Plain English / Cases Made Simple

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In June 2013, in United States v. Windsor, a divided Supreme Court struck down Section 3 of the federal Defense of Marriage Act, which until then had defined “marriage” – for purposes of over a thousand federal laws and programs – as a union between a man and a woman.  The Court’s five-to-four decision meant that same-sex couples who had been married in states where same-sex unions were permitted would have the same right as opposite-sex couples to, for example, file joint federal tax returns.

But on the same day, the Court sidestepped a ruling on whether the Constitution includes a right to marry someone of the same sex.   Also by a vote of five to four, it ruled instead that supporters of California’s ban on same-sex marriage did not have a right to defend the ban on appeal when state officials had chosen not to do so.  Within days, same-sex marriages resumed in California.     Continue reading »

What does Gregory Holt, an Arkansas inmate serving a life sentence for breaking into his ex-girlfriend’s house and slitting her throat, have in common with the retail behemoth Hobby Lobby, a corporation owned by a family with strong religious beliefs? More than you might think. For starters, they have the some of the same lawyers, from the Becket Fund for Religious Liberty – which describes itself as a “non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.” Like Hobby Lobby, Holt is in the Supreme Court arguing that conduct by the government – in his case, a prison policy prohibiting him from growing a beard – violates a federal statute intended to protect religious rights. Last summer, a majority on the Court agreed with Hobby Lobby that it cannot be required to comply with a federal mandate to provide its female employees with health insurance that includes access to birth control, when doing so would violate the company’s religious beliefs. When the Court hears oral arguments in his case next Tuesday, Holt hopes to get a similar result at the Supreme Court, where he will have one thing that Hobby Lobby didn’t have: the federal government on his side. Let’s talk about it in Plain English. Continue reading »


In sports, a “streak” can say a lot about talent, endurance — and plain luck.  Cal Ripken, Jr., of the Baltimore Orioles set a major league baseball record by playing in 2,632 consecutive games.  The University of Connecticut’s women’s basketball team owns the longest string of victories in the college basketball ranks — ninety games in a row.

In law, attorney Thurgood Marshall had a string of victories (sometimes interrupted by defeats) in his campaign to achieve racial desegregation in public education, and attorney Ruth Bader Ginsburg did much the same in advancing the women’s rights revolution.  But perhaps nothing in constitutional history matches the swiftly developing “streak” of court rulings in favor of same-sex marriage.  Still, the actual meaning of that “streak” is open to debate — even about whether it is a streak.  Let’s try to sort it out, simply.

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It was déjà vu all over again.  On the last day before its summer recess, we expected the Court to rule on a challenge to the Affordable Care Act, the president’s signature legislative achievement.  Lines to get into the courtroom formed early, and crowds gathered outside.  Would we get another late June surprise, with the Chief Justice joining the four more liberal Justices to save the mandate – this year, the requirement that employers provide their female employees with health insurance that includes free access to birth control?  But this time, the answer was no:  the Court’s five more conservative Justices banded together to strike down the mandate as it applies to family-owned companies like Hobby Lobby and Conestoga Wood Specialties Corporation, the plaintiffs in this case.  The only real surprise (and, to be sure, not a momentous one) was that the author of the opinion was Justice Samuel Alito, the most junior Justice in the Court’s conservative wing.  Let’s talk about the decision in Plain English.

Justice Ginsburg with dissent in Hobby Lobby. (Art Lien)

Justice Ginsburg with dissent in Hobby Lobby. (Art Lien)

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In 2007, Massachusetts passed a law that makes it a crime to stand on a public road or sidewalk within thirty-five feet of any abortion clinic in the state.  Yesterday the Supreme Court struck down the Massachusetts “buffer zone,” siding with a group of abortion opponents who argued that the law was unconstitutional because it prevented them from being able to counsel and offer assistance to women entering the clinics.  But (much like yesterday’s decision in the recess appointments case, which I discussed in Plain English here), although all nine Justices agreed that the Massachusetts law cannot stand, there was no consensus on the reasoning that they used to reach that result.  Let’s talk about the decision in McCullen v. Coakley in Plain English. Continue reading »

With only four decisions remaining when the Justices took the bench today, we knew we would have to get something good:  all four decisions had the potential to be blockbusters.  And we did indeed, starting with a unanimous declaration by the Supreme Court that the president violated the Constitution in 2012 when he appointed three commissioners to the National Labor Relations Board during a brief recess of the Senate.  Let’s talk about the decision and what it means in Plain English.

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If you think your cable bill is too high, you probably don’t want to read this.  The Supreme Court yesterday put a stake in the heart of a start-up that delivered network television on the cheap.  More fairly, the Supreme Court recognized that Congress killed the service – Aereo – well before it got off the ground.  Let’s talk about the decision in Plain English.

This is a copyright case.  If you make a work – including a television show – you can get a copyright.  Federal law provides that no one can “publicly perform” that work unless they pay you.  And the specific provision is very broad:  it applies if the show is transmitted “by means of any device or process” and even if the audience receives it “in separate places” and “at separate times.”

Here is Aereo’s service.  You pay a fee.  In exchange, they send you network television over the Internet.  The fee is small because Aereo’s costs are low.  It doesn’t pay the copyright owners.  Instead, it has thousands of individual antennas, each of which can tune into a particular channel requested by a particular subscriber.  Aereo then saves the subscriber’s program in a separate file.  It sends the data over the Internet.

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In 1973, the Supreme Court held that police officers did not need a warrant to look inside a pack of cigarettes that they found in the coat pocket of a man who had been arrested.  Those kinds of warrantless searches were allowed, the Court reasoned back then, to protect police officers and to prevent the destruction of evidence.

Forty years later, California and the federal government urged the Supreme Court to adopt the same rule for cellphones.  Once someone is arrested, they contended, police should be able to go through the entire contents of his phone without a warrant because cellphones are just like any other item that you can carry in your hand or pocket.  But today the Supreme Court emphatically rejected that argument.  Therefore, unless it’s an emergency, police need to get a warrant before they can search your cellphone.  Let’s talk about the decision in Riley v. California in Plain English. Continue reading »


It is one of the strangest legal disputes ever to reach the Supreme Court.  On one side, a foreign nation is accusing U.S. courts of trying to ruin its economy and weaken its military defense.  Its legal opponents answer that the nation is an international scofflaw that won’t obey anything the courts do, anyway.

Adding to the drama is that some high-profile legal talents — Theodore B. Olson, David Boies, and Paul D. Clement — are right in the middle of it.  For added measure, billions of dollars are at stake.  Add to the mystery the fact that no one has any dependable idea how or when the Supreme Court will react. And add to the intrigue the fact that it all might be settled if the Supreme Court would just hand it off to a state court, to spell out the meaning of a two-word Latin phrase.

This is the Argentine bond saga, and it goes back at least thirteen years, with some history running all the way back to the 1820s.  Can this be made simple? Let’s try.

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Like the fictitious soap operas All My Children and One Life to Live before it, the long-running real-life soap opera that was Bond v. United States ended its run today.  The case had the potential to be a big one, offering the possibility that the Court could put significant limits on Congress’s power to pass laws putting international treaties into effect.  (My earlier Plain English coverage of the case is available here and here.)  But in the end, despite the possibility of drama, Bond turned out to be more like the anticlimactic series finale of another long-running show – Seinfeld.  Let’s talk about today’s decision in Plain English.  Continue reading »

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