Supreme Court

  • June 25, 2015
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    In a debate with Professor Jonathan Adler, one of the architects of the plaintiffs’ litigation strategy in King v. Burwell, in the Pennsylvania Law Review, I began as follows: “Many issues, both constitutional and statutory, that reach the United States Supreme Court raise difficult and complex interpretive and normative questions. . . . The King case, however, is different.”

    It was different, I argued, because Congress explained exactly what would happen if states refused to create their own health insurance exchanges (which 36 states refused to do). In that circumstance, under Section 1321 of the Act, the federal government was required to establish “such exchange,” as the ones established by the states. As the Court today said: “By using the phrase ‘such Exchange,’ [Section 1321] instructs the Secretary to establish and operate the same Exchange that the State was directed to establish.” That kind of exchange quite obviously was authorized by the law to offer federal subsidies, and that is exactly what today’s opinion held.

    If there were any doubts at all about the strength of the legal arguments made by the government and its supporters, Justice Roberts put them to rest by not relying on the Chevron rule of deference that says all reasonable agency interpretations of ambiguous statutory language should be upheld, but rather by siding with the government as a pure matter of law. Deference was not required, according to the Chief, because this was one of those “extraordinary cases” where Congress is unlikely to have intended that courts defer to agency decisions. This part of the opinion may well prove problematic in the future when courts evaluate agency decisions but today demonstrates that at least six justices of the United States Supreme Court were willing to say that Congress rather clearly and obviously expected federal subsidies to be available on federal as well as state exchanges.

    In addition to the pure legal analysis, the majority opinion also said that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

    This language, while unnecessary to the holding in the case, may be a strong signal from the justices that it will not undo through legal means the Affordable Care Act. There are, after all, a number of challenges to the ACA still pending in the lower courts, including a baseless Origination Clause challenge to the entire law. Maybe, hopefully, the justices are indicating that the fate of the ACA rests in the political arena, not in partisan challenges dressed up as legal cases. At the end of the day, that may be the best news of all.

  • June 25, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This piece originally appeared at The Huffington Post

    For proponents of the Affordable Care Act, today's Supreme Court decision upholding federal subsidies on federally created exchanges is cause to celebrate. Once again, the ACA has survived a potentially fatal challenge. The significance of today's decision, however, also extends into the future. Because of how the Supreme Court reasoned in the case, a future president opposed to the ACA (including all of the current crop of GOP contenders) will not be able to reinterpret the law to deny subsidies to low- and middle-income taxpayers in the future.

    One of the arguments rejected by Chief Justice John Roberts' majority decision is that the ACA is ambiguous and that, as a result, the Court should defer to the construction of the relevant administrative agency, here the Internal Revenue Service. (The IRS read the statute to allow subsidies.) Robert said it was the justices' job to read the statute for themselves without deference to the IRS. While the court rejected the administration's argument on this point, Obama's loss bodes well for the long-term viability of the Affordable Care Act.

    If the court had deferred to the IRS construction of the statute, the next president, should he or she be opposed to subsidies, could have pushed the IRS to reconsider the law. The IRS could have determined then that the ACA did not make subsidies available on the federally created exchanges. That would have gutted the law -- even without opponents having to pass anything from Congress.

    Chief Justice Roberts' decision eliminates the possibility. By insisting that the subsidy question was too important for the court to defer to the agency's interpretation, Roberts betrays his usual preference for judicial supremacy and skepticism of the executive branch. Yet in doing so he takes the subsidy question off the table for future presidents. A President Rubio or Bush won't be able to reinterpret the ACA to deny subsidies on the federally created exchanges. The ACA has now been authoritatively and conclusively read by the Supreme Court to allow subsidies.

    Chief Justice Roberts has not only saved Obamacare once again. He's also given the law strong protection against future attack.

  • June 23, 2015
    The Grasping Hand
    "Kelo v. City of New Lond" and the Limits of Eminent Domain
    Ilya Somin

    by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

    Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for  “public use,” the Court ruled that  virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.

    In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).

    These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to  blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
    The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.

  • June 22, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of the Center for Gender and Sexuality Law at Columbia Law School and Executive Vice President for University Life at Columbia University.

    *This post originally appeared on The HuffPost Blog.

    As the U.S. Supreme Court considers taking up another case related to abortion rights, now is the time to reexamine the old-chestnut narrative that abortion rests solely on a tenuous right to privacy and take heed that the Court ‒ yes, this Court ‒ has a long track record of protecting not only privacy but also the liberty that is part of such deeply personal decision-making.

    Over the last several decades, a popular, but inaccurate, narrative has taken hold about the constitution and abortion. Many argue that the right to privacy, set out in Roe v. Wade in 1973, is the sole constitutional protection for a woman's right to end a pregnancy. But this analysis rests on a limited and restrictive understanding of the law.

    The right to abortion is grounded in the Fourteenth Amendment, which protects all of us from undue government interference with our liberty interests. More than 20 years ago, the Supreme Court made this clear when it reaffirmed the constitutional right to abortion in Planned Parenthood v. Casey. There, the Court explained that this right was rooted in a woman's Fourteenth Amendment liberty right, which covers decisions about marriage, procreation, contraception, family relationships, child rearing and education. 

    In the words of the linchpin justices, Souter, O'Connor and Kennedy:

    These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

    At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

  • June 19, 2015

    by Nanya Springer

    For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead.  Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more.  Here are some highlights with links to high-quality video for those who missed the live event.

    Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

    Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

    Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

    U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

    U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”