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Monday round-up

More commentary on the March 23 oral argument in Zubik v. Burwell, the challenge to the accommodation offered to religious non-profits that object to the Affordable Care Act’s birth-control mandate, as well as last week’s order asking for supplemental briefing in the case, comes from Steven Mazie, who in The Economist suggests that the Justices “are apparently evenly split again” but reluctant “to issue a ruling that sets no precedent and leaves in place a legal hodgepodge whereby women working at religious non-profits in most of the country enjoy cost-free birth control under Obamacare while their counterparts in seven southern and midwestern states do not”; and Leland Beck, who in the Federal Regulations Advisor concludes that the order “suggests more concretely that SCOTUS has problems with whether the regulatory accommodation is sufficient.”

In the wake of last week’s ruling in Friedrichs v. California Teachers Association, in which an equally divided Court affirmed a ruling by the Ninth Circuit upholding an “agency fee” for public-sector employees who decline to join the union that represents them, Education Week’s Mark Walsh looks at “five cases percolating in the lower courts that challenge various aspects of union obligations of non-members.”  Commentary comes from Ruben Garcia, who at Hamilton and Griffin on Rights contends that “the tensions raised by Friedrichs will not likely go away easily, nor will the misconceptions about public sector unions that the case raised in the heat of the media spotlight.”

Commentary on last week’s decision in Luis v. United States, holding that the pretrial restraint of a criminal defendant’s untainted assets violates the Sixth Amendment, comes from Lisa Soronen, who discusses the effect of the ruling on state forfeiture statutes at the blog of the National Conference of State Legislatures; and Steve Klepper, who at the Maryland Appellate Blog suggests that Justice Elena Kagan’s dissenting opinion, when “read together with a prior opinion on pretrial seizures, sends an important message to the criminal defense bar – go big or go home.”


  • In The Washington Post, Jeff Guo weighs in on a new North Carolina law that (among other things) limits what bathrooms transgendered people may use, noting that it “may force the Supreme Court to confront a question that for decades it has stubbornly refused to answer: What does the Constitution actually imply about gay rights?”
  • The Northwestern University Law Review Online hosts a podcast in which Andrew Koppelman and Steven Calabresi discuss the legal legacy of the late Justice Antonin Scalia.
  • In the Georgia Law Review Online, Nicholas Nunn discusses U.S. Army Corps of Engineers v. Hawkes Co., in which the Court heard oral arguments last week.
  • Coverage of the nomination of Judge Merrick Garland to succeed Justice Antonin Scalia comes from Emmarie Huetteman, who in The New York Times reports that two Republican senators have withdrawn their earlier support for holding hearings.
  • Lydia Wheeler of The Hill reports that “President Obama is facing the very real possibility of a deadlock at the Supreme Court that guarantees his immigration actions won’t take effect before he leaves office.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on amicus briefs filed in support of the respondents in Friedrichs and Zubik.  However, I am not affiliated with the firm.] 


Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (Apr. 4, 2016, 7:05 AM),