacked jurisdiction to review it. The 3rd Circuit also turned down his claim of persecution.
The Supreme Court is expected to resolve a split among the federal courts of appeal.
Three of the circuit courts have held that courts are allowed to review a hardship determination under the federal Immigration and Nationality Act, but two circuit courts have ruled that a hardship finding cannot be reviewed by the courts.
On Nov. 27, the court will take up the cases of Brown v. United States (court file 22-6389) and Jackson v. United States (court file 22-6640), which have been consolidated and will be heard together.
The consolidated case examines the interaction of the federal Armed Career Criminal Act and federal drug laws, which frequently change.
In both individual cases, the defendants were given mandatory 15-year sentences because they were previously convicted of serious drug offenses.
The Supreme Court is expected to consider whether courts should focus on the drug laws in effect at the time of the firearms conviction or the drug laws in effect at the time of the drug offenses.
Justin Rashaad Brown is asking the Supreme Court to review his case because the federal government had already decriminalized hemp by the time he was convicted on a gun charge.
The court will hear the double jeopardy case of McElrath v. Georgia (court file 22-721) on Nov. 28.
In Georgia in 2017, a jury handed down a split verdict, finding Damian McElrath not guilty of malice murder by reason of insanity and guilty but mentally ill of felony murder and aggravated assault in the stabbing death of his mother.
Mr. McElrath appealed, arguing the verdicts were “repugnant” under Georgia law and that the conviction should be reversed.
His petition states that according to the Georgia Supreme Court, “inconsistent verdicts” involve “seemingly incompatible” conclusions.
“The ‘classic example,’ it said, is where the jury acquits a defendant on a predicate offense but then convicts on the compound offense,” but the state supreme court “has held that inconsistent verdicts should stand.”
Despite that, Georgia law holds that repugnant verdicts take place when the jury must “make affirmative findings shown on the record that cannot logically or legally exist at the same time.”
When that happens, such “verdicts are ‘a logical and legal impossibility,’ and both verdicts must be vacated and remanded for a new trial.”
The Georgia Supreme Court tossed both verdicts and sent the case back for a new trial on both charges.
Mr. McElrath says the Fifth Amendment ban on double jeopardy prevents the state from trying him again on the acquitted charge.
The Supreme Court is not scheduled to hear any oral arguments in the coming two weeks.
The next hearing will take place on Oct. 30 in Culley v. Marshall (court file 22-585), a criminal appeal.
