The problem of fixing the federal health care program will only grow worse if the Supreme Court does not promptly resolve the legality of subsidies to help lower-income individuals pay for insurance, the challengers to the subsidy scheme told the Justices on Tuesday.  This was the formal reply to the Obama administration’s argument early this month that the Court should wait to see how a federal appeals court deals with the subsidies’ legality.

Trying to head off a denial of review by the Justices of their challenge this Term, their new filing argued that postponing the dispute “would be the worst possible course,” because millions of individuals who have come to rely on the subsidy payments face the prospect of losing them as the dispute lingered in the courts, and employers, insurers and states have also relied on the system as the government now operates it.

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Today’s transcripts

By on Oct 14, 2014 at 3:05 pm

The transcript in Kansas v. Nebraska is here

The transcript in North Carolina State Board of Dental Examiners v. FTC is here

Posted in Merits Cases

Despite all the money and resources poured into Supreme Court amicus briefs these days, it is relatively rare that an amicus substantially influences the central merits of a case. However, an amicus brief filed by the Criminal Justice Legal Foundation in Jennings v. Stephens, the second argument this Wednesday, may be such a brief. It provides a balanced analysis of the legal question presented — although the ultimate disposition that the brief suggests may prove too much for some of the Justices. Continue reading »

The longstanding question of a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt will linger further.  Over the dissents of three Justices — one fewer than the number needed to grant review — the Court on Tuesday turned aside the latest attempt to get that constitutional question answered.  The denied case was Jones v. United States.

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Tuesday round-up

By on Oct 14, 2014 at 8:28 am

The Court resumes oral arguments today, kicking off the second and final week of the October sitting.  Today the Court will hear oral argument first in the water-rights case Kansas v. Nebraska and Colorado.  Ryke Longest previewed the case for us; Jeremy P. Jacobs does the same for Greenwire. The Court will also hear oral argument in the antitrust case North Carolina Board of Dental Examiners v. FTC, which Eric Fraser previewed for us.

Events at the Court last week – and in particular the Court’s announcement that it would not review any of the seven petitions arising out of challenges to state bans on same-sex marriage – continue to garner coverage and commentary.  This blog’s Tom Goldstein joined Dahlia Lithwick to discuss the week in a podcast for Slate Radio, while at Hydratext Anthony Kreis discusses the possible strategy behind the denials in a podcast with Christian Turner and Joe Miller.  In USA Today, Richard Wolf looks more broadly at the Court’s decision to deny review in the same-sex marriage cases, observing that, “when the court gave same-sex marriage the green light across major sections of the country last week, the battle cry from conservatives was muted at best.”  And at Dorf on Law, Michael Dorf considers the “relative importance of inter-circuit conflict and state-circuit conflict” in the Court’s decision whether to grant cert.  Continue reading »

Posted in Round-up

Petition of the day

By on Oct 13, 2014 at 10:05 pm

The petition of the day is:


Issue: Whether the court of appeals erred in holding – in conflict with the Second, Seventh, Eighth, and D.C. Circuits – that district courts can, consistent with Federal Rule of Civil Procedure 23 and Article III of the Constitution, certify classes that include numerous members who have not suffered any injury caused by the defendant.

Arguing that the Ninth Circuit panel that ruled against the Nevada ban on same-sex marriage last week did not appear to have been selected by a neutral process, a private group in that state on Monday asked the full Ninth Circuit to reconsider that ruling to assure that the group got a fair hearing.

The plea by the Coalition for Protection of Marriage, based in Nevada, was filed Monday, along with a statistical study which was said to show that two of the Ninth Circuit’s more liberal judges wind up most often on panels deciding cases involving gay rights.  They were on the Nevada case panel.

“En banc review is necessary to assure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral,” the rehearing petition asserted.

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Acting swiftly on a holiday afternoon, the U.S. Court of Appeals for the Ninth Circuit cleared the way for same-sex couples in Idaho to begin seeking marriage licenses as of noon (Eastern time) on Wednesday.  The three-judge panel acted Monday without waiting for the arrival of some of the briefs it had summoned on that issue last Friday.

With the two-day delay before the order is to take effect, state officials in Idaho are expected to return to the Supreme Court to seek a delay — a repeat of the effort that the Justices turned down last Friday.  In new filings in the Ninth Circuit earlier Monday, Idaho’s governor had said that his lawyers read last week’s refusal by the Justices to delay those marriages to be an action of little consequence, and that a new plea for postponement would be made with the Justices if the Ninth Circuit refused a delay.  (Those new filings are here and here.)

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