• November 17, 2014

    by Caroline Cox

    Ken Armstrong writes for The Marshall Project about how poor lawyering and inflexible law  lead to lost appeals for condemned men.

    At ACSblog, Jeremy Leaming discusses King v. Burwell, and characterizes it as “another tiremsome, political act.”

    At the blog for the Constitution Center, Doug Kendall and Brianne Gorod consider the opinion of Judge Jeffrey Sutton, the first federal appellate judge to uphold a state ban on same-sex marriage, and how it conflicts with Loving v. Virginia.

    Eric Segall argues in Slate that the justices of the Supreme Court should be considered politicians, not judges.

  • November 14, 2014

    by Jeremy Leaming

    First, the attack on Obamacare found in King v. Burwell is one the Supreme Court did not need to hear, as put well in a recent piece by Linda Greenhouse, a contributing columnist for The New York Times. Second the argument being advanced against the Affordable Care Act is one that only the high court’s seemingly unmovable conservatives could or would buy into. It’s a politically driven case, of course, like the other attempts by the right-wing political movement to destroy health-care reform. The right-wing movement instead calls for coddling the privileged and works to make life exceedingly difficult for the vast majority of Americans. If we really need another example of the Supreme Court acting in the worst interests of the nation, we have one – in its decision to hear King v. Burwell. If you need more examples of the high court acting against the interests of the nation time and again, see Erwin Chemerinsky’s new book, The Case Against The Supreme Court.

    On King v. Burwell, see the following spot-on pieces about how argument in the case is ridiculous:

    Greenhouse’s “Law in the Raw,” from The New York Times’ opinion pages, where she writes that it “would take an agenda-driven act of judicial will” for the court to ignore long-held precedent – Chevron v. National Resources Defense Council, Inc. – to uphold the argument in King v. Burwell.

    E.J. Dionne Jr.’s “Will Obamacare separate Scalia from his principles?” from The Washington Post, where he notes even “many neutral legal analysts” were stunned that four justices would even “take up an absurd legal challenge to the health-care law,” and especially before seeing if a circuit split would stand.

    Timothy S. Jost's "The Truth and Myth Behind Latest Challenge to Health Care Law" from ACSblog, where the Washington and Lee University School of Law professor writes that Supreme Court justices might ignore congressional intent, but "cannot ignore the text" of Obamacare.

    And Yale Law School professor Abbe R. Gluck’s piece at SCOTUSblog, “The grant in King – Obamacare subsidies as textualism’s big test.”

  • November 14, 2014

    by Rebekah DeHaven

    The Senate returned this week following the midterm elections and its first order of business was to consider two district court nominations. On November 12, the Senate voted to invoke cloture on Randolph Moss (nominated to the U.S. District Court for the District of Columbia) and Leigh Martin May (nominated to the U.S. District Court for the Northern District of Georgia). Senator Reid (D-Nev.) also filed cloture on Eleanor Ross, Mark Cohen, and Leslie Abrams, all nominated to the Northern District of Georgia. On November 13, the Senate voted to confirm Moss, 54-45, and May, 99-0.

    Also on November 12, President Obama made four new judicial nominations: Dale Drozd to the U.S. District Court for the Eastern District of California, LaShann Moutique DeArcy Hall to the U.S. District Court for the Eastern District of New York, Luis Felipe Restrepo to the U.S. Court of Appeals for the Third Circuit, and Kara Farnandez Stoll to the Federal Circuit. 

    On November 13, the Senate Judiciary Committee held a hearing on Joan Marie Azrack (U.S. District Court for the Eastern District of New York), Loretta Copeland Biggs (U.S. District Court for the Middle District of North Carolina), and Elizabeth K. Dillon (U.S. District Court for the Western District of Virginia). The Senate Judiciary Committee was also scheduled to vote on nine nominees, but they were held over at the request of Senator Grassley (R-Iowa).

  • November 14, 2014

    by Caroline Cox

    In The Washington Post, E.J. Dionne Jr. considers whether the latest Supreme Court challenge to the Affordable Care Act, King v. Burwell, will force Justice Scalia to separate from his principles.

    John Harwood of CNBC asserts that “the justices have placed themselves in a political vise grip” by accepting to hear the legal challenge to Obamacare.

    At SCOTUSblog, Abbe R. Gluck also examines King v. Burwell and argues the case “is about the proper way to engage in textual interpretation.”

    In other Supreme Court news, Dahlia Lithwick asserts in The New Republic that there is not enough diversity of experience among the Supreme Court justices.

    At Hamilton and Griffin on Rights, Janai Nelson looks at the important role of race in the Alabama redistricting cases. The ACS panel discussion of the cases from earlier this week can be found here

  • November 13, 2014
    Judging Statutes
    Robert A. Katzmann

    by Brianne Gorod (@BrianneGorod), Appellate Counsel at the Constitutional Accountability Center and former clerk for the Hon. Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit. Gorod interviewed Katzmann about his new book, Judging Statues.

    The Supreme Court made lots of headlines recently when it decided to hear King v. Burwell, a case about the meaning of the Affordable Care Act.  It’s a good reminder: although much of the talk about the federal courts focuses on constitutional questions, much of the work the federal courts do involves statutory ones.  Indeed, for Supreme Court justices and other federal judges, a significant part of their job—and an incredibly important part—is attempting to understand and give meaning to the laws passed by Congress. 

    In his new book Judging Statutes, Robert A. Katzmann, Chief Judge of the United States Court of Appeals for the Second Circuit, provides readers with insight into how federal judges can—and should—go about that task.  As Judge Katzmann explains, “[o]ver the last twenty-five years, there has been a spirited debate in the courts, Congress, and the academy about how to interpret federal statutes,” with Justice Scalia championing the view that courts should “look to . . . the words of the statute, and to virtually nothing else.”  In his book, Judge Katzmann provides a compelling defense of the alternative view, arguing that courts should look to legislative history to help understand and give meaning to the laws that Congress enacts.  As he puts it, “In our constitutional system in which Congress, the people’s branch, is charged with enacting laws, how Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined.”

    The work has already received considerable attention—for example, in Justice Stevens’ essay in The New York Review of Books, Jeffrey Toobin’s column in The New Yorker, Norman Ornstein’s column in The Atlantic, Tony Mauro’s story in the National Law Journal, Ronald Collins’ post on the blog Concurring Opinions, and on Brian Lamb’s C-Span Q & A program.