Wednesday round-up

The justices wrap up the first week of the January session this morning with one oral argument, in Babb v. Wilkie, which asks whether federal employees suing under the Age Discrimination in Employment Act must prove that age discrimination was a but-for cause of an adverse employment action. Charlotte Garden previewed the case for this blog. Lachanda Reid and Gabriela Markolovic have a preview at Cornell Law School’s Legal Information Center.

Yesterday the court released two opinions. In Ritzen Group Inc. v. Jackson Masonry, LLC, a unanimous court held that a bankruptcy court’s order denying a creditor’s motion to lift the automatic stay of efforts by creditors to collect debts from the debtor is a final order that the creditor can appeal. Ronald Mann analyzes the opinion for this blog. And in a per curiam opinion in Retirement Plans Committee of IBM v. Jander, the court sent the case back for the lower court to consider issues that were raised in the briefing but had not been decided below. Ronald Mann has this blog’s opinion analysis.

Amy Howe analyzes yesterday’s argument in Kelly v. United States, which stems from the “Bridgegate” controversy in New Jersey and involves the extent to which federal fraud statutes cover the politically motivated acts of public officials, for this blog, in a post that first appeared at Howe on the Court. Mark Walsh provides this blog with a first-hand account of the argument. Jess Bravin reports for The Wall Street Journal (subscription required), that the court “appeared divided … over whether flooding a New Jersey town with traffic as political retribution against its mayor violated federal fraud laws, ” and that “several justices questioned whether the use of public resources for political payback met the criteria for fraud under federal law, which requires using deceit to obtain property.” At Fox News, Bill Mears reports that “[t]he high court in recent years has tightened the standard on using federal anti-corruption laws to go after public officials … [; n]ow the justices could make it harder for anti-fraud and conspiracy charges to be applied.” Additional coverage comes from Nina Totenberg at NPR, Kevin Daley at the Daily Caller, and Pamela King at E&E News, who reports that the issue “could have major implications for federal policymakers.”

Megan La Belle has this blog’s analysis of Monday’s argument in Lucky Brand Dungarees v. Marcel Fashions Group, which asks whether, when a plaintiff asserts new claims, a defendant can raise defenses that were not actually litigated and resolved in any prior cases between the parties. Dana Muir analyzes Monday’s second argument, in Thole v. U.S. Bank, in which the justices considered whether a participant in a defined-benefit pension fund that meets minimum-funding criteria can sue the fund managers when he has not actually suffered any financial injury, for this blog.

Briefly:

• For The New York Times, Adam Liptak writes that Chief Justice John Roberts’ responsibilities at President Donald Trump’s upcoming impeachment “trial are fluid and ill-defined, and they will probably turn out to be largely ceremonial,” but “[w]hat is certain is that they will be full of peril for his reputation and that of his court.”
• At The New Republic, Melissa Gira Grant explains that “to understand how the Harris Funeral Homes case,” which asks whether federal law protects employees from discrimination on the basis of gender identity, “got before the high court, we need first to grasp the depressing degree to which the ‘T’ in the still-evolving ‘LGBTQ’ formulation remains in many ways a legal and political afterthought.”
• At Vox (via How Appealing), Ian Millhiser notes that “[a]s soon as Friday, the Supreme Court could announce that it will hear … two consolidated cases examining the Trump administration’s rules allowing virtually any employer to deny birth control coverage to its employees,” which “reignite a legal conflict over the rights of employers who object to contraception on religious grounds.”
• At Balkinization, Marty Lederman weighs in on two requests for expedited review of a lower court ruling that the Affordable Care Act’s individual mandate is unconstitutional, arguing that “the Court ought to grant the petitions (and thus the motions to expedite) because of the stratagem that two judges on the Fifth Circuit employed here and the foreseeable effects their manipulations will have.”

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