The Obama administration on Friday urged a federal appeals court to clear the way for what could be a lengthy new review over younger girls’ access to “Plan B” emergency birth control pills, even while keeping in place government limits on access for women of all ages to the version of those pills that has become the most widely sought.   A new brief filed in the Second Circuit Court laid out the agenda that the Food and Drug Administration would be pursuing if a federal judge’s order giving all women greater access is put on hold.

Meanwhile, earlier in the week, supporters of the judge’s broad order filed their own new brief, urging the Circuit Court to leave that order intact — a result that could mean unlimited over-the-counter access to the most popular Plan B version, the newer one-pill version that now accounts for eighty-five percent of the sales of emergency contraceptives in the Plan B category.  The older Plan B, using two pills taken separately, is now available only in a generic version that appears to be rapidly losing its popularity with women.

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The Court will be closed on Monday in observance of Memorial Day.

On Tuesday at 9:30 a.m. we expect orders from the May 23 Conference. Our list of “Petitions to watch” for that Conference is here. At 10 a.m. we expect opinions in argued cases. We will begin live blogging shortly before 9:30.

On Thursday the Justices will meet for their May 30 Conference.  Our list of “Petitions to watch” for that Conference is here.

The petition of the day is:

Last week I reported on the three cases in which the Solicitor General had filed invitation briefs that will be considered at the Justices’ June 6 Conference.  The Solicitor General has now filed four briefs in cases that will be considered the following week, at the Court’s June 13 Conference.  In those four briefs, the Solicitor General recommended that cert. be granted in one case but denied in three others:

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Coverage continues of Monday’s decision in City of Arlington v. FCC, in which the Court held by a vote of six to three that courts must apply Chevron deference to an agency’s interpretation of a statutory ambiguity concerning the scope of the agency’s statutory authority. Miriam Seifter breaks down the decision for this blog, while Jeremy P. Jacobs of Greenwire reports that the ruling “could be a boon” for the Environmental Protection Agency. In his column for Verdict, Vikram Amar considers the broader implications of the decision and concludes that “[o]nly time will tell whether the schism between the majority and the dissenters in Arlington portends bigger battles over Chevron deference, one of the main pillars of modern administrative law.” Continue reading »

Evelyn Buggs, a longtime member of the staff of the Office of the Solicitor General, passed away today.  Here are the thoughts of several attorneys with whom she worked.

Chief Justice John Roberts, who served as Principal Deputy Solicitor General:

I was saddened to learn of Evelyn’s passing. She was my secretary when I worked in the Solicitor General’s Office, and she worked faithfully and tirelessly to serve the Department she cherished and the country she loved.

Associate Justice Elena Kagan, who served as Solicitor General:

Evelyn Buggs was a true public servant. In her kind, unassuming way, she was the glue that held the Solicitor General’s Office together. She never wanted any praise or recognition, yet she was always there when you needed something, always working behind the scenes, always helping someone. That was Evelyn’s gift to all of us—quietly keeping everything running smoothly, year after year. As so many others who have worked in the Solicitor General’s Office, I consider myself lucky to have known and worked with Evelyn. She will be deeply missed.

Solicitor General Donald Verrilli:

The Office of the Solicitor General has lost a treasured colleague and friend.  Our dear Evelyn Buggs has passed away, after a long illness.  Evelyn served in the Office for more than two decades.  No one was more devoted to the mission of the Office, and no one has contributed more over the years to its successful functioning.   Evelyn knew for some time that she would not survive her illness.  She asked that she be able to leave the Office as she entered it — quietly and without fanfare, focused on each day’s responsibilities, until she could work no more.  She stayed at her post until just ten days ago.  Her dedication, and the warmth of her smile, never flagged.  The dignity and courage she showed these past few months will be a continuing inspiration to all of us who were privileged to work with her during that time.

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A Washington State business joined the Obama administration on Thursday in urging the Supreme Court to clarify when presidents can constitutionally fill government vacancies when the Senate is taking a recess, but asked the Court to rule in a way that would definitely scuttle the specific appointments that are at issue in the case.  The brief by Noel Canning, a soft-drink bottling company in Yakima, can be read here.

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At its May 30, 2013 Conference, the Court will consider petitions seeking review of issues such as the constitutionality of restrictions on “gruesome” imagery in a public forum, a ban on an individual’s access to a public roadway through a military installation, a self-defense claim by a member of the armed forces in a combat zone, and the predominance requirement for class certification.

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 work for or 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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Monday’s opinion in City of Arlington v. FCC is surely destined for administrative law textbooks.  One reason is that the Court at last resolved a longstanding dispute in the field: whether agencies are eligible for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. when interpreting the scope of their own so-called “jurisdiction.”  The answer is yes; as Justice Scalia’s majority opinion explains, the distinction between jurisdictional questions and non-jurisdictional interpretations is “a mirage.”  The decision is also a bonanza for other significant administrative-law debates.  It provides another chapter in the disagreement between Justices Scalia and Breyer over the virtues of rules versus standards in determining deference; it includes an interesting sidebar between the majority and the dissent regarding federal agencies’ accumulation of legislative, executive, and judicial power; and it features a vigorous dissent by the Chief Justice regarding “the danger posed by the growing power of the administrative state,” which now entails “hundreds of federal agencies poking into every nook and cranny of daily life.”

Opinion author in red. Dissenting Justices in grey.

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At this blog, Lyle Denniston discusses nine pending cert. petitions regarding new EPA rules on greenhouse gases and observes that the petitions “could either turn into one of the biggest regulatory cases the Court has had in years, or could go nowhere because of the argument that the Supreme Court has already all but resolved the dispute.” Also at this blog, Amy Howe discusses the prospect that Burnside v. Walters, in which the Court recently granted cert. to address the interpretation of 28 U.S.C. § 1915, which allows indigent plaintiffs to file their lawsuits in forma pauperis, could return to the Sixth Circuit without a ruling on the merits by the Supreme Court. Continue reading »