Commentary

Amid widening claims that religious liberty in America is under siege, the Supreme Court over the past year and and a half has reacted eight times to one of the most intense and emotionally charged conflicts within that broader controversy.  Only once has the Justices’ reaction to that particular conflict led to a full-scale decision, and yet all of its actions, taken together, do stand for something.

This is the controversy over the contraceptive, or birth-control, mandate in the Affordable Care Act – a high-stakes legal feud that has been unfolding in scores of lawsuits across the country.  It has been running for five years, and so is further along than the just-beginning conflict over the impact on religious belief of the Court’s same-sex marriage ruling last month.

The opposite sides in the birth-control dispute for years have been talking past each other about what the Supreme Court has done about that so far, and what it means, and both sides continue to try to persuade the Court to see the controversy their way.

There is a lot involved, but let’s try to make it simple.

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Fifteen years ago, Arizona voters took a drastic step to deal with partisanship in drawing the lines for federal congressional districts: they passed an amendment to the state constitution that transferred the redistricting power from the state legislature, which had previously controlled it, to an independent commission. Perhaps it comes as no surprise that the legislature objected to being cut out of the process and filed a lawsuit, which went all the way to the U.S. Supreme Court. The legislature alleged that tasking the commission with redistricting violates the U.S. Constitution’s Elections Clause, which provides that the “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof” – because the phrase “the Legislature” can only refer to the official body that makes laws for the state.

Yesterday the Supreme Court rejected the legislature’s argument, in a decision that will be welcomed by many not only in Arizona, where the independent redistricting commission can continue to operate, but also in other states (including California) that also use commissions for redistricting. Let’s talk about the ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English. Continue reading »

In 2008, the Court rejected a challenge to the three-drug protocol that Kentucky used to carry out executions by lethal injection, holding that it did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  In that case, inmates had unsuccessfully argued that there was a risk of serious pain if the protocol was not followed properly.  Today, in a decision marked by deep divisions among the Justices, the Court rejected a new lethal injection challenge –  this time to Oklahoma’s use of a drug called midazolam, a sedative normally used to treat anxiety.  Let’s talk about the decision in Glossip v. Gross in Plain English.  Continue reading »

Two years ago, Justice Anthony Kennedy joined the Court’s four more liberal Justices to strike down a provision of the federal Defense of Marriage Act defining “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman.  The Court’s ruling in United States v. Windsor meant that, going forward, same-sex couples who were married in states where same-sex marriages were legal received the same treatment under federal law as married opposite-sex couples.  Today, on the second anniversary of that decision, Justice Kennedy again joined Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan in holding both that states must allow same-sex couples to marry and that they must recognize same-sex marriages from other states.  Let’s talk about the decision in Obergefell v. Hodges in Plain English.

Chief Justice Roberts dissents on same sex marriage (Art Lien)

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Civil rights groups are breathing a little easier today, after the Court’s ruling in an important housing discrimination case. The question before the Court was whether claims brought under the Fair Housing Act, which prohibits housing discrimination “because of” race, can be based on an allegation that a law or practice has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate. The distinction matters because it’s rare for a lawmaker, landlord, or developer to admit that a law or practice is intended to be discriminatory; civil rights groups believe that disparate-impact claims are an important tool to ferret out more subtle examples of housing discrimination. Continue reading »

Since it was enacted in 2010, Republicans in Congress have voted dozens of times to repeal the Affordable Care Act, President Barack Obama’s signature legislative achievement.  With no success on the legislative front, opponents of the ACA have tried their luck in the courts, but that avenue hasn’t proven any more fruitful.  Three years ago, the Court upheld the Act’s individual mandate, which compels everyone to buy health insurance or pay a penalty, against a challenge based on the argument that Congress lacked the power to impose such a requirement.  And today the Court turned back a challenge to the subsidies that many people receive to pay for their health insurance, ending a case that had the potential to seriously undermine the ACA, if not dismantle it altogether.  Let’s talk about today’s decision in King v. Burwell in Plain English.

Chief Justice Roberts announces Obamacare opinion (Art Lien)

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Yesterday the Justices were back in the Courtroom to issue four decisions in major cases involving the Fourth Amendment, patent royalties, the Constitution’s Takings Clause, and claims that prison officials used excessive force against arrestees.  With those four cases now in the history books, the Justices have only seven more opinions to issue before they head out for their summer vacations.  At least one of those opinions could prove to be a blockbuster for the ages, but they are all likely to be, at the very least, highly significant.  Let’s talk about those cases in Plain English.  Continue reading »

Shortly after his birth in Jerusalem in 2002, Menachem Zivotofsky’s parents applied for a U.S. passport for their infant son.  The two U.S. citizens exercised their right under a 2002 law to ask the State Department to designate “Israel” as Menachem’s place of birth.   The State Department turned down the family’s request: it explained that, notwithstanding the 2002 law, the U.S. government had a decades-old policy of not recognizing any country as having sovereignty over the holy city of Jerusalem.

The Zivotofskys went to court to challenge that decision, kicking off a campaign that would last almost thirteen years.  Today that battle finally ended in a victory for the federal government, with six Justices on the Supreme Court agreeing that the 2002 law is unconstitutional because it conflicts with the president’s “consistent decision” not to recognize Jerusalem as the capital of Israel.   But even while resolving this long-disputed issue, which could have affected the roughly 52,000 U.S. citizens whose passports designate their place of birth as “Jerusalem,” the Court’s ruling may have left the door open for other skirmishes between Congress and the president in the future – including with regard to changes in U.S. policy toward Cuba.  Let’s talk about today’s decision in Zivotofsky v. Kerry in Plain English. Continue reading »

In 2008, Oklahoma teenager Samantha Elauf applied for a job as a salesperson at retail giant Abercrombie & Fitch. Elauf is a devout Muslim who believes that her religion requires her to wear a headscarf. But the company has a dress code that prohibits its employees from wearing – among other things – “caps.” When Abercrombie didn’t hire Elauf, and a company employee indicated that the rejection was attributable to the headscarf, she went to the Equal Employment Opportunity Commission, which filed a lawsuit on her behalf.   A lower court ruled for Abercrombie, reasoning that it could not be held liable because Elauf had not specifically said that she was wearing the scarf for religious reasons. Yesterday, the Supreme Court reversed that ruling – yet another in a series of victories for religious rights at the Roberts Court. Continue reading »

First, there was hanging.  Then there was the electric chair, or in some places the gas chamber and the firing squad.  More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions.  The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution:  the prisoner could simply drift off, as if he were sleeping.

In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly.  But that didn’t end the debate, particularly after several well-publicized botched executions.   And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures.  After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself.  Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English. Continue reading »