UPDATE 5:15 p.m.   The list of court rulings striking down state same-sex marriage bans lengthened again on Monday, as a state judge in Fort Lauderdale, Fla., found that state’s law unconstitutional.  The ruling (found here) is the third by a state judge in Florida; the issue is now moving through appeals, so the Fort Lauderdale judge put the new ruling on hold.   Meanwhile, the U.S. Court of Appeals for the Third Circuit denied rehearing in a Pennsylvania case, perhaps bringing to an end a single county clerk’s attempt to make a defense of that state’s same-sex marriage ban, struck down earlier by a federal judge.  State officials chose not to continue a defense.

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A county clerk in Oklahoma is planning to take a same-sex marriage case to the Supreme Court — the third such case on the way to the Justices, probably in time for a reaction during the Term that opens in October.  Lawyers for Tulsa County Clerk Sally Howe Smith announced Friday that they will seek to go directly to the Supreme Court, bypassing any chance for further review in the U.S. Court of Appeals for the Tenth Circuit.

When the Tenth Circuit on July 18 struck down Oklahoma’s ban, it put its ruling on hold pending a petition for review that it apparently assumed would be filed in the Supreme Court.  Now, Clerk Smith’s attorneys have confirmed that she will be pursuing such an appeal.

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Petition of the day

By on Aug 1, 2014 at 10:11 pm

The petition of the day is:

13-1314

Issue: Whether the provision of the Arizona Constitution that divests the Arizona Legislature of any authority to prescribe congressional district lines violates the Elections Clause of the United States Constitution, which requires that the time, place, and manner of congressional elections be prescribed in each state by the “Legislature thereof.”

A county clerk in Virginia signaled on Friday that she will be asking the Supreme Court in the next three months to consider the constitutionality of that state’s ban on same-sex marriage.  This would be the second such case making its way to the Court by this fall; the state of Utah said earlier that it will pursue a case there to defend its own state ban.

In Virginia, Michele B. McQuigg, who is the county clerk of Prince William County, a jurisdiction just south of Washington, D.C., asked the U.S. Court of Appeals for the Fourth Circuit to delay its July 28 decision striking down the Virginia ban on same-sex marriages.  She asked for a ninety-day delay to allow her to file a petition for review in the Supreme Court, which she said her lawyers would file by October 26.

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FURTHER UPDATE Monday 11:20 a.m.  The Supreme Court petition in King v. Burwell, filed by the challengers to the subsidies, has now been docketed as 14-114.   The government’s response is due September 3, unless it obtains added time to file.  By that time, the government may know whether the D.C. Circuit is going to rehear the case in that court, Halbig v. Burwell.  [Note:  The case page for King v. Burwell is now available here.]

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FURTHER UPDATE Friday 5:46 p.m.  Acting swiftly, the D.C. Circuit on Friday called for a response from the challengers to the tax subsidies, with the filing on the question of en banc review due within fifteen days, and limited to fifteen pages.  The order is here.

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UPDATE Friday 3:51 p.m.  The Obama administration went ahead on Friday with its plan to ask the U.S. Court of Appeals for the D.C. Circuit to reconsider, before the full en banc court, the decision that would bar tax subsidies to purchase health insurance on the “exchanges” operated by the federal government in thirty-four states.  The filing can be found here.  The government estimated that, so far, some 5.4 million people have obtained insurance on the federal exchanges, and eighty-seven percent of them did so with tax subsidies.   That works out to about 4.7 million individuals affected by this dispute.  The government counts thirty-four states as having federally run exchanges.  It is unclear, at this point, what effect — if any — this filing would have on the Supreme Court’s willingness to hear the petition discussed in the post below.  If it chose to await the outcome of the D.C. Circuit case, that could delay action on the underlying subsidies question.

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Nine days after two federal appeals courts reached opposite rulings on a major new threat to the federal health care law, challengers pursuing that threat rushed to the Supreme Court on Thursday with a plea to step in and settle the dispute as soon as possible.   A petition for review was filed in a case from the U.S. Court of Appeals for the Fourth Circuit, which had rejected the challenge on July 22.  That conflicted directly with a ruling on the same day by the U.S. Court of Appeals for the District of Columbia Circuit (see this earlier post.)

At issue in the new case of King v. Burwell is whether government tax subsidies that have enabled millions of lower-income Americans to afford to sign up for individual health care coverage are illegal because they were granted for use on insurance marketplaces set up by the federal government.  Those exchanges are functioning in thirty-six states.

If those subsidies are now declared to be available only in the fourteen states that have created their own exchanges at the state government level, it is widely understood that this could cause the collapse of the entire economic edifice of the new health care law.  The number of customers getting insurance on exchanges in so few states, and the essential role the subsidies play in the overall scheme, apparently would mean that the pool of purchasers would be far too small to support the ACA nationwide, as it is now crafted.

The new law depends heavily upon insurance companies being able to afford new guarantees of coverage even for people with pre-existing medical problems, coverage for children on their parents’ policies even as the children become adults, and other improved health care financing.  The subsidies issue affects not only individuals shopping for insurance in the marketplaces, but also the duty of employers to provide health care coverage for their workers.  Both individuals and company participation are needed to help bring in younger, healthier individuals to help cover the expansion of coverage for those already troubled by medical afflictions.

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Petition of the day

By on Jul 31, 2014 at 10:10 pm

The petition of the day is:

Goins v. Lazaroff
13-1517

Issue: Whether an aggregate prison term imposed on a juvenile for non-homicide offenses that does not permit release before 100 years of age constitutes a sentence of life without parole as prohibited by the Eighth Amendment to the U.S. Constitution.

In an exclusive interview, Supreme Court Justice Ruth Bader Ginsburg talks with Yahoo Global News Anchor Katie Couric about everything from retirement to her jabots and the Court’s recent decision in Burwell v. Hobby Lobby.  Links to excerpts on specific subjects are included after the jump.
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Thursday round-up

By on Jul 31, 2014 at 9:05 am

Justice Ruth Bader Ginsburg has been in the news, with the release of excerpts from her interview with Katie Couric of Yahoo! News.  Among other things, the Justice indicated that she has no plans to retire.  Josh Gerstein reported on the interview for Politico.

In Bloomberg Businessweek, Paul Barrett reports on the possibility that a recent ruling by a federal district judge, striking down the District of Columbia’s ban on carrying handguns in public, may wind up at the Supreme Court, describing the case as “an irresistible opportunity to address the public-carry issue, despite any uncertainty that may exist about Justice Kennedy’s leanings.”  (Lyle Denniston reported on that ruling for this blog.)  Continue reading »

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Petition of the day

By on Jul 30, 2014 at 10:19 pm

The petition of the day is:

Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.
13-1371

Issue: (1) Whether disparate-impact claims are cognizable under the Fair Housing Act; and (2) if disparate-impact claims are cognizable under the Fair Housing Act, what standards and burdens of proof should apply.

 

Capture

What civil liberties challenges we face next, the importance of Edward Snowden, the “newness” of technology and thinking about civil liberties in a climate of fear, and the qualities a Supreme Court Justice will need.

In this six-part interview, Steven R. Shapiro, legal director of the American Civil Liberties Union (ACLU) since 1993, discusses his background; the ACLU’s history and mission; what civil liberties and Supreme Court advocacy look like now; and what civil liberties challenges we face next.

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Lawyers for Abigail Fisher, who has been pursuing a lengthy court challenge to the use of race in admitting students to the University of Texas in Austin, on Tuesday asked the full U.S. Court of Appeals for the Fifth Circuit to reconsider a new decision upholding the policy.  En banc review is necessary, the new petition argued, because the majority of the three-judge panel disobeyed orders from the Supreme Court to rethink a prior ruling allowing some use of race.

Last year, the Supreme Court returned the case to the Fifth Circuit, with instruction to apply a new and more restrictive analysis to the part of the Texas admissions plan that relies in part upon the applying students’ race to fill about one-fifth of each freshman class.  Earlier this month, the panel upheld the plan for the second time, finding that the university had again made its case.

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