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On Wednesday, the Court will hear oral argument in a potentially historic case that has both civil rights activists and conservatives on the edge of their seats:  Shelby County v. Holder, a challenge to the constitutionality of a provision historically at the center of the federal government’s efforts to eliminate racial discrimination in voting.

To understand the case, it is useful to start with a bit of background.  In 1965, Congress passed the Voting Rights Act to counter efforts by states and local governments, especially in the South, to prevent blacks from voting.  Some provisions of the Act target behavior or rules relating to voting that would directly discriminate on the basis of race; the Act also abolishes other tactics – such as literacy tests – that had traditionally been used to try to keep African Americans from voting.

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On February 11, the blog will begin publishing articles in a symposium on the Supreme Court case testing the constitutionality of the key section of the Voting Rights Act of 1965. A list of contributors is here.  The case, Shelby County v. Holder (docket 12-96), will be heard by the Court on Wednesday, February 27, at 10 a.m.   The following post explains, in non-legal terms, what the case is about.   This post is an updated and expanded version of one that appeared on the blog on September 7, before the Court granted review of this case.

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Nearly a half-century ago, Congress decided that the government could not end racial discrimination in voting simply by suing one state, county, or city at a time, because officials who were determined to keep minorities away from the polls were quickly shifting to new tactics. The only way to keep ahead of those tactics, Congress decided, was to bar the worst offenders among state and local governments from adopting any new election laws until they had first proved that those laws would not discriminate. That was a massive shift in policy, and it worked: the law that Congress passed in 1965, the Voting Rights Act, is now widely credited with being the most effective civil rights law in American history; even the Supreme Court has said so.

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Later today the blog will begin publishing an online symposium on the Supreme Court case testing whether human genes, taken out of the body and isolated in a laboratory, without change, can be given a patent. A roster of the contributors to the symposium is available here. The following post explains, in non-legal language, what is involved in that case (Association for Molecular Pathology v. Myriad Genetics, Inc., on the Court’s docket as 12-398).  The Court is expected to hold a hearing on it in April, and decide the case before the end of this Term in late June.

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Supreme Court Justices are lawyers, not scientists.  But, now and then, they have to decide how the law applies to scientific  or technological advances.   They will be doing that in a historic case that has broad implications for scientific research, but also for doctors’ treatment of some serious diseases or afflictions.   The outcome of the case may determine whether one research firm will have a monopoly over a new technique for diagnosing a patient’s risk of certain forms of cancer in women, or whether that field of study will be open to others, too.

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Analysis

Sparing the government from having to pay potentially hundreds of hospitals billions in added reimbursement for treating Medicare patients, the Supreme Court ruled unanimously on Tuesday that they filed their payment challenges too late.  In the course of the ruling, the Court indicated that it won’t often allow those who deal with government regulatory agencies extra time to use internal review machinery at those agencies — a conclusion that drew a lone protest from Justice Sonia Sotomayor.  The ruling came in the case of Sebelius v. Auburn Regional Medical Center (docket 11-1231).

The ruling cuts off scores of pending lawsuits by hospitals who treat many poor patients. Those lawsuits claim that the government miscalculated their reimbursements and then did not tell them about the flaw until an appeal deadline had passed.  They argued that, in that situation, the appeal deadline should be interrupted, under the doctrine of “equitable tolling.”  The Court, in response, said that doctrine would not apply to the Medicare financing scheme, and hinted that it would not be available very often — if at all — for internal agency reviews.

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Analysis

Casting aside the simplistic notion that “anything that floats” is a watercraft whose use and activity is controlled by maritime law, the Supreme Court on Tuesday installed a “reasonable observer” at dockside to make the judgment about whether a floating structure qualifies, or not, as a “vessel.”   The vote was seven to two, in favor of a maverick Florida owner of a houseboat who was constantly in hot water with marina owners, but now appears to have the last word: the marina probably will have to pay him, not the other way around.

The dissenters complained that the Court was introducing confusion and complexity into what should be straightforward and explicit, and thus upsetting the expectations of the entire maritime industry.   The majority, in an opinion by Justice Stephen G. Breyer, insisted that its “reasonable observer” test would work in the real world of floating structures.

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Analysis

With a not-so-subtle remainder to lawyers for business firms that the Supreme Court is well aware that they might try to manipulate the courts for commercial advantage, the Justices on Wednesday allowed the giant maker of athletic shoes — Nike, Inc. — to get itself free from a lawsuit that might have scuttled one of its most valuable trademarks.   But it did so by stressing that Nike, having made a promise never to sue a small commercial rival for violating that mark, will be held strictly to that promise.  And the Court told that small rival that it might have blown its own chance to keep its trademark challenge alive.

Although the case of Already LLC v. Nike, Inc. (docket 11-982) was a high-stakes legal fight over trademark infringement, it probably had even greater significance as a test of a company’s opportunity to shut down a competitor’s threatening lawsuit by giving up its right to pursue its own legal claim against that competitor.   The Court’s main opinion — and, in particular, a separate opinion by four of the Justices — put lower courts on notice to be on guard against being trifled with by lawyers’ misuse of such a tactic.

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Analysis

Even allowing for the reality that what is said at a Supreme Court hearing does not necessarily dictate the outcome, now and then a case comes along where the Justices join so obviously in a common pursuit of a compromise that little suspense remains.  That happened on Wednesday, in the case of Missouri v. McNeely (docket 11-1425), when it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving.   Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one.

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Al J. Daniel, Jr., served on the Appellate Staff, Civil Division, United States Department of Justice in Washington, D.C. from 1978 to 1988.  He is in private practice with Cowan, DeBaets, Abrahams & Sheppard LLP in New York City, an intellectual property and entertainment law firm, where he continues a litigation practice, including appellate work in courts of appeals and the Supreme Court.

Among his many duties, the Solicitor General has the most visible role in the government’s Supreme Court litigation and also decides whether the government should appeal decisions adverse to the government to the federal courts of appeals.  The Solicitor General himself argues many of the government’s cases before the Supreme Court, with most of the others being argued by members of his staff.  Almost all of the government’s petitions and briefs as a party or an amicus in the Supreme Court are filed by the Solicitor General’s Office.  In rare circumstances, independent agencies with explicit litigation authority from Congress may file petitions and briefs in the Supreme Court.

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After the 10 a.m. Tuesday release of one or more opinions, the Supreme Court will hold one hour of oral argument on an issue affecting hundreds of hospitals that treat the poor who are elderly or disabled: a question of a grace period to file late claims for Medicare reimbursement from the federal government.  In Sebelius v. Auburn Regional Medical Center (docket 11-1231), the Court will hear three differing arguments from three lawyers.  Arguing for the federal government, with twenty minutes of time, will be Deputy Solicitor General Edwin S. Kneedler.  Arguing next, with ten minutes of time, will be Harvard law professor John F. Manning of Cambridge, Mass., appointed by the Court as an amicus to argue a position different from those of the opposing sides.  Arguing for eighteen hospitals, with thirty minutes, will be Robert L. Roth of the Washington office of the law firm of Hooper, Lundy & Bookman.

Background

Ordinarily, when someone wants to file a legal claim, they usually have to do so it when it is fresh, or nearly so, so that it gets resolved before situations change or memories fade.  Sometimes, though, when such deadlines seem too harsh, they are relaxed, for what are deemed to be good reasons.  The Supreme Court has spent years trying to sort out when deadlines are binding, and when they can be interrupted for a time as a matter of fairness.  Such an interruption is called, technically, “equitable tolling.” The Justices return to that inquiry in a case that has the potential to cost the federal government “enormous amounts” of money, perhaps reaching into the billions of dollars, to pay for what the government considers stale legal claims.

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At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the authority of a federal court to decide a workers’ pay case if there is an offer — but it is not accepted — to provide what the lawsuit sought.  Arguing in favor of a bar to continuing such a lawsuit will be Ronald J. Mann of New York City, a Columbia University law professor.  Arguing against scuttling such a case, with twenty minutes of time, will be former Acting Solicitor General Neal Kumar Katyal.  Arguing for the federal government as an amicus on Katyal’s side of the case, with ten minutes, will be Anthony A. Yang, an Assistant to the U.S. Solicitor General.  The case is Genesis HealthCare Corp. v. Symczyk (docket 11-1059).

Background

Most of the time, someone who gets sued would rather that had not happened.  That, of course, is why many lawsuits get settled: something is worked out, the case ends, and everybody saves time, money, and effort.   But is that always a good thing?  Maybe not, and that “maybe” has produced a case for the Supreme Court.  This can be a tricky thing for federal courts, in particular, because they do not have the authority to decide a case that no longer involves a live controversy, so the issue now before the Court is how to deal with a full offer to settle that was made but not accepted.

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