Plain English / Cases Made Simple

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Nearly three years ago, the Supreme Court decided a huge challenge to President Barack Obama’s signature legislature achievement, the Affordable Care Act. The question was whether the Constitution allowed Congress to require everyone to buy health insurance or pay a penalty. In a dramatic opinion on the last day of that Term, Chief Justice John Roberts joined the Court’s four more liberal Justices in ruling that it does, so the law survived.

Obamacare is back at the Court again this year. This time, the challenge is to how to interpret the Act, rather than whether it violates the Constitution. Although there’s no grand constitutional showdown, the stakes are nearly as high as they were three years ago, because a ruling in favor of the challengers could gut how the Act functions. Let’s talk about King v. Burwell in Plain English.

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Yesterday the Supreme Court did something that it didn’t get to do in two other recent cases involving the Fair Housing Act: it heard oral arguments. As I noted in my preview of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the previous two cases had settled before the oral argument. The reason? Civil rights groups were worried that the conservative Justices on the Roberts Court would rule that the Fair Housing Act does not allow lawsuits based on “disparate impact” – that is, an allegation that a law or policy has a discriminatory effect, even though the discrimination was not on purpose. The ability to bring such claims is important, they believe, because these days lawmakers and landlords rarely tell people that they intend to discriminate; discrimination is much more subtle, and it’s easier to prove that an action has a discriminatory effect. Many businesses, landlords, and lawmakers want the Court to rule that disparate-impact claims are not allowed under the FHA for much the same reason: why should we face lawsuits, they ask, if we have good intentions and didn’t mean to discriminate but our actions just so happen to disproportionately affect minorities? Continue reading »

If there is one thing that the Roberts Court seems consistently willing to protect, it’s speech – even controversial or unpopular speech like violent video games, protests at the funeral of a fallen soldier, lies about receiving military medals, and dog-fighting videos. And for the Court’s five more conservative Justices, this enthusiasm for the First Amendment extends to the campaign-finance arena. In recent years, a closely divided Court has struck down a ban on independent campaign spending by corporations and unions as well as the overall caps on how much one person can contribute to campaigns for federal office. But yesterday’s oral argument in Williams-Yulee v. The Florida Bar, a Tampa lawyer’s challenge to a Florida rule that prohibited her from personally contacting would-be donors to ask them to contribute to her campaign for a job as a trial judge, hinted that, when it comes to the First Amendment, judges might be different. After all, some Justices suggested, it would be undignified for judges – who, Justice Ruth Bader Ginsburg said, are supposed to be “above the fray” – to go around asking people for money. Continue reading »

Last fall, the Court heard oral arguments in Holt v. Hobbs, an Arkansas prisoner’s challenge to a state prison policy that prohibits him from growing the beard that he believes his religion – Islam – requires. It’s an interesting case, but it drew even more attention because of the close parallels to last year’s high-profile decision in Burwell v. Hobby Lobby, the challenge to the Affordable Care Act’s requirement that businesses provide their female employees with health insurance that includes access to birth control. Would a Muslim inmate serving a life sentence for slitting his ex-girlfriend’s throat fare as well with the Roberts Court as the devout Christian family that owns Hobby Lobby and believed that obeying the ACA’s birth-control mandate would cause them to violate their religious beliefs? Continue reading »

The blog is delighted to host an online symposium on Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which the Court will consider whether the Fair Housing Act encompasses claims based on disparate impact. This “Plain English” preview of the case provides an overview of the facts and issues in the case; over the next few days, we will publish a series of posts that further explore the issues and arguments before the Court.

The Fair Housing Act makes it illegal to “refuse to sell or rent . . . or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race.”  For the third time in less than four years, the Supreme Court granted review to consider whether this language allows lawsuits based on disparate impact. A disparate-impact claim is an allegation that a law or practice has a discriminatory effect, even if it wasn’t based on a discriminatory purpose.  The first two cases – Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action – both settled less than a month before the oral arguments.

With just over two weeks before the oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, slated for January 21, it appears that the Court may finally weigh in on the question. Continue reading »

It is often hard to make predictions about how a case will turn out based on the oral arguments.  That was particularly true today, in Elonis v. United States.  At issue in the case is whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just “venting” about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.  Although the Roberts Court has been consistently supportive of free speech, even when the substance of that speech is unpopular or even downright offensive, it wasn’t clear this morning that Anthony Elonis can count on the same kind of support.  At the same time, there was no obvious path to victory for the federal government either, and the end result could be a decision that neither side likes.  Let’s talk about today’s argument in Plain English.sSC141201wide_Elwood

As I explained in my preview last week, the case before the Court boils down to what test a court or jury should use to figure out whether threatening statements like the ones that Elonis made on Facebook are “true threats” that are not protected by the First Amendment.  The government argues that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone.  By contrast, Elonis argues that the test should be a subjective one:  did he personally intend to threaten anyone?  Continue reading »

Protesting at the funeral of a fallen soldier. Lying about your military record. Violent video games for children. Making videos about dogfighting. In the past few years, the Supreme Court has held that the First Amendment protects all of these forms of expression, even when very unpopular or offensive. Next week the Justices will hear oral arguments to determine whether Anthony Elonis’s Facebook posts, which left his ex-wife “extremely scared” and an FBI agent worried about her family’s safety, are entitled to the same kind of protection. Let’s talk about Elonis v. United States in Plain English. Continue reading »

For the rest of the nation’s capital, yesterday’s elections may have been the week’s headliner, but inside the Supreme Court the main event came today, as spectators – including retired Justice Sandra Day O’Connor and Judge Brett Kavanaugh of the D.C. Circuit – packed the courtroom to hear a case about . . . fish.  Specifically, the seventy-two red grouper that commercial fisherman John Yates had ordered his crew to throw overboard after a Florida official (working on behalf of the federal government) determined that they were smaller than the legal limit.  Yates was charged with violating a federal law that makes it a crime to “knowingly . . . destroy[] any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation, even one that has not yet been officially initiated.  (I previewed the case in Plain English yesterday.) Continue reading »

In 2002, Congress passed the Sarbanes-Oxley Act in the wake of the collapse of Enron Corporation, once the world’s largest energy trader. One provision was a response to revelations that Enron and its accountants had destroyed thousands of documents, computer hard drives, and emails that might have shed light on the company and its finances. The law makes it a crime to “knowingly . . . destroy[] any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation, even if such an investigation has not yet been officially initiated. Tomorrow the Supreme Court will consider exactly how broadly the law sweeps – is it a crime even when the thing that was destroyed was a fish? Let’s talk about Yates v. United States in Plain English.       Continue reading »

We often think of the Supreme Court as the arbiter of distinctly national disputes – for example, whether the Affordable Care Act can require all of us to obtain health insurance or pay a penalty, or whether public universities can consider race as one factor in their admissions process.  But yesterday the Court waded into a dispute that is playing out on a global stage:  whether a U.S. citizen born in Jerusalem can choose to have his place of birth listed as “Israel” on his passport.  The answer, according to the U.S. government, could have a potentially explosive impact on the U.S.’s role in the Middle East peace process, and possibly even on the peace process itself.  Let’s talk about Zivotofsky v. Kerry and yesterday’s argument in Plain English. sSC141103_clock Continue reading »

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