Editor's Note :

Editor's Note :

The Court's plans for release of opinions this week remain unclear. We will have a live blog on both Tuesday and Wednesday, just in case.
Tuesday's live blog will be available here.
Wednesday's live blog will be available here.

We are live blogging this morning as opinions are issued; please click here to be taken to the live blog.

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Tuesday round-up

By on Feb 24, 2015 at 7:13 am

The Court returned for the February sitting yesterday, hearing arguments first in Kerry v. Din, in which the Court is considering whether a U.S. citizen has a right to judicial review of a consular officer’s denial of her husband’s visa application.  Coverage comes from Nina Totenberg of NPR.  Yesterday’s second case was Coleman v. Tollefson, in which the Court is considering when a prisoner’s lawsuit becomes a “strike” for purposes of the Prison Litigation Reform Act’s “three strikes” provision.  Steve Vladeck covered the argument for this blog.  At ISCOTUSnow, Edward Lee predicts the winners of both of yesterday’s cases based on the number of questions at oral argument.

Next week’s oral arguments in King v. Burwell, in which the Court will consider whether tax subsidies are available to individuals who purchase their health insurance on an exchange established by the federal government, continue to spur coverage and commentary.  I published my Plain English preview of the case yesterday at this blog, while in his Sidebar column for The New York Times Adam Liptak looks at the standing issue in the case and Kent Scheidegger does the same at Crime and Consequences.  At ACSblog, Timothy Jost discusses his new article with Jim Engstrand in which they argue that over fifty “other provisions of the ACA . . . become anomalous, if not absurd, if the words ‘established by the State’ are read to exclude FFEs.”  At The Incidental Economist, Nicholas Bagley agrees that “Jost and Engstrand are on exactly the right track: they’re building a statutory case, premised on the text of the ACA as a whole, in favor of the government’s interpretation.”  At Slate, Ian Millhiser cites the case to illustrate his argument that “there are early signs that the Supreme Court’s present members may be willing to repeat the sins of the past, arbitrarily ignoring both the text of the law and their own previous decisions in service of a political agenda.”  Continue reading »

Posted in Round-up
 
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Petition of the day

By on Feb 23, 2015 at 10:22 pm

The petition of the day is:

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Issue: Whether a trial court's complete denial of a criminal defendant's constitutional right to testify is amenable to harmless-error analysis.

From early on in Monday’s oral argument in Coleman-Bey v. Tollefson, it was quite clear that the Justices were unpersuaded that the so-called “three strikes” provision of the Prison Litigation Reform Act of 1996 (PLRA) – which bars prisoners from filing fourth or successive civil suits absent exigent circumstances unless they can afford the hefty federal filing fee – is clear about whether a prior dismissal of a prisoner’s suit counts as a strike even while that dismissal is properly under appeal. In the abstract, a conclusion that the relevant statutory provision is ambiguous ought to militate in favor of the petitioner, Michigan prisoner André Lee Coleman-Bey, whose proposed interpretation – that a prior dismissal counts as a strike only once it becomes “final” on appeal – would be quite easy for lower courts to administer going forward. Continue reading »

 
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If two states have already split payment of fees and costs running well into six figures to keep a case going before the Supreme Court, but it could be resolved now for a final five-figure amount, is it worth continuing?  And if, as interstate river disputes go, this one involves only a drop in the bucket, why go on with it?

The Court raised those questions on Monday about a fight between two western states over use of the waters of a river they share.   The Court bluntly suggested that the time may have come to settle.

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Today’s transcripts

By on Feb 23, 2015 at 4:05 pm

The transcript in Kerry v. Din is here

The transcript in Coleman v. Tollefson is here

Posted in Merits Cases
 
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sSC150223sketch_Sotomayor

(Art Lien)

When the Supreme Court took the bench this morning after its monthlong winter recess, Justice Sonia Sotomayor was sporting a hard cast on her right arm.

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Nearly three years ago, the Supreme Court decided a huge challenge to President Barack Obama’s signature legislature achievement, the Affordable Care Act. The question was whether the Constitution allowed Congress to require everyone to buy health insurance or pay a penalty. In a dramatic opinion on the last day of that Term, Chief Justice John Roberts joined the Court’s four more liberal Justices in ruling that it does, so the law survived.

Obamacare is back at the Court again this year. This time, the challenge is to how to interpret the Act, rather than whether it violates the Constitution. Although there’s no grand constitutional showdown, the stakes are nearly as high as they were three years ago, because a ruling in favor of the challengers could gut how the Act functions. Let’s talk about King v. Burwell in Plain English.

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Just when the Justices might have thought they had decided their share of attorney’s fees cases – with the twin decisions last April in Octane Fitness v. Icon Health and Fitness and Highmark Inc. v. Allcare Health Management Systems resolving questions about attorney’s fees in patent cases – the Justices are returning again to that topic this week in Baker Botts L.L.P. v. ASARCO LLC. The specific question in this case is whether the provision of the Bankruptcy Code allowing the bankruptcy court to compensate lawyers who work for the estate (11 U.S.C. § 330(a)) permits compensation for time spent defending a fee application.

Recognizing that many of my potential readers might have moved on as soon as they read what the issue is here, I have to say this is a case in which the briefing was particularly interesting. Reminiscent of Hana Financial Inc. v. Hana Bank earlier this Term, the statement of facts in the Baker Botts brief was, for me at least, so telling that it strongly predisposed me in favor of Baker Botts.   Recognizing that anybody on the side of compensation for such a socially distasteful activity as litigation over fees has an uphill battle, the statement in this case was a true work of craft.

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The Supreme Court’s hesitancy about ruling on challenges to the government’s massive electronic wiretapping program continued on Monday, as the Justices refused, without comment, to hear the constitutional case of a young Illinois man awaiting trial for an alleged bombing plot in Chicago.   The federal government had chosen not to respond to the case, which very likely doomed any chance the case might otherwise have had to be heard.

Daoud v. United States was the first case, in the nearly four-decade history of electronic spying by the U.S. government to gather foreign intelligence, in which a federal judge had ordered the government to turn over secret papers about how it had obtained evidence through wiretaps of telephones and Internet links.  That order, however, was overturned by the U.S. Court of Appeals for the Seventh Circuit, whose ruling was the one the Justices on Monday declined to review.

The denial of that case came on a lengthy list of orders the Justices issued upon returning from a four-week winter recess.  The Court did not grant review in any new cases, nor did it send any cases to the Justice Department to get the federal government’s views.  Among other actions, the Court refused to reopen a case it had granted but then dismissed when the petitioner in the case failed to meet a filing deadline.  That case was Chen v. Mayor and City Council of Baltimore.

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