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Wednesday round-up

Monday’s two decisions in argued cases continue to generate coverage and commentary.  In Heien v. North Carolina, the Court held that a police officer’s reasonable mistake of law can provide the reasonable suspicion that justifies a traffic stop under the Fourth Amendment.   At Hamilton and Griffin on Rights, Leslie Shoebotham suggests that, although the decision’s “expansion of what qualifies as a ‘reasonable mistake’ is understandably an attention-grabbing headline,” its “real impact may be in opening the door more generally to arguments that police mistakes don’t violate the Fourth Amendment.”  At The Economist’s Democracy in America blog, Steven Mazie asks “who is to say how ambiguous the law really is, or how ‘reasonable’ the officer’s mistake might be? This is, as Justice Sotomayor observes in her dissent, an untenable basis for affording the Fourth Amendment a stable, ascertainable meaning.”  And at Crime and Consequences, Kent Scheidegger argues that the Court should “stop carving out individual good-faith ‘exceptions’ to an overall rule of suppression of evidence and instead make ‘bad faith’ a required element of a defendant’s motion to suppress evidence.”  Finally, at Re’s Judicata, Richard Re suggests that Justice Elena Kagan’s concurring opinion, joined by Justice Ruth Bader Ginsburg, “might be an example of ‘aspirational narrowing,’” but he concludes that “[i]t’s less clear that [her] efforts will be successful.”

The Court’s other opinion was Dart Cherokee Basin Operating Company v. Owens, in which the Court held that a notice of removal must only include a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; it does not need to contain evidentiary submissions.  Ronald Mann covered the decision for this blog; commentary comes from Scott Dodson in posts at the Civil Procedure & Federal Courts Blog and PrawfsBlawg; he ties Dart to the Court’s 2007 decision in Bell Atlantic Corp. v. Twombly and argues that “without citation or, frankly, any reasoning at all, ‘plausibility’ has snuck into yet another place where it doesn’t belong.”

The en banc D.C. Circuit was originally scheduled to hear oral arguments today in Halbig v. Burwell, one of the challenges to the availability of tax subsidies for individuals who purchase health insurance on an exchange operated by the federal government.   However, the D.C. Circuit put that appeal on hold after the Court granted review in a similar challenge, King v. Burwell.  At the Constitutional Accountability Center, Kelly Landis and Joey Meyer contend that the D.C. Circuit’s announcement that it would rehear the case en banc is “the part that really makes clear how anomalous the Supreme Court’s decision to hear King was:  it is exceedingly rare for the Court to pre-empt an appellate court’s en banc consideration of an issue, particularly when that en banc consideration eliminated any split among lower courts on the issue.”  And Sahil Kapur of Talking Points Memo reports that “the Republicans who will run Congress next year may be unintentionally undermining their chances of a victory in King v. Burwell, by arguing that a defeat for the Obama administration would gravely damage the law and signaling they would not fix the language at issue in Obamacare.”


  • At BuzzFeed, Chris Geidner summarizes the latest developments in the challenges to state bans on same-sex marriage, reporting that “[c]ases from five states are now before the Supreme Court raising the constitutional question of same-sex couples’ rights to marry and have their marriages recognized, with cases from two more states on the way and a related request from an eighth state pending there as well.”
  • At the Pacific Legal Foundation’s Liberty Blog, Wen Fa discusses the theory of disparate impact liability, at issue next month in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; he argues that, “[a]t the very least, disparate impact theory is out-of-tune with constitutional values embodied in the Equal Protection Clause.”
  • Writing for Greenwire, Jeremy P. Jacobs reports that, “[i]f coal companies get their way when the Supreme Court reviews U.S. EPA’s air standards for mercury and other hazardous emissions, they could undermine their primary legal challenge to another landmark pollution rule: President Obama’s greenhouse gas limits for power plants.”

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Recommended Citation: Amy Howe, Wednesday round-up, SCOTUSblog (Dec. 17, 2014, 6:40 AM),