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, are now just two days away, and both coverage and commentary are pouring in. Lyle Denniston previewed the oral argument for this blog, with other coverage coming from David Gutman of the (West Virginia) Sunday Gazette-Mail, Commentary comes from Robert Barnes of The Washington Post, who focuses on the role of the Chief Justice, the editorial board of The New York Times, Todd Gaziano for The Blaze, Brianne Gorod in the Los Angeles Times, Ruth Marcus for The Washington Post, Jeremy Leaming at ACSblog, and Kenneth Jost at Jost on Justice. Continue reading »
At 10 a.m. Wednesday, the Supreme Court will hold oral argument on the latest legal challenge to the Affordable Care Act, the new federal health-care law. The oral arguments in King v. Burwell will feature two high-profile lawyers, Michael A. Carvin of the Washington, D.C., law firm of Jones Day, for the challengers, and U.S. Solicitor General Donald B. Verrilli, Jr., defending the subsidy system designed to help millions of consumers afford health insurance. The hearing is scheduled for one hour, but it may be allowed to run longer, especially since no other cases are up for argument that day.
Background
Five years ago, when Congress finished writing nearly a thousand pages that would become the new national health-care law, it was well aware that the finished product would be subject to strong challenges. The Affordable Care Act was passed in both houses with not one Republican lawmaker voting for it. The day after it passed, Republicans introduced a bill to repeal it. The House has since voted some sixty times for repeal.
Still, the law remains on the books, while controversy goes on, and the Supreme Court has now allowed itself back into the middle of the dispute, for the second time in three years.
On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl and on Wednesday, the Court announced the decision in Alabama Department of Revenue v. CSX. This is the second week of the February sitting.
At 11 a.m. Monday, the Supreme Court will hold one hour of oral argument to continue to explore the constitutional right of an accused person to confront at trial the witnesses for the prosecution. Arguing for the state in Ohio v. Clark will be Matthew E. Meyer of Cleveland, an assistant prosecuting attorney, with twenty minutes of time. Ilana Eisenstein, an assistant to the U.S. Solicitor General, will have ten minutes to speak for the federal government as an amicus supporting the state. The accused individual in the case will be represented by Stanford law professor Jeffrey L. Fisher, with thirty minutes of time.
Background
For the past eleven years, the Supreme Court has been defining — one case at a case — how far the Sixth Amendment goes to protect a right of the accused person on trial to confront witnesses who will give evidence to support a guilty verdict. The process generally has expanded that right, by limiting the use of evidence coming from those who, for some reason, could not show up at the trial, when prosecutors want to use some of what those witnesses had said out of court.
Next week, the Court confronts the difficult question about what to do when the evidence at trial would be provided by school teachers and social workers who interviewed a three-and-a-half-year-old boy about alleged abuse, with the boy himself not appearing at the trial.
The petition of the day is:
Issue: Whether, under the Employee Retirement and Income Security Act of 1974 (ERISA), a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seeks “equitable relief” within the meaning of ERISA section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant's possession and control at the time the fiduciary asserts its claim.
Oyez has posted audio recordings and transcripts of this week’s arguments.
The Court heard arguments this week in:
The Court has announced that it will be posting the merits briefs in the same-sex marriage cases: Obergfell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear. The petitioners’ opening briefs were due at 2 p.m. today and will be available on the Court’s homepage once they have been officially filed.
At 10 a.m. Monday, the Supreme Court will hear one hour of oral argument on the power of voters to take away from state legislatures the task of drawing new election district maps. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the lawmakers will be represented by Paul D. Clement of the Washington, D.C., law firm of Bancroft PLLC, with thirty minutes of time. Dividing time on the other side will be Eric J. Feigin, an assistant to the U.S. Solicitor General, representing the federal government as an amicus supporting the redistricting commission, and Seth P. Waxman of the Washington, D.C., office of Wilmer Cutler Pickering Hale & Dorr, speaking for the commission. Feigin will have ten minutes of time and Waxman, twenty.
Background
From time to time, at least since 1898, the people in America’s states have decided to take government into their own hands, withdrawing it from elected politicians when the voters think they have done the job badly, or not at all. “Direct democracy” has cycles of popularity, and may be in a new one now, as political polarization spreads worry that elected lawmakers think party first and public good second. The Supreme Court looks into such a reclaiming of people power next week.
Scholars are now analyzing Supreme Court opinions for their style as well as their substance. Keith Carlson (a computer scientist), Michael A. Livermore (a law professor), and Daniel Rockmore (a mathematician) have just posted on SSRN a quantitative analysis of the writing style of all Supreme Court opinions between 1791 and 2008. Their study provides some interesting data for avid SCOTUS watchers: They ranked each Justice by the “friendliness” of their opinions, noted changes in the complexity of Court’s use of language, and found evidence to suggest that the Justices are relying more heavily on law clerks to draft their opinions.
Whether deservedly or not, an opinion by Ninth Circuit Judge Stephen Reinhardt granting habeas relief to a state prisoner notwithstanding the deferential approach mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is often fodder for terse – if not summary – reversals by the Supreme Court. But Davis v. Ayala, which is scheduled for oral argument before the Justices next Tuesday, comes to the Court with a twist of the Justices’ own making: Rather than simply granting the single, AEDPA-based question presented by California’s petition for certiorari, the Justices added a second question to the case – one that, properly understood, may well signal the Supreme Court’s inclination to dig into some of the merits of respondent Hector Ayala’s habeas claim, and not just provide another reprimand to the Ninth Circuit for a lack of fealty to AEDPA. And although California may well prevail on those merits, the potential significance of the Justices even reaching the substance of Ayala’s claims could yield the most significant habeas decision of the current Term. Continue reading »
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