Supreme Court

  • February 19, 2016

    by Nanya Springer 

    In The Huffington Post, ACS President Caroline Fredrickson urges the U.S. Senate to fulfill its constitutional duty and “give fair and prompt consideration” to any Supreme Court nominee.

    ACS Director of Strategic Engagement Jill Dash comments to Paul Waldman in The Washington Post about the improbability that a new Supreme Court would immediately overturn high-profile decisions. “The four more liberal justices currently on the Court take precedent and stare decisis seriously,” adds ACS Issue Brief author Samuel Bagenstos.

    Perry Cooper at Bloomberg BNA says class actions may see a Renaissance in the near future and notes ACS Board member Erwin Chemerinsky’s prediction that Spokeo Inc. v. Robins will result in a 4-4 split decision.

    In the Emory Corporate Governance and Accountability Review, Caroline Poplin examines the pharmaceutical industry’s misuse of First Amendment doctrine, and ACS Board member Reuben Guttman, with Paul J. Zwier, examines wrongful marketing and pricing practices.

  • February 19, 2016

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    This post originally appeared on Hamilton and Griffin on Rights.

    Catholics for Choice joined nine other Catholic organizations in filing a “friend of the court” brief with the Supreme Court of the United States. The amicus brief lifts up the voices of the Catholic laity, workers, women, children and LGBT people who would be affected by the Supreme Court ruling in the Zubik v. Burwell case.

    Zubik v. Burwell is consolidated with six other cases brought by members of the Catholic hierarchy and allied organizations in the latest round of challenges to the birth control provisions in the Affordable Care Act. If the Supreme Court were to rule in favor of the bishops’ demands, hundreds of thousands of employees at religiously-affiliated nonprofit organizations could be deprived of their conscience rights, religious freedom and access to healthcare.

    Jon O’ Brien, president of Catholics for Choice and lead among the amici, said, “Where you are employed should not override your religious freedom nor limit your access to healthcare. The majority of Catholics use and support contraceptive coverage. The majority of Catholics support real religious liberty for all. The majority of Catholics would be disappointed by a ruling in favor of the bishops.”

    Continued O’Brien, “We filed this brief because we are all concerned that if the bishops and their allies get their way, it will only be the beginning. The bishops have shown their desire to circumvent any law to which they object. If the courts rule in their favor, they could start opposing health insurance benefits for same-sex couples and their dependents, or refuse maternity leave to women who have children using in vitro fertilization, or deny gay and lesbian parents the right to adopt a child.”

    Marianne Duddy-Burke, executive director of DignityUSA, a member of the coalition, said, “We believe it is absolutely essential that the petitioners not prevail in this case. We are already seeing employees in same-sex marriages being refused employment, fired and denied health benefits that are given to their colleagues—all on the basis of employers’ religious beliefs. We don’t believe the law supports this and hope the court upholds the equality of all employees.”

    Jim Fitzgerald, executive director of Call to Action, a third member of the coalition, said, “The majority of Catholics across the country support equality, inclusivity and social justice. We join them in rejecting discrimination on the basis of sexual identity or conscience-based decisions about healthcare. We lift up the rights of workers to follow their God-given conscience when making deeply personal decisions around their reproductive health.”

    “Catholics for Choice is proud to stand with our partners to represent the majority of Catholics who believe that imposing religious beliefs on others is wrong,” concluded O’Brien. “To use the Catholic faith to deny employees equal access to healthcare is not the freedom from religion guaranteed by our Constitution. What the bishops want is simply state-sponsored discrimination. We support the rights of the workers to follow their conscience when making a decision about contraception, and we oppose the hierarchy’s attempts to interfere with anyone’s personal decisions.”

    Oral arguments for Zubik v. Burwell will be heard by the Supreme Court on March 23.


  • February 16, 2016
    Guest Post

    by Erin Ryan, professor of law, Florida State University College of Law. Professor Ryan  is the author of many scholarly works, including Federalism and the Tug of War Within (Oxford, 2012).

    Last week, the Supreme Court controversially stayed implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while 29 states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. The rule is designed to reduce emissions from coal-fired plants, the dirtiest form of energy production, through a mix of stricter limits on existing plants, measures to increase energy efficiency, and other mechanisms that encourage producers to shift from coal to cleaner renewables and natural gas.

    The CPP provides for substantial flexibility in how reduction targets may be attained within states, allowing states to choose among various options proposed in the rule to come up with their own proposals or to opt for federal regulation in lieu of state oversight. Nevertheless, energy generators heavily invested in coal argue that implementation will require expensive changes.

    It therefore surprised no one that states with the most coal-dependent economies, and with political leadership most sympathetic to the coal industry, are challenging the CPP in court. They argue, among other things, that EPA is unauthorized to regulate power plants this way, that the standards imposed by the rule did not take fair account of the costs of implementation, and that the final rule was insufficiently related to the proposed rule on which the public provided comment. Eighteen other states are supporting the rule, together with environmental groups and some power companies (including utilities in some states that are challenging the rule). Proponents contend that federal environmental laws have always targeted energy production, a primary source of regulated pollutants, and that the CPP legitimately follows from established legal authority, the regulatory record, and the proposed rule.

    EPA always knew the CPP would be litigated, and so the lawsuits came as no surprise. But the Court’s move to stay the rule—before the issues had even been aired in open court—has apparently surprised everyone. The one-page order made no judgment on the merits of the case, but it suspends implementation of the rule while the litigation runs its full course, a process expected to take at least 18 months. The Court split along ideological lines in issuing the stay, with the five more conservative justices voting for the stay over opposition by the four more liberal justices. Just weeks earlier, the D.C. Circuit declined to issue the plaintiffs’ request for the stay, following uniformly applied federal judicial norms—until now.

  • February 11, 2016
    Guest Post

    by Justin Pidot, Associate Professor of Law, University of Denver Sturm College of Law

    The U.S. Supreme Court this week issued an order staying implementation of the Clean Power Plan (“CPP”) -- the Obama administration’s signature action to address climate change -- until the courts decide the merits of challenges to the plan brought by industry groups and states.  It’s quite a surprise. The Supreme Court very rarely stays a regulation while it remains before a court of appeals. 

    Granting a stay is not the same as deciding the case, but the order suggests that five justices have serious concerns about the CPP.  I suspect those concerns may boil down to this: The coal industry, likely the primary target of state implementation of the CPP, is too big for EPA to regulate absent an express congressional directive.

    Where would this notion of too big to regulate come from?  The Court has signaled increasing skepticism of agency interpretations of statutes that the justices believe construe agency authority too expansively or in a way that may be of economic significance.  The Court has invoked this mood—even if I can’t quite call it a principle—in at least three recent decisions.

    In Utility Air Regulatory Group v. EPA, the Court held that EPA lacked authority to regulate certain sources of greenhouse gases under a Clean Air Act program because it would involve a “transformative expansion” in the agency’s authority.  In Michigan v. EPA, the Court invalidated another Clean Air Act rule at least in part out of concern for the costs the rule would impose.  And in King v. Burwell, the Court declined to defer to an agency’s interpretation of the Affordable Care Act because the issue was one of “economic and political significance.”  (I have previously discussed this trend here and here.)

    These cases suggest a new rule of administrative law that inhibits big agency actions that tackle big problems. Under such a rule, the CPP may fall because climate change is a global problem with many contributors and EPA is attempting to engage in relatively significant action in response.  In other words, the Court could hold that EPA can only tinker around the edges of climate change unless Congress clearly says otherwise, a holding that would be particularly ironic since the Court’s decision in Massachusetts v. EPA forced the agency to get into the climate change business in the first place. 

  • February 10, 2016
    Guest Post

    by Patrick Parenteau, professor of law, Vermont Law School  

    In a move that stunned even the most seasoned court watchers, the conservative majority of the U.S. Supreme Court has blocked the Environmental Protection Agency’s Clean Power Plan, which seeks to reduce carbon pollution from coal-fired power plants. The unsigned order, without any explanation, puts a hold on the rule pending the outcome of proceedings currently underway in the D.C. Circuit, which had earlier denied a stay. Justices Ginsburg, Breyer, Kagan and Sotomayor voted against the stay.

    This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

    Some have speculated that the majority may be reacting to what happened last term in Michigan v. EPA (the mercury rule case). By the time the case got to the Court, over two years had passed and 80 percent of the industry had already complied with it. Thus, when the Court found a flaw in EPA’s cost analysis, it was faced with a fait accompli which no doubt irked the conservatives. But it would be a sad comment on the Court’s integrity if the decision to issue a stay was motivated by pique or distrust of the agency.