(11:13 AM) I stepped out of the room approximately five minutes into the Solicitor General’s argument. Here’s what happened since Eric’s last update.

The Justices focused their questioning for the remainder of Michael Carvin’s argument for the petitioners on whether his interpretation of the statute had put an “elephant in a mousehole,” i.e., whether it would have made any sense for Congress to put such an important condition for receiving subsidies inside a technical formula for calculating the amount of the subsidy. Justices Ginsburg and Kagan focused on this point. Carvin parried that if one was looking for information about who should get a tax credit (the form of the subsidy at issue), then the natural place to look would be in the tax code, and not in the title of the U.S. code relating to public health and exchanges. That didn’t sit well with Justice Kagan, who tested the argument against Carvin’s other claim, which is that Congress was trying to create an incentive for states; in Justice Kagan’s view, the states would look to the provisions relating to establishing exchanges, and not to the technical coverage formula, to decide whether to set one up. Thus, if Congress was trying to create incentives for states, it would put those incentives in the place where they would look. Justice Alito jumped in to help Carvin, saying that if a state was looking for information about tax credits, it would look to the tax code. Continue reading »


First update: Liberals lead line in questioning of Petitioner in King, but Kennedy asks important question about disrupting federal state balance.

Counsel for the petitioners – who are seeking to invalidate subsidies in states with federal exchanges – faced tough questioning from the more liberal Justices in the first 20 minutes of today’s argument.  In particular, a perceptive hypothetical from Justice Kagan forced the petitioners to concede that context, rather than just the literal text of the statute, is important to understanding it.  Once the argument turned to context, however, Justice Kennedy expressed deep concern with a system where the statute would potentially destroy the insurance system in states that chose not to establish their own exchanges – likening this to an unconstitutional form of federal coercion. That made him seem skeptical of the petitioners’ reading of the statute, a hopeful point for defenders of the existing subsidies in all states.

While Justice Kennedy also suggested that perhaps this reading could not be avoided, his skepticism suggests that both sides will be trying hard to get his critical vote.

Second update: Perceptive hypothetical from Justice Kagan forces petitioners to focus on context, not just text.

Continue reading »


Justice Clarence Thomas’s opinion for the Court Tuesday in Direct Marketing Association v. Brohl gave online retailers a big victory – something that certainly wasn’t all that clear after the rocky time their counsel experienced at the oral argument. The case involves a question of paramount importance to online retailers, at least those whose business model depends on not charging sales taxes. Colorado has a statute that requires online retailers selling to Colorado customers to file a report each year advising Colorado tax authorities of the purchases local residents have made from that retailer. Collectively, the reports would facilitate the state’s collection of use taxes from local taxpayers for their online purchases; because the use taxes substitute directly for the sales taxes charged on retail purchases, effective enforcement would end the advantage online retailers have when they can sell tax free. Continue reading »

We are live blogging this morning as opinions are issued in argued cases. Click here to be taken to the live blog page.

Posted in Live

Wednesday round-up

By on Mar 4, 2015 at 5:49 am

Today’s the day!  At 10 a.m. the Court will hear oral arguments in King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase their health insurance on a marketplace created by the federal government.  Lyle Denniston previewed the oral argument for this blog, while I added a preview in Plain English.  Other coverage of the case comes from Nina Totenberg of NPR; Jess Bravin of The Wall Street Journal, who focuses on the role of Chief Justice John Roberts; David Savage of the Los Angeles Times, who looks at the origins of the case; Sahil Kapur of Talking Points Memo, who reports that  “Senate Republican leaders wouldn’t commit Tuesday to having health care legislation ready by June to avert a potential crisis if the Supreme Court wipes out Obamacare subsidies for millions of Americans”; Jess Bravin of The Wall Street Journal, who profiles Michael Carvin, the attorney for the challengers; and Paige Winfield Cunningham in the Washington Examiner. And in the Legal Times (subscription required), Tony Mauro reports that the Court has declined to release same-day audio of the argument.  Continue reading »

Posted in Round-up

Sharply criticizing the Supreme Court for its recent actions on same-sex marriage, the Alabama Supreme Court on Tuesday evening ordered all state judges who have the duty to issue licenses to wed to stop doing so immediately for same-sex couples.

Using its independent power to interpret the federal Constitution, the state tribunal upheld the Alabama ban on same-sex marriage — a ruling directly contrary to a decision by a federal trial judge in Mobile.  The Supreme Court itself has refused to stop the enforcement of the federal judge’s ruling while the state appeals to the U.S. Court of Appeals for the Eleventh Circuit.

Continue reading »

Petition of the day

By on Mar 3, 2015 at 10:20 pm

The petition of the day is:


Issue: (1) Whether a jurisdictional determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, is subject to judicial review under the Administrative Procedure Act; and (2) whether a due process claim against an agency action is subject to the finality requirement of the Administrative Procedure Act.

Few areas of the Supreme Court’s jurisprudence are as dense and complex as the rules governing post-conviction habeas corpus petitions filed by state prisoners in federal court. And the density and complexity of those doctrines were on full display Tuesday morning, as the Justices tried to sort out whether California death row inmate Hector Ayala should receive a new trial for the murders of three men and a host of other serious felonies arising out of a 1985 armed robbery. While Justices Anthony Kennedy and Sonia Sotomayor, in particular, seemed deeply troubled by some of the actions of the state trial judge who presided over Ayala’s prosecution – and some of the arguments offered by California in defending those actions – it was difficult to find in Tuesday’s argument any broad support for a decision affirming the Ninth Circuit’s ruling that had granted Ayala relief. Instead, if Tuesday’s argument made anything clear, it was the need for the Justices to clarify exactly which state court decisions are entitled to deference from federal habeas courts—and for what reasons. Continue reading »


Today’s transcripts

By on Mar 3, 2015 at 4:44 pm

The transcript in Los Angeles v. Patel is here

The transcript in Davis v. Ayala is here.

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