At its Conference on March 6, 2015, the Court will consider petitions seeking review of issues such as a foreign official’s common-law immunity for acts performed on behalf of a foreign state, judicial review of a jurisdictional determination under the Clean Water Act, and a court’s denial of a criminal defendant’s constitutional right to testify.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

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Thursday round-up

By on Mar 5, 2015 at 8:28 am

Yesterday the Court heard oral arguments in King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase their health insurance on a marketplace created by the federal government.  Andrew Hamm rounded up early coverage and commentary for this blog.  Other coverage comes from Nina Totenberg at NPR, Marcia Coyle at both The National Law Journal (subscription required) and PBS NewsHour (video), Greg Stohr of Bloomberg News, who looks at the role of Justice Anthony Kennedy and at a proposal floated by Justice Samuel Alito, and Connie Cass of the Associated Press (via the Montana Standard). At ISCOTUSnow, Edward Lee predicts the winner in yesterday’s oral arguments based on the number of questions for each side, while Oliver Roeder makes predictions at FiveThirtyEight.com.  Before the oral argument, Sahil Kapur looked at the potentially pivotal role of Chief Justice John Roberts at Talking Points Memo. Continue reading »

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Petition of the day

By on Mar 4, 2015 at 10:23 pm

The petition of the day is:

14-990

Issue: Whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Rule 12(b)(6).

 
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This morning the Court heard oral argument in King v. Burwell, a challenge to the availability of tax subsidies for individuals who purchase health insurance on an exchange established by the federal government. Lyle Denniston covered the decision for this blog, Amy Howe explained the argument in Plain English, and Mark Walsh provided a view from the Courtroom.  Writing for this blog, Eric Citron provided our initial mid-argument report (with a follow-up later on), while Tejinder Singh had another mid-argument update.

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If there was any doubt that Wednesday was a big day at the Supreme Court, a reminder came as a group of reporters waited in line in a hallway to pass through security to enter the courtroom.

Around 9:30 a.m., just a half-hour before the arguments in King v. Burwell were to begin, Supreme Court police officers asked us to make an opening. One of the named parties, Health and Human Services Secretary Sylvia Burwell and her entourage of a few aides and security personnel passed through.

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After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands.  Justices Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg all seemed like solid votes for the federal government, defending the subsidies, while the challengers could clearly count on the votes of Justices Antonin Scalia and Samuel Alito.  Chief Justice John Roberts – who three years ago joined the Court’s more liberal Justices to uphold another provision of the Affordable Care Act, requiring everyone to buy health insurance or pay a penalty (it’s a tax!) – kept his cards close to his chest, asking only a few questions that gave no real hint as to how he might vote.  But even if it ultimately doesn’t get the Chief Justice’s vote, the government could still win as long as it can pick up just one more vote.  And that seemed like at least a possibility, because Justice Anthony Kennedy asked several questions which suggested that he might be leaning more toward the government than the challengers.  Let’s talk about today’s argument in Plain English.

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Analysis

One of the most important functions of oral argument in the Supreme Court is that it can strongly shape the next round: the private deliberations among the nine Justices as they start work on a decision.  The much-awaited hearing Wednesday on the stiff new challenge to the Affordable Care Act strongly suggested that Topic A in private could well be: how bad will we make things if we rule against the government?

Justice Anthony M. Kennedy, who seemed decidedly more sympathetic to the government than might have been expected, worried over a constitutional blow against the states.  But even the two Justices most openly sympathetic to the challengers — Justices Samuel A. Alito, Jr., and Antonin Scalia — seemed to concede the dire consequences that could follow, by suggesting ways to alleviate it.  Alito said the Court could delay its ruling to allow time to adjust, and Scalia said Congress could be counted on to fix it.

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The first case argued Tuesday morning, City of Los Angeles v. Patel, was about whether a Los Angeles ordinance that requires motel operators to allow the police to examine hotel guest registers, without seeking a warrant first, is constitutional. The en banc Ninth Circuit ruled that is is not, because the ordinance lacks an “essential procedural safeguard… pre-compliance judicial review.” Prior to argument, many observers thought this meant that some judicial “administrative warrant” process was required. But now, after reviewing the argument transcript, confusion regarding exactly what the plaintiffs are seeking, as expressed by more than one Justice, may lead to reversal and remand rather than a substantive Fourth Amendment ruling. Continue reading »

Today’s transcript

By on Mar 4, 2015 at 1:22 pm

The transcript of this morning’s argument in King v. Burwell is here.

Posted in Merits Cases
 
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Until we hear how Justice Kennedy questioned the government, the most important news from the morning’s argument is clearly his focus on the potential consequences for states that choose not to establish their own exchanges under the petitioners’ reading of the statute – that is, that citizens of those states would receive no subsidy and no resulting mandate tax penalty.  Trained constitutional lawyers will find it noteworthy that his focus here is on the consequence for states as such, and not for their citizens; Kennedy’s concern is about the federal/state balance and his distrust of a reading that puts a gun to the head of states that fail to set up their own exchanges – threatening them with the almost certain destruction of their statewide insurance systems if they do not comply.  That concern might be interpreted (as a matter of legal theory) in a few different ways:  Justice Kennedy might believe that Congress would not have intended to set up such a dubious system; he might believe that this reading is required but actually unconstitutional (so that he would strike down the statute’s condition that subsidies apply only to exchanges established by the state); or – perhaps most likely – he might believe that the statute should be interpreted so as to avoid the “serious constitutional problem” he identified. Continue reading »

 
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