• February 25, 2015

    by Caroline Cox

    Katrina vanden Heuvel writes in The Washington Post that there is reason to hope for significant criminal justice reform

    In USA Today, Richard Wolf explains the religious discrimination case against retailor Abercrombie & Fitch, which asks to the Supreme Court to consider whether job applicants must ask for religious accommodations or the employer should recognize the need for them.

    David Welna reports for NPR on how the Senate Intelligence Committee report on the CIA interrogation and detention techniques has changed arguments for terrorism suspects at Guantanamo Bay.

    Scott Dodson discusses Justice Ruth Bader Ginsburg and her impact on the Supreme Court and modern jurisprudence at Hamilton and Griffin on Rights.

    In The New York Times, Katie Zernike reports on a New Jersey judge’s ruling that Governor Chris Christie broke the law by not making full pension payments.

    Mark Joseph Stern takes a look in Slate at new plans from state legislatures to tackle the problem of rape on college campuses.

  • February 24, 2015

    by Caroline Cox

    In Slate, Ian Millhiser considers how King v. Burwell shows that “the Supreme Court’s present members may be willing to repeat the sins of the past, arbitrarily ignoring both the text of the law and their own previous decisions in the service of a political agenda.”

    Theda Skocpol writes in The Atlantic that GOP presidential hopefuls should worry if the Supreme Court rules against the government in King v. Burwell.

    Jennifer L. Clark writes at the blog for the Brennan Center that Georgia is considering whether to cut early voting opportunities.

    At Salon, Sarah Gray discusses a recent segment on John Oliver’s “Last Week Tonight,” in which the host took a look at the problems of judicial elections.

    Nina Totenberg of NPR provides an overview of the oral argument for a Supreme Court case on visas for foreign spouses.

  • February 24, 2015
    Guest Post

    by David StraussGerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. 

    *This post is part of the ACSblog King v. Burwell symposium.

    One narrative about King v. Burwell goes like this: diehard opponents of the Affordable Care Act pored over the law and found that, if you take the words of the statute at face value, the ACA will blow up. Those words might have been a mistake, but there they are, and the law is the law. The only escape (on this account) is a kind of plea for mercy: to say that the statute should be read in a way that saves it, even if the words are to the contrary. Some defenders of the ACA have drawn the lesson that a text-focused approach to statutes—the approach that is generally called “textualism” and is today associated with Justice Scalia—is a bad idea generally and that King v Burwell shows why that approach should be abandoned.

    Some of this story is right. The litigation is, in fact, the work of diehard opponents of the statute who are trying to blow it up. There is not a shred of evidence that anyone involved in passing the law thought that it contained such a self-destruct mechanism. And there are some problems with Justice Scalia’s textualism. But there is no need to get into those problems in King v. Burwell. On the contrary: This is a chance for textualists to gloat.

    That’s because the core textualist claim is that the best guide to what Congress wanted to achieve is the words of the statute, not judges’ speculations about Congress’s intentions. King v. Burwell shows that the textualists are right: This time, at least, the words of the ACA tell you all you need to know about what Congress was trying to accomplish. And what the words tell you is that people trying to blow up Obamacare are simply wrong. 

  • February 23, 2015
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Family Professor of Law, Washington and Lee University School of Law.

    *This post is part of the ACSblog King v. Burwell symposium.

    It has become increasingly clear that a Supreme Court ruling for the plaintiffs in King v. Burwell would be a national disaster. A Supreme Court decision that premium tax credits are only available through state-operate exchanges would not only deprive millions of lower-and moderate-income Americans of health insurance, but would put at risk the individual insurance markets in 34 states, while health care providers in those states would lose billions of dollars in revenue. Thousands of Americans would die unnecessarily. It is unimaginable that Congress would have intended this result.

    Yet the plaintiffs, in their reply brief filed on February 18, contend that none of this matters. To their mind, the ACA only permits premium tax credits to be granted by exchanges “established by the State.” They argue, “it is irrelevant whether Congress subjectively intended to impose the condition [that premium tax credits be granted only by state-operated exchanges]; all that matters is that it objectively and reasonably did so.”  Indeed, as we near the end of this litigation and the plaintiffs’ imagined story that Congress intended to limit premium tax credits to state-operated exchanges has largely collapsed, they can only argue that the intent of Congress is irrelevant – all that matters is that the statute does not allow federally facilitated exchanges (FFEs) to grant premium tax credits.

    They can only reach this conclusion, however, by reading the four words they rely on in complete isolation, completely ignoring the rest of the statute. But the Supreme Court has said repeatedly that interpreting a statute requires reading the entire statute, not just isolated phrases. If the Supreme Court follows its own teachings, it must rule for the government.

    Jim Engstrand and I have recently published an article that looks beyond the plaintiffs’ four words to the entire ACA. We identify more than 50 other provisions of the ACA that become anomalous, if not absurd, if the words “established by the State” are read to exclude FFEs. 

  • February 23, 2015
    Guest Post

    by Lauren-Brooke Eisen, Counsel, Justice Program, Brennan Center for Justice

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    For decades, America’s incarceration policies have been questioned both for their result of dwarfing every other nation on the planet in the number of people locked behind bars but also for their vast racial disparities.

    Policies enacted during the height of the War on Drugs in the 1980s and 1990s expanded the use of incarceration as a response to rising crime and fear of crime.  These include mandatory minimums, truth-in-sentencing laws, “three strikes you’re out” laws, federal funding targeted for building more prisons and other sentencing regimes that exponentially expanded America’s prison population.

    The numbers are revealing.  Since the 1970s, incarceration in the U.S. has increased steadily and dramatically.  In fact, since 1990 the U.S. has added about 1.1 million additional people behind bars, almost doubling the nation’s incarcerated population.  These prisoners are disproportionately people of color.

    African-American males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males.  In 2013, almost 3 percent of black males were imprisoned compared to 0.5 percent of white males.  America’s prisons and jails cost more than $80 billion annually – about equivalent to the budget of the federal Department of Education.  This is the phenomenon of mass incarceration.

    A recent report by the Brennan Center for Justice at NYU School of Law provides additional empirical evidence for incarceration’s ineffectiveness at today’s unprecedented levels.  Crime across the United States has steadily declined over the last two decades.  Currently, the crime rate is about half of what it was at its height in 1991.  Violent crime has fallen by 51 percent since 1991, and property crime by 43 percent.