Editor's Note :

Editor's Note :

The Supreme Court will release orders from the May 24 conference on Tuesday at 9:30 a.m. There is a possibility of opinions at 10 a.m. We will live-blog at this link.

Plain English / Cases Made Simple

This is our archive of posts in Plain English. You may also be interested in these resources:

Supreme Court Procedure
Glossary of Legal Terms
Biographies of the Justices

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 »

Just one day after bucking conventional wisdom by not reviewing any of the lower-court decisions striking down five states’ bans on same-sex marriage, the Justices took the bench again this morning to hear oral arguments. First up was Holt v. Hobbs, a Muslim inmate’s challenge to a prison policy that prohibits him from growing the beard that he believes his religion requires. Although high-profile cases like this one usually draw rapid-fire questioning from the bench, and can even run over the time allotted to them, today the Justices seemed unusually subdued, and the argument actually finished a little early. When it was over, inmate Gregory Holt appeared to have a solid majority of the Justices on his side – including Justice Samuel Alito, who is generally one of the most loyal allies of prosecutors and prison officials on the Court. Let’s talk about the argument in Plain English.

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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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