On June 2 at 12 p.m., the D.C. Bar will host the next installment of its monthly seminar series on issues and cases before the Court. Kyle Duncan and Richard Katskee will focus on Zubik v. Burwell, the challenge to the Affordable Care Act’s birth-control mandate and the accommodation offered to religious non-profits that object to the mandate; this blog’s Amy Howe will serve as the moderator. Additional classes will be held on the first Thursday of each month (July 7, August 4, September 1, and October 6). More information and registration are available for the in-person presentation and the webinar.
We are live-blogging this morning as the Court issues opinions. Join us.
Yesterday’s coverage of the Court was dominated by the announcement, by Republican presidential candidate Donald Trump, of a list of potential Supreme Court nominees. Coverage comes from NPR’s Nina Totenberg, Jenna Johnson and Robert Barnes of The Washington Post, and Alan Rappeport and Charlie Savage of The New York Times. Commentary comes from Dara Lind and Dylan Matthews at Vox, Kent Scheidegger at Crime and Consequences, and Ilya Shapiro at Cato at Liberty.
There was still more coverage relating to the nomination of Chief Judge Merrick Garland to succeed the late Justice Antonin Scalia. First, as Dave Boyer of The Washington Times reports, “Senate Democrats held a mock confirmation hearing Wednesday” for Garland. And at Empirical SCOTUS, Adam Feldman describes the database that he created of Garland’s opinions. Continue reading »
In its Conference of May 19, 2016, the Court will consider petitions involving issues such as whether, for federal habeas purposes, California’s procedural rule generally barring review of claims that were available but not raised on direct appeal is an “adequate” state-law ground for rejection of a claim; whether execution of a condemned individual more than three-and-one-half decades after the imposition of a death sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment; and whether a defendant’s Due Process right to a fair trial is secure when a prosecutor with a history of misconduct commits misconduct on several occasions through the defendant’s trial.
More coverage of Monday’s ruling in Zubik v. Burwell, the challenge to the Obama administration’s birth-control mandate and the accommodation offered to religious non-profits, comes from NPR’s Nina Totenberg and Tierney Sneed at Talking Points Memo. Commentary comes from The Citizen’s Guide to the Supreme Court (in a podcast), Margaret Drew at the Human Rights at Home Blog, Ilya Shapiro at Cato at Liberty, and Marty Lederman at Balkinization. Continue reading »
For many Supreme Court watchers, yesterday’s decision in Husky International Electronics v. Ritz may have been overshadowed by some of the other, higher-profile rulings in cases involving (among other things) the Affordable Care Act’s birth-control mandate and Article III standing. But the ruling in Husky proved to be an important one for bankruptcy lawyers. By a vote of seven to one, the Court closed what a group of bankruptcy trustees had described as a “dangerous loophole” that might have allowed “the boldest and most dishonest debtors” to “game the system” by racking up debts, transferring their assets to other entities, and declaring bankruptcy. Continue reading »
Richard W. Garnett is Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He signed an amicus brief of constitutional law scholars in support of the petitioners in Zubik v. Burwell.
What just happened? It has been nearly five years since the Department of Health and Human Services announced an “interim final rule” requiring that contraceptives approved by the Food and Drug Administration be included, without cost sharing, in most employees’ health plans. That rule provided an indefensibly narrow religious exemption, one that was effectively limited to houses of worship and did not cover most religious universities, schools, social-service agencies, outreach ministries, or health-care providers. This ungenerous overreach prompted protests across the political spectrum. Years later, the short and strange per curiam opinion in Zubik v. Burwell is, among other things, a consequence of this misguided and unnecessary first step.
Caroline Mala Corbin is Professor of Law at the University of Miami School of Law.
The legal question
Does filing paperwork in order to obtain a religious exemption from a law constitute a substantial burden on religious liberty? That was the main question posed by Zubik v. Burwell. In Zubik, religiously affiliated non-profit organizations argued that the Affordable Care Act’s contraception benefit violated the Religious Freedom Restoration Act (RFRA) by substantially burdening their religious conscience. Under RFRA, religious objectors need not comply with any federal law that imposes a substantial religious burden unless the government can demonstrate that the law passes strict scrutiny.
Notably, the contraception regulations actually exempted the non-profits from providing contraception. Once a non-profit certified that it is religiously opposed to contraception and notifies either its insurance carrier or the Department of Health and Human Services, the responsibility for contraception coverage shifted to its private insurance company. The non-profit did not have to provide, pay for, or even inform its employees or students of the separate coverage.
Leslie C. Griffin is William S. Boyd Professor of Law at the UNLV Boyd School of Law.
That’s the dangerous word that snuck into the Court’s conflicted order in the contraceptive benefit requirement cases.
Zubik v. Burwell was supposed to be about employer accommodations, not exemptions, to the requirement that employees receive insurance coverage for their reproductive health care needs. Yet there the dangerous word is, buried in the penultimate paragraph of the per curiam opinion: “Through this litigation, petitioners have made the Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.’”
Perhaps the Court meant accommodation. But this case was always about uncompromising exemptions, the dangerous word that harms church workers and threatens employees of religious organizations.
The most important thing to happen in securities litigation in the last twenty years is the stark narrowing of the relief available in federal courts. Between the Private Securities Litigation Reform Act of 1995 (PSLRA) and the Supreme Court’s elevation of the standards for specificity in pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, a securities plaintiff’s task in getting past a motion to dismiss is well-nigh herculean. So it is easy to understand why the plaintiffs’ bar would search for a way to keep those cases in state court. This morning’s decision in Merrill Lynch, Pierce, Fenner & Smith v. Manning suggests they may have found one.
The case involves allegations that Merrill Lynch (the defendant) engaged in manipulative “short selling.” The plaintiff (Greg Manning) seeks relief under the New Jersey RICO statute, New Jersey securities laws, and a variety of common-law obligations involving unjust enrichment, interference with contractual relations and the like. The complaint points out that the conduct also violated the SEC’s Regulation SHO (promulgated under the Exchange Act), although it does not seek relief under that regulation or any other provision of federal law.