Supreme Court

  • August 22, 2014

    by Caroline Cox

    Marcia Coyle of The National Law Journal interviews Justice Ruth Bader Ginsburg, discussing racial problems in the U.S., major rulings, and law schools.

    Bob Herbert writes for Jacobin on the likelihood of another Trayvon Martin or Michael Brown: “The deepest concerns of blacks are seldom acted upon in any sustained, effective way. Most of the time, they are not even taken seriously.”

    In The New York Times, Claire Cain Miller explains how part-time pay hurts working mothers.

    Sarah Jaffe, Mariame Kaba, Randy Albelda and Kathleen Geier write in The Nation on the need to end the demonization of poor mothers.

    Carson Whitelemons of the Brennan Center for Justice explains how voting rights laws in Ferguson block citizens from having a fair say.  

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • August 5, 2014

    by Caroline Cox

    Adam Liptak of The New York Times discusses Justice Ruth Bader Ginsburg’s recent comments on the Supreme Court’s different treatment of cases involving gay people and women. Justice Ginsburg comments suggest that the five-justice conservative majority does “not understand the challenges women face in achieving authentic equality.”

    In Slate, Emily Bazelon explains the recent decisions by the U.S. Court of Appeals for the Fifth Circuit and the U.S. District Court for the Middle District of Alabama that blocked major restrictions on abortion clinics. Despite these pro-choice victories, the legal fight against allegedly burdensome regulations on abortion clinics remains an uphill battle as a Texas law goes before the Fifth Circuit.

    Robert Barnes of The Washington Post reports that a Florida judge has found two of the state’s congressional districts unconstitutional. The decision, one of several challenging gerrymandering throughout the country, sets the stage for a possible Supreme Court case in the fall. 

    Shawn DuBravac, the chief economist of the Consumer Electronics Association, writes for the Harvard Business Review that the Supreme Court’s view on the Fourth Amendment is increasingly taking into account changing technology and the importance digital privacy.

    The New York Times’ James Barron provides the obituary for James S. Brady, White House press secretary for President Ronald Reagan and a major champion of gun control legislation.

    The Alliance for Justice published a comprehensive report detailing each federal case on the legality of a same-sex marriage ban. 

  • August 4, 2014

    by Caroline Cox

    In The Washington Post, Maurice Possley of The Marshall Project writes that new evidence raises doubts about the 2004 Texas execution of Cameron Todd Willingham. “This case could be the first to show conclusively that an innocent man was put to death in the modern era of capital punishment.”

    Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law for the University of Chicago,  former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, explains in The Daily Beast that the flood of judicial rulings holding bans on same-sex marriage unconstitutional are not the result of public opinion shifts. Rather, the Supreme Court opened the door to these decisions long before support for gay marriage became more mainstream.

    Collin Eaton, writing for The Houston Chronicle, reports that BP has asked the Supreme Court to reverse lower court rulings on the approved settlement class for the 2010 Deepwater Horizon disaster. The petition asserts that claimants should have to show that their losses were directly tied to the spill.

    The Tennessean’s Brian Haas reports on the Tennessee Supreme Court retention election, noting the large amount of money conservative groups have spent to campaign against the justices.

    Christine Vestal of Stateline discusses the challenges many state health insurance exchanges face in light of the Halbig v. Burwell ruling. Consumers in 36 states risk losing future premium subsidies if the Supreme Court rules in favor of Affordable Care Act opponents. 

  • July 31, 2014

    by Ellery Weil

    Andrew Prokop at Vox reports on the House of Representatives’ plan to sue President Obama, and what that means in a larger historical context.

    Politico’s Josh Gerstein reports on Supreme Court Justice Ruth Bader Ginsburg’s interview with Katie Couric, where the 81-year-old justice revealed she does not intend to step down in the near future.

    At The Volokh Conspiracy, Dale Carpenter looks at the possible role that animus could play in potential same-sex marriage litigation before the Supreme Court.

    In a piece for Salon, Katie McDonough writes about strong new pushback on recent efforts to curtail reproductive rights, including a new measure introduced by Massachusetts Gov. Deval Patrick to work around the recent ban on abortion clinic buffer zones.

    Writing for The Atlantic, Connor Friedersdorf discusses the legality and ethics of the NSA suppressing former head Keith Alexander’s financial disclosures as he transitions into the private sector.