With only a few days remaining before the justices return to the courtroom for the start of the 2021-22 term, the Supreme Court on Thursday issued orders from the justices’ “long conference” on Monday, Sept. 27. The justices normally consider over a thousand cases at the long conference, which is the unofficial end to the justices’ summer recess, and on Thursday they added only five new cases to their merits docket for the upcoming term, including an election-law challenge by Sen. Ted Cruz and a dispute over the flying of a religious flag on a city flag pole.

Federal Election Commission v. Ted Cruz for Senate stems from the Texas Republican’s challenge to a federal election law that imposes restrictions on when and how candidates can repay personal loans that they make to their campaigns. Cruz loaned his 2018 Senate campaign – which at the time was part of the most expensive Senate race in history — $260,000 and then waited to repay the loan in what both sides agree was a move intended to allow a challenge to the law. Cruz went to federal court in Washington, D.C., where he argued that the repayment restrictions violate the First Amendment.

A three-judge district court (which Congress has designated to hear disputes to the law’s constitutionality) agreed. It reasoned that the restrictions place a burden on political speech, and that the federal government had not provided an adequate justification for that burden. The FEC, the court observed, had “not identified a single case of actual quid pro quo corruption” involving loan repayments.

The Biden administration appealed to the court in July, telling the justices that the law imposes only “a narrow timing restriction” but is important to avoid “a heightened risk of actual and apparent quid pro quo corruption.”

The justices granted four other petitions for review:

• In Cassirer v. Thyssen-Bornemisza Collection Foundation, the justices agreed to decide whether a federal court considering state-law claims brought under the Foreign Sovereign Immunities Act should apply federal common law or the forum state’s choice-of-law rules to determine what substantive law governs the claims. The question comes to the court in a case filed to recover a painting, now in a Spanish museum, by Camille Pissarro that petitioner David Cassirer claims was stolen from his relatives by the Nazis.
• In Boechler, P.C. v. Commissioner of Internal Revenue, the justices will weigh in on whether the 30-day time limit to file a petition for review in the Tax Court of a notice from the IRS is a jurisdictional requirement – so that the Tax Court lacks the power to review the petition when it is filed late – or instead can be extended when circumstances warrant.
• Congress passed the Fair Sentencing Act of 2010 to reduce the disparity between sentences for offenders convicted of distributing crack cocaine and those convicted of distributing powder cocaine. Eight years later, it passed the First Step Act, which gives federal district courts power to resentence offenders in light of the changes in the Fair Sentencing Act. The question in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the First Step Act, a district court must or may consider intervening developments, or whether such developments only come into play (if at all) after courts conclude that a sentence reduction is appropriate.
• In Shurtleff v. City of Boston, the justices will return to the issue of religion in public places. The question arises in a lawsuit filed by a Christian group after the city of Boston denied the group’s request to raise its flag – bearing a Latin cross – on a city hall flag pole. The city, the group contends, routinely allows other groups to use the flag poles, for everything from the Turkish flag to celebrate “Boston pride” and the observance of Juneteenth. The group went to court, arguing that the denial of its application violates the First Amendment. Both the district court and the U.S. Court of Appeals for the 1st Circuit ruled for the city, prompting the group to come to the court, which granted review on Thursday.

More orders from Monday’s conference are likely on Monday, Oct. 4, at 9:30 a.m.

This post is also published on SCOTUSblog.