In a potentially crippling blow to the new federal health care law, a federal appeals court ruled on Tuesday that the government may not provide subsidies to encourage people to buy health insurance on the new marketplaces run by the federal government.  The U.S. Court of Appeals for the District of Columbia Circuit, in a two-to-one decision, ruled that those subsidies are only available on “exchanges” run by state governments.  The two opinions in the ruling and the dissenting opinion are here.

As of now, only fourteen states and Washington, D.C., operate those insurance marketplaces, and the federal government has stepped in to provide the same facility in the other thirty-six states.  Under the new decision, striking down a two-year-old government regulation, subsidies will be confined to the state-run exchanges.

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Tuesday round-up

By on Jul 22, 2014 at 7:49 am

Yesterday the U.S. Court of Appeals for the Ninth Circuit ruled in favor of a death row inmate who is seeking additional information about the drugs that Arizona intends to use to execute him; the state has now indicated that it plans to ask the Supreme Court to step in.  Astrid Galvan and Jim Salter report for the Associated Press (via ABC News), while Kent Scheidegger discusses the case at Crime and Consequences.    Continue reading »


Petition of the day

By on Jul 21, 2014 at 10:10 pm

The petition of the day is:

Kirby v. Marvel Characters, Inc.

Issue: (1) Whether a court can constitutionally take copyrights to works originally owned and authored by an independent contractor and hand them to a private party by judicially re-designating them “works for hire;” (2) whether “employer” under the Copyright Act of 1909 can be judicially extended beyond conventional employment to independent contractors, when this contradicts its common law meaning, binding Supreme Court precedent and longstanding canons of statutory construction; and (3) whether “work for hire” can be determined based on post-creation contingencies, like discretionary payment, when authorship and ownership of a copyrightable work, including “work for hire,” vests at inception.


The ACLU’s history and mission, the difference between civil “liberties” and civil “rights,” and whether the success of marriage equality has been quick.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

Posted in Everything Else

Revised October calendar

By on Jul 21, 2014 at 2:59 pm

The Court today issued a revised calendar for the oral argument sitting that begins on October 6.  (Lyle discussed the October sitting calendar in more detail in a post earlier this month.)  Two cases have switched places:  North Carolina Board of Dental Examiners v. Federal Trade Commission, which was originally scheduled for October 8, will now be argued on October 14, while Warger v. Shauers — originally scheduled for October 14 — will now be argued on October 8.

Posted in Merits Cases


By on Jul 21, 2014 at 12:04 pm

Although the round-up was on hiatus last week, news related to the Court was not.  Last week the U.S. Court of Appeals for the Fifth Circuit again rejected a challenge to the undergraduate admissions policies of the University of Texas at Austin.  The decision, which followed the Supreme Court’s ruling in the case a little over a year ago, sets up the prospect that the case could again return to the Supreme Court in the upcoming Term.  Lyle Denniston reported on the divided decision for this blog; other coverage comes from Sahil Kapur of Talking Points Memo,

Wrap-ups of various aspects of the October Term 2013 continue.  In The New Republic, Simon Lazarus describes “a libertarian streak in the justices’ opinions” this Term, while at Moyers & Company Bill Moyers reviews the Term with Linda Greenhouse and Dahlia Lithwick.  In The National Law Journal (registration required), Tony Mauro reviews the Court’s business docket and concludes that “the aggressive strategy business advocates employed did not always work.”  Mauro’s story relies in part on an infographic on the Court’s business docket compiled by Lauren Goldman; that infographic is available here.  But at Jost on Justice, Kenneth Jost looks at the record of the U.S. Chamber Litigation Center in business cases during the October Term 2013 and concludes that, “[w]hatever the exact count may be, the Roberts Court remains a favorable venue for business interests.”  And in The New York Times, Adam Liptak looks at cases in which the Court declined to overrule its precedent, observing that the failure to overrule those cases was “a disappointment to the court’s three most conservative justices, and it illuminated a fault line on the court’s right side.” Continue reading »

Posted in Round-up

The Supreme Court on Friday afternoon spared the state of Utah, temporarily, from having to officially recognize some 1,300 same-sex marriages that were performed last winter.  In a two-sentence order, without noted dissent, the Justices put on hold a federal judge’s ruling in May requiring the state to validate those marriages.

This marked the second time the Justices have stepped in to put on hold a federal court ruling in favor of same-sex marriages in Utah.  The delay ordered Friday will be in effect until the U.S. Court of Appeals for the Tenth Circuit rules on the state’s claim that those marriages did not have full legal status when performed.  The state’s lawyers have called them “interim marriages.”  The Tenth Circuit, however, has already given a strong hint that the state’s appeal is likely to fail.

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Moving on to another state’s ban on same-sex marriage, the U.S. Court of Appeals for the Tenth Circuit on Friday for a second time struck down such a measure — this time, a constitutional prohibition in Oklahoma.  That followed its earlier ruling nullifying a ban in Utah — a case that is headed to the Supreme Court later this year.

The Oklahoma case is the longest-running same-sex-marriage lawsuit in the federal courts; it was originally filed in November 2004.  The same Tenth Circuit panel that ruled against the Utah ban in a recent split decision divided again, two to one, in barring enforcement of the Oklahoma ban.  Although the Oklahoma ban was nullified, the panel put its ruling on hold to allow an appeal in that case to the Supreme Court.  The Utah decision is on hold for the same reason.

While the majority ruled against the Oklahoma marriage ban itself, as requested by a couple seeking to marry, it dismissed an already-married couple’s plea to require the state to recognize their California marriage of six years ago.  The couple lacked a legal right (“standing”) to pursue that challenge because of procedural flaws in their lawsuit, the Tenth Circuit ruled; on that point, the panel was unanimous.

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UPDATED Thursday 8:35 p.m.  Acting quickly to protect same-sex marriages that they argued are fully legal, four Utah couples urged the Supreme Court not to put their marriages on hold while the state seeks to undo them in a court appeal.  It would be both unconstitutional and unprecedented in U.S. history, they argued, to undo a marriage that was entirely valid when performed, regardless of whether Utah’s ban on such marriages is ultimately struck down or upheld.  The filing of the response clears the way for the Court to act on the plea by state officials for an order postponing any duty for the state to recognize some 1,300 same-sex marriages performed last winter.  The couples’ response was filed hours in advance of a Friday morning deadline.  State officials may file a reply.


Arguing that a federal judge in Utah has attempted an end-run around the Supreme Court, top state officials in Utah urged the Court on Wednesday evening to spare the state from having to recognize now some 1,300 same-sex marriages performed last winter.  This is the first of two new moves that Utah will be making in the Court to prevent such marriages in the state, at least until the Supreme Court has the last word on the controversy.

Within coming weeks, the same officials will be filing a petition asking the Court to answer the basic constitutional question of states’ power to forbid gay and lesbian marriages.  The filing Wednesday was focused on a separate but related argument:  that Utah should not have to officially recognize at this time the marriages that were performed during a window of legal opportunity at the end of last year.  It referred to those as “interim marriages.”

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UPDATED 9:33 p.m.  State officials have now filed a formal notice that they will appeal this ruling to a higher state court, and that apparently has the legal effect of delaying the decision’s effective date.


The still-unbroken string of court rulings over the past year striking down state bans on same-sex marriage reached Florida on Thursday — at least in Monroe County, the local government that covers the Florida Keys on the state’s southern tip.  The fourteen-page ruling by a state trial judge is to go into effect in that county next Tuesday.

Circuit Judge Luis M. Garcia of Tavernier found that the Florida ban, approved by voters of the state in 2008, violated federal constitutional guarantees of due process and legal equality.  The measure had won approval at the polls by a margin of about sixty-two percent to thirty-eight percent.

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