The NCSL Blog


By Lisa Soronen

Unless something surprising happens, Judge Amy Coney Barrett is expected to take the bench before the U.S. Supreme Court hears the most recent challenge to the constitutionality of the Affordable Care Act on Nov. 10. But before she is confirmed the court will hear 10 cases in its October sitting with only eight justices on the bench. 

Supreme Court buildingAt least four of those cases are of interest to states and local governments. The State and Local Legal Center (SLLC) filed an amicus brief in three of them. The Supreme Court was supposed to hear all four of these cases last term. 

When the court closed in March due to COVID-19 it was supposed to hear oral argument in about 20 cases by the end of April. Instead, it heard oral argument in 10 cases over the phone in May and decided those cases by mid-July. It moved the remaining 10 cases to the October 2020 sitting. 

It is fair to describe the cases moved to October as less urgent and less controversial than many of the cases the court heard in May. To the extent the justices are in greater agreement in less controversial cases (which is not always true) being short a justice might not matter.

Carney v. Adams is the first case of the new term where the Supreme Court will hear oral argument. Delaware’s Constitution requires that three state courts be balanced between the two major political parties. The main question in this case is whether this scheme violates the First Amendment. The SLLC amicus brief, joined by NCSL, argues it does not, pointing out that states and local governments regularly use bipartisan decision-making processes, which may also be unconstitutional if the court strikes down Delaware’s judicial selection scheme. 

In Rutledge v. Pharmaceutical Care Management Association the Supreme Court will decide whether states’ attempts to regulate pharmacy benefit managers’ (PBMs) drug-reimbursement rates are preempted by the Employee Retirement Income Security Act. PBMs set reimbursement rates to pharmacies dispensing generic drugs. Arkansas requires PBMs to set generic drug reimbursements rates at cost or higher. It claims that 36 states have enacted similar legislation “intended to curb abusive prescription drug reimbursement practices.” 

The issue the Supreme Court will decide in City of Chicago, Illinois v. Fulton is whether local governments must immediately return a vehicle impounded because of code violations upon a debtor filing for bankruptcy. The City of Chicago impounds vehicles where debtors have three or more unpaid fines and doesn’t return them automatically when a person files for bankruptcy. The SLLC amicus brief (not joined by NCSL) argues this practice “protects the efficacy of traffic and parking regulations, as well as avoiding perverse incentives for owners of impounded vehicles to file bankruptcy petitions.” 

Excessive force is a violation of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” In Torres v. Madrid the Supreme Court will decide whether a Fourth Amendment “seizure” has occurred when police unsuccessfully attempt to restrain someone using physical force. The SLLC amicus brief (not joined by NCSL) argues no seizure has occurred because “[f]rom the Founding to today, ‘seizure’ has meant to ‘take possession’—thus encompassing an element of physical control.”

If the justices are unable to reach agreement in any of these cases the court will likely rehear them as soon as the bench is full again.  

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.