The Supreme Court on Thursday rejected a request from Republicans in Montana to block a plan that will allow county election officials to choose whether to send mail-in ballots to all registered voters in the state on Oct. 9. Justice Elena Kagan, who fields emergency requests from the geographic area that includes Montana, denied the plea without calling for a response from Montana Gov. Steve Bullock or referring the request to the full court. Continue reading »

The Supreme Court concluded its first week of oral arguments Wednesday by hearing arguments in Google v. Oracle, which involves the copyright status of certain types of computer code, and Ford Motor Co. v. Montana Eighth Judicial District Court, which involves the extent of personal jurisdiction over out-of-state defendants. The justices will return to the (telephonic) bench next week. On Wednesday night, the court received an emergency request from the Trump administration, which is seeking to block a lower court’s order requiring the 2020 census count to continue through the end of October. Continue reading »

John Elwood reviews the relists from the “long conference” … barely.

The Supreme Court began October 2020 with black crepe still draped over an empty bench as, for only the second time in its history, it began a sitting of remote telephonic arguments. But though they were down a member and working remotely, the justices went efficiently about their business, relisting 15 cases involving a host of issues. Because the press of business is especially pressing just now, this week we’ll once again be favoring our readership with the affordable luxury of Relist Watch Select.^TM Continue reading »

Nicholas J. Bronni, solicitor general of Arkansas, argues remotely for petitioner (Art Lien)

The justices heard argument on Tuesday in Rutledge v. Pharmaceutical Care Management Association, which asks them once again to consider the extent of preemption under the Employee Retirement Income Security Act of 1974, commonly called ERISA. In this case, the court considers an Arkansas law that regulates the reimbursements that pharmacies receive when they sell prescription drugs.

The problem arises from the routine use by employee health-insurance plans of pharmacy benefit managers, or “PBMs,” to administer the prescription drug benefits that the plans provide (OptumRX, for example, is one major PBM). Typically, at least with respect to generic drugs, the PBM sets the price it will pay a pharmacy for each drug by reference to a document that establishes a maximum allowable cost, or “MAC,” for each particular medication. Local pharmacies argue that the prices set in the MAC lists are so low that they cannot profitably sell many of the medications on the lists. Responding to those complaints, more than 40 states have adopted rules regulating various activities of PBMs. The statute in this case obligates PBMs to pay retail pharmacies the invoice price stated by the pharmacies’ wholesaler (even if that “invoice price” is higher than the price at which the pharmacy actually purchased the drug from the wholesaler). It also imposes numerous procedural requirements related to the timing for appeals when pharmacies challenge MAC prices, the speed with which PBMs must update their MAC lists, and the like. Continue reading »

On the second day of the Supreme Court’s new term, the justices heard arguments in Rutledge v. Pharmaceutical Care Management Association (involving states’ efforts to regulate the private intermediaries between insurance companies and pharmacies) and Tanzin v. Tanvir (involving the availability of money damages in religious-freedom lawsuits). In the latter case, Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court), the justices appeared divided — and not necessarily along ideological lines. Also on Tuesday, Justice Stephen Breyer rejected a request from Maine Republicans asking the court to block the state from using ranked-choice voting in next month’s presidential election. Continue reading »

The Supreme Court on Tuesday rejected a plea by Republicans in Maine to block the state from using ranked-choice voting in the upcoming presidential election. Justice Stephen Breyer, who handles emergency appeals from the geographic area that includes Maine, turned down the request without comment and without referring the appeal to the full court, suggesting that Breyer did not regard it as a particularly close call. Continue reading »

The Supreme Court heard oral argument on Tuesday morning on whether a federal law passed in 1993 to protect religious freedom allows three Muslim men who allege that they were placed on the “no fly” list after they refused to become FBI informants to sue FBI agents for money damages. Although the format of the telephonic oral arguments makes the justices harder to read than usual, the court seemed divided – and not necessarily along ideological lines. With an eight-member court, that could favor the plaintiffs, because the lower court’s ruling allowing their lawsuit to go forward would stand if the justices were to divide 4-4.

From CUNY Law School, Ramzi Kassem argues for respondents (Art Lien)

The plaintiffs in the case, Tanzin v. Tanvir, are U.S. citizens or green card holders. Muhammad Tanvir, Jameel Algibhah and Naveed Shinwari claimed that their placement on the “no fly” list in retaliation for their refusal to become informants against fellow Muslims violated the Religious Freedom Restoration Act. RFRA prohibits the government from placing a “substantial burden” on an individual’s exercise of religion unless that burden advances a compelling government interest and there is not a less restrictive way to achieve that interest. Continue reading »

From 1990 until 2010, the Supreme Court decided no cases about personal jurisdiction, the legal doctrine controlling when a defendant can be made to litigate within a state. For perspective, Justice David Souter joined the court in fall 1990 and retired in summer 2009 without hearing one personal-jurisdiction case. Since 2010, however, personal jurisdiction has become a hot issue on the court’s docket. The latest case, Ford Motor Co. v. Montana Eighth Judicial District (consolidated with Ford Motor Co. v. Bandemer), considers whether state courts in Montana and Minnesota have personal jurisdiction over two lawsuits against Ford, which sells cars in both states but manufactured and sold the specific cars at issue out-of-state. The court rescheduled this case from last term and will hold telephonic argument on Wednesday. Continue reading »

The first day of the Supreme Court’s 2020-21 term was a busy one. An eight-justice court heard oral arguments (via telephone) in Carney v. Adams, a First Amendment case about whether Delaware can choose its state judges based on party affiliation, and Texas v. New Mexico, a dispute about water rights along the Pecos River. In the first case, Amy Howe reports for SCOTUSblog (in a story first published at Howe on the Court), the justices seemed skeptical of Delaware’s party-affiliation rules but also were concerned about the challenger’s legal standing. In the second case, Reed Benson writes that most members of the court seemed inclined to side with New Mexico. Also on Monday, the court released a long list of orders, which contained no new cert grants but called for the views of the federal government in three cases and contained a notable statement from Justice Clarence Thomas criticizing the court’s 2015 ruling on same-sex marriage. And on Monday night, in an emergency order, the court reinstated a South Carolina requirement for voters to sign absentee-ballot envelopes in the presence of a witness. Continue reading »

The Supreme Court on Monday gave election officials in South Carolina the green light to enforce a state law that requires voters to sign absentee-ballot envelopes in the presence of a witness. The lower courts had barred the state from imposing the witness requirement, concluding that doing so during the COVID-19 pandemic is likely to infringe on the right to vote. Despite reinstating the witness requirement, the Supreme Court made clear that ballots that have already been cast will still be counted, as long as they are received within the next two days. Continue reading »