TBJ January 2022

2021: The Year in Review

U.S. Supreme Court

Written by Bill Davis

The pandemic-based alterations to the U.S. Supreme Court’s standard operations extended into 2021. The court building remained closed to the public, and oral arguments were conducted telephonically through the end of the October 2020 term.

In-person oral arguments resumed in a new format at the start of the current term. Attorneys now have a bit of uninterrupted time at the outset. After the ensuing free-for-all, the chief justice allows each justice, in turn, to ask follow-up questions. Both last term’s telephonic format and this term’s in-person format have given Justice Clarence Thomas, who criticized the previous format for giving attorneys too little time to make their points, a much larger presence at argument.

In the final months of 2021, the court set three cases involving Texas for briefing and oral argument on highly expedited—and thus highly unusual—schedules. The first two, Whole Woman’s Health v. Jackson (No. 21-463) and United States v. Texas (No. 21-588), were argued back-to-back on November 1 and involve Texas Senate Bill 8’s provisions regarding abortion. The third, Ramirez v. Collier (No. 21-5592), was argued eight days later and involves the state’s policies regarding members of the clergy in the execution chamber. When this article went to press, decisions in these cases were forthcoming.

The court also granted certiorari in Ysleta del Sur Pueblo v. Texas (No. 20-493), a case about tribal gaming that will be argued this year, and heard oral argument in Houston Community College System v. Wilson (No. 20-804), a First Amendment speech clause case involving a censure resolution issued by a community college’s board against one of its members.

In 2021, the court also decided one case that involved Texas and another that had a direct impact on Texas litigation:

California v. Texas1
This was a challenge to the constitutionality of the Affordable Care Act that Texas, as part of a state coalition, brought alongside two individual plaintiffs. In National Federation of Independent Business v. Sebelius,2 the court held that the federal government lacks power under the Commerce Clause to order Americans to buy health insurance, but it upheld the act’s “individual mandate,” which required all Americans to buy minimum essential coverage, as a valid exercise of Congress’ taxing power. The challengers’ theory in this subsequent case was that, by leaving the “tax” provision on the books but reducing to zero the monetary penalty for failing to purchase minimum essential coverage, Congress rendered the act unconstitutional. The court, however, did not reach that issue or the issue of severability that the parties briefed. It instead concluded that neither the states nor the individual plaintiffs had standing to challenge the provision of the act at issue.

Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Company v. Bandemer3
These consolidated cases about specific personal jurisdiction involved Ford vehicles that were assembled, sold, resold, and involved in wrecks in different states. Ford argued that its contacts with the forums of suit did not “give rise” or “relate to” the plaintiffs’ personal-injury or death claims, depriving the courts of personal jurisdiction. The court disagreed. Building upon its previous holdings in this area, it explained that “[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.” The Texas Supreme Court applied that holding in Luciano v. SprayFoamPolymers.com, LLC,4 a case involving homeowners who were allegedly injured by a Connecticut corporation’s product.

1. 141 S. Ct. 2104 (2021).
2. 567 U.S. 519 (2012).
3. 141 S. Ct. 1017 (2021).
4. 625 S.W.3d 1, 6 (Tex. 2021).

BILL DAVIS is a deputy solicitor general in the Office of the Attorney General of Texas.

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