Previewing the US Supreme Court’s October Sitting

The U.S. Supreme Court will return to the bench on October 4, 2021, and conduct oral arguments in person for the first time since March 2020. In a recent update to its proceedings, the justices have elected to continue to take turns asking questions, much like when they conducted oral arguments remotely, rather than return to the completely unstructured format. According to the Court’s Guide for Counsel, each justice will be given the opportunity to ask questions of each lawyer after his or her time has ended. Questioning will proceed in order of seniority, beginning with the Chief Justice.

The Court’s October sitting includes nine cases, which address issues ranging from the death penalty to state sovereignty to abortion. Below is a brief preview of the most closely-watched cases:

• Hemphill v. New York: A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence. The question before the Court is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.
• U.S. v. Zubaydah: The case involves allegations by a prisoner at Guantanamo Bay that he was tortured by CIA contractors at a CIA “dark site.” The specific question before the Court is: Whether the court of appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.
• U.S. v. Tsarnaev: The case involves prosecutors’ efforts to reinstate the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev. The specific issues before the justices include: (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
• Cameron v. EMW Women’s Surgical Center, P.S.C.: Through more than two years of litigation, the Secretary of Kentucky’s Cabinet for Health and Family Services led the state’s legal defense of its law prohibiting abortions in which an unborn child is dismembered while still alive. While this matter was pending before the Sixth Circuit, the Secretary retained lawyers from the Kentucky Attorney General’s office to represent him. After the Sixth Circuit upheld the permanent injunction against Kentucky’s law by a divided vote, the Secretary decided not to appeal further. As allowed by Kentucky law, Attorney General Daniel Cameron promptly filed a motion to intervene to pick up the defense of Kentucky’s law where the Secretary had left off. Over a dissent, the Sixth Circuit refused to allow the Attorney General to defend Kentucky law. The Attorney General, the majority held, should have moved to intervene earlier, even though his office had been representing the Secretary. The Court must now decide: Whether a state attorney general vested with the power to defend state law should be permitted to intervene after a federal court of appeals invalidates a state statute when no other state actor will defend the law.

We will be closely following these cases, as well as the others on the Court’s docket. Please check back for updates as they justices hear oral arguments.