On Monday we expect the Court to issue ... (click to view)
Editor's Note :
On Monday we expect the Court to issue orders from its December 11 Conference at 9:30 a.m., followed by one or more opinions in argued cases at 10 a.m. We will begin live-blogging at 9:25 a.m.
Justice Anthony Kennedy picks up a couple of awards, Justice Stephen Breyer continues promoting his book on international law and the Supreme Court, and Chief Justice John G. Roberts, Jr., reflects on his role as the Court’s leader in this overview of the Justices’ November and December events.
NOTE TO READERS: Next week the blog will publish a multi-part symposium on the seven cases the Supreme Court will hear this Term on the latest challenge to the Affordable Care Act: a protest by religious non-profits arising from the law’s birth-control mandate. This post provides an overview of the cases and the main arguments by the two sides. The following posts will provide varied perspectives on the significance of the controversy.
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Assuring that the legal threats to the new federal health care law will continue to unfold in the final year of President Barack Obama’s term in the White House, the Supreme Court turns next to the plea of religious non-profit schools, colleges, hospitals and charities to be exempted from any role in carrying out the law’s promise of free contraceptives to working women and some students. It is a high-stakes sequel to the 2014 ruling giving some for-profit companies an exemption from that mandate, and it probably will further clarify church-state relationships in America.
This will mark the fourth time the Court has taken up a challenge to the Affordable Care Act: the Court in 2012 upheld the law’s requirement that nearly all individuals must have health insurance or pay a penalty (National Federation of Independent Business v. Sebelius); in 2014 it ruled that for-profit businesses owned by a small circle of religiously devout families or investors could not be required to provide access to contraceptives (Burwell v. Hobby Lobby Stores); and in 2015 it upheld the availability of government subsidies for lower-income people seeking health insurance on all marketplaces or exchanges across the country (King v. Burwell).
Actually, the government has on its docket a fifth challenge to the act, but it has not yet agreed to review that case (Sissel v. Department of Health & Human Services). It involves a claim that all of the tax provisions in the act are unconstitutional because they did not originate in the House of Representatives, as the Constitution requires for revenue-raising legislation. When the Senate passed the act, it did so by substituting an entirely new text for a less important bill that did originate in the House. Lower courts have rejected that challenge. The Court may act on it early in the new year and, if it promptly granted review, that case, too, could be decided in the current Term.
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court.
The Court heard arguments this week in:
In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test. The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota. Thirteen states make it a crime to refuse to take a drunk-driving test.
The Court also granted review of three other cases: a plea to clarify when a landowner can sue to challenge a government ruling that a tract of land contains U.S. waters protected from pollution under the Clean Water Act (U.S. Army Corps of Engineers v. Hawkes Co.); a test of whether it violates the federal debt collection laws for lawyers appointed by a state attorney general to collect debts using the attorney general’s official letterhead (Sheriff v. Gillie), and a dispute over whether a prison inmate is excused from attempting administrative remedies for a grievance if the prisoner believed, wrongly, that he had already done so (Ross v. Blake).
Coverage of and commentary on the challenge to the University of Texas at Austin’s consideration of race in its undergraduate admissions process come from Michael Bobelian for Forbes, Jess Bravin of The Wall Street Journal, the editorial board of The Wall Street Journal, Roger Clegg at Inside Higher Ed, Garrett Epps of The Atlantic (which is also hosting a reader debate on the issue), and Steven Mazie at Big Think.
Commentary on Evenwel v. Abbott, the “one person, one vote” challenge to the state legislative maps in Texas, comes from the editorial board of The New York Times, while at Dubitante Justin Sadowsky looks back at the Court’s December sitting more generally. Continue reading »
The petition of the day is:
Issue: (1) Whether a state violates the First Amendment by penalizing a defendant for the content of its speech without requiring proof that the speech contains a knowing or reckless falsehood; (2) whether the Federal Food, Drug, and Cosmetic Act preempts a state enforcement action that serves no compensatory purpose and instead simply seeks to penalize a pharmaceutical company for actions that are comprehensively regulated and overseen by the Food and Drug Administration; and (3) whether the imposition of a $124 million civil penalty, without any showing of actual deception, reliance, or injury, violates the Excessive Fines Clause.
John Elwood reviews Monday’s relisted cases.
Swamp the Court with cert. petitions,
Re re re re re re re re list!
‘Tis a holiday tradition,
Re re re re re re re re list!
Don the jurists’ black apparel,
Re re re re re re re re list!
While we ruin Christmas carols,
Re re re re re re re re list!
‘Tis the season for making lists, dear readers! We’ll leave it to you to check them twice, if you stay awake that long.
Let’s begin by breaking with two cherished Relist Watch traditions: starting with successful petitions, and burying the lede. Much of the ink (and electrons) spilled Monday concerned not the five petitions the Court took but the one it didn’t. Friedman v. City of Highland Park, 15-133, which originated from the Second (not Second Amendment) City, brought a constitutional challenge to a city ordinance banning assault weapons and high-capacity magazines. After relisting the case six times, the Court denied cert. over a dissent by Justices Clarence Thomas and Antonin Scalia, who declared that they would “grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.” The denial continues the Court’s general pattern of passing on Second Amendment challenges to gun control laws since the Court decided McDonald v. City of Chicago in 2010 – a trend that some Supreme Court ignorati suspected might doom this case.
Anticipation is high for the last argument before the holiday break, and one of the biggest cases of the term, Fisher v. University of Texas at Austin.
Abigail Fisher, the white student who is challenging the use of race in admissions at the university which rejected her application in 2008, is here again, as she was for the first round of arguments in her case in October 2012.
Fisher, now a twenty-five-year-old financial analyst in Austin, ended up graduating from Louisiana State University, which will figure in the arguments a little later. Her lawyer, Bert Rein of Washington, will tell the Court that the consequences of her “nonadmission” to UT-Austin, where her sister and father had attended, including having to go to “an alternative university.”
Yesterday’s oral arguments in Fisher v. University of Texas at Austin, the challenge to the university’s consideration of race in its undergraduate admissions process, continue to garner coverage and commentary. Molly Runkle rounded up early coverage and commentary for this blog yesterday, I covered the arguments in Plain English for my own blog, and Mark Walsh provided this blog with a “view” from the Courtroom. Other coverage comes from NPR’s Nina Totenberg, Michael Lindeberger for The Dallas Morning News, and Greg Stohr for Bloomberg Politics (with another story focusing on Justice Antonin Scalia’s comments). Commentary on yesterday’s argument comes from Ruthann Robson at the Constitutional Law Prof Blog, Jonathan Keim at the National Review’s Bench Memos, and David Gans at the New Republic. Continue reading »
This morning the Court heard argument in Fisher v. University of Texas at Austin, in which it is considering whether the university’s consideration of race in its undergraduate admissions process violates the Constitution. Lyle Denniston covered the argument for this blog.
Other early coverage of the argument comes from Pete Williams of NBC News, Lydia Wheeler of The Hill, Ariane de Vogue of CNN, Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin, Brent Kendall, and Louise Radnofsky of The Wall Street Journal, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, Jaclyn Belczyk at Jurist, Sam Baker at National Journal, Mark Sherman of the Associated Press, Chris Geidner of Buzzfeed, Josh Gerstein and Kimberly Hefling of Politico, Nina Totenberg of NPR, Daniel Fisher at Forbes, Ralph Haurwitz at My Statesman, Greg Stohr for Bloomberg View, Tierney Sneed at Talking Points Memo, and Mark Walsh at Education Week.
Early commentary comes from David Rivkin and Andrew Grossman at Cato Institute, which also features commentary from Ilya Shapiro, Debra Cassens Weiss of ABA Journal, Ian Millhiser at ThinkProgress, Ilya Somin at the Volokh Conspiracy, Libby Nelson at Vox, Cristian Farias of Huffington Post, Stephanie Mencimer of Mother Jones, Lincoln Caplan for The New Yorker, Lisa Soronen at The Council of State Government’s Knowledge Center, with additional analysis, Kimberly West-Faulcon at The Grio, Elizabeth Slaterry at The Daily Signal, Lilli Petersen at Refinery 29, and Amanda Marcotte at Salon.
As part of the Antonin Scalia Lecture series at Harvard Law School, Justice Elena Kagan discusses the reading of statutes.
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