Editor's Note :

Editor's Note :

The Court expects to issue decisions in argued cases on both Tuesday and Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 both days. The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.
Tuesday's live blog will be available here.
Wednesday's live blog will be available here.


(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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Monday round-up

By on Feb 23, 2015 at 6:17 am

Good morning!  Today the Court begins its February sitting, starting with orders at 9:30 a.m. and oral arguments at 10.  First up is the immigration case Kerry v. Din, in which the Court will consider whether a U.S. citizen has a right to judicial review of a consular officer’s denial of her husband’s visa application. Kevin Johnson previewed the case for this blog, while Chuck Roth weighs in on the case in a post at ImmigrationProf Blog.  That oral argument will be followed by oral arguments in 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 previewed the case for this blog.

Last week Howard Shipley filed his response to the Court’s order to show cause why he should not be sanctioned, presumably for his role in filing a cert. petition that was denied in early December.  Lyle Denniston covered last week’s filing for this blog, while How Appealing’s Howard Bashman has a two-part analysis (here and here) of the issues and potential outcomes in the proceeding.

Next week the Court will hear oral arguments in the most highly anticipated case of the sitting:  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. At Talking Points Memo, Sahil Kapur discusses Republican efforts to formulate a contingency plan for health care reform in the hope of persuading Chief Justice John Roberts to rule for the challengers.  Steve Peoples of the Associated Press (via Talking Points Memo) reports that “one thing was clear this weekend as the nation’s governors gathered in Washington: Many of the states that could be affected are not prepared for the potential fallout.”   In The Washington Post, Reid Wilson reports that “[g]overnors in states across the country have begun pressuring Congressional leaders and making contingency plans in case” the Court rules for the challengers.  And at truthdig, Bill Blum suggests that the case “is but a single component of a larger corporate crusade to remake American law and government, dedicated to promoting business interests and prerogatives under the guise of individual liberty.” Continue reading »

Posted in Round-up

This week at the Court

By on Feb 22, 2015 at 12:01 am

On Monday the Court issued orders, which Lyle covered here. No new cases were granted. On Tuesday the Court issued its opinion in Kansas v. Nebraska. On Wednesday the Court issued two opinions, Yates v. United States and North Carolina Board of Dental Examiners v. FTC. This is the first week of the February sitting. The next Conference is scheduled for February 27.


Petition of the day

By on Feb 20, 2015 at 10:10 pm

The petition of the day is:


Issue: Whether California’s enforcement of its labor and employment laws against motor carriers by means of a claim of unfair competition under the state’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq., is state regulation of competition between motor carriers that is preempted by the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c)(1), and therefore unconstitutional.

In an anxious plea not to be given a career-threatening punishment by the Supreme Court, a Washington, D.C., attorney — speaking through a high-profile Court advocate — argued this week that a frankly flawed petition he filed at the Court was the result of a difficult client’s demand to be the primary author, using the client’s own strange vocabulary.  The attorney, Howard Neil Shipley, has been under a threat of professional discipline by the Court since December 8.  His response, submitted Thursday and now on file, is here.

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