Supreme Court

From Justice Scalia’s dissent

Featured image Justice Scalia dissented vigorously from the Supreme Court’s decision upholding Obamacare subsidies on the federal exchange. Justices Thomas and Alito joined in that dissent. Here are key excerpts from Scalia’s dissent: We should start calling this law SCOTUScare. The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange »

Behold, the Supreme Court’s Magical Warp Field Generator!

Featured image I recall once reading an interview with one of the head writers of Star Trek: The Next Generation—you know, the faux Star Trek series where the role of Captain Kirk was reimagined by the UN and the National Organization of Women.  (No: This is not arguable. Just as there is only one real James Bond—Sean Connery, damnit—there is only one Star Trek. Simple rule: if it doesn’t have William Shatner, »

Supreme Court upholds Obamacare subsidies [With Comment by John]

Featured image The vote was 6-3. Chief Justice Roberts wrote the opinion. The dissenters were Justices Scalia, Thomas, and Alito. Two big wins for the Obama administration today, the other being the housing case (see post below). UPDATE: According to SCOTUSblog, where I’m following today’s developments, the majority acknowledges the strength of the argument that the plain language of the statute permits subsidies only on state exchanges. However, the majority says that »

Supreme Court finds disparate impact claims cognizable in housing cases

Featured image The Supreme Court has just affirmed the Fifth Circuit’s ruling that the Fair Housing Act allows lawsuits based on disparate impact – that is, an allegation that a law or practice has a discriminatory effect, even if it wasn’t based on a discriminatory purpose. The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. The vote was 5-4. Justice Kennedy wrote the opinion. Without reading »

What’s the Obamacare backup plan?

Featured image Any day now, the Supreme Court will issue a decision on whether Obamacare subsidies are available to those who purchase health insurance on the federal exchange. I think the likelihood that the Court will say subsidies can’t be paid to such purchasers is a little south of 50 percent. But if the Court does decide King v. Burwell that way, millions of Americans will stand to lose their insurance subsidies. »

EEOC wins Supreme Court case on religious accommodation

Featured image Yesterday, the U.S. Supreme Court ruled in favor of the EEOC in a case it brought against Abercrombie & Fitch. The issue was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a religious observance and practice only if the employer has actual knowledge that a religious accommodation was required. By »

Let’s call the whole thing off

Featured image The starting point of statutory construction is the language of the statute itself. If the words of a statute are clear, they are to be construed according to their plain meaning. See generally Yule Kim, Statutory Interpretation: General Principles and Recent Trends (Congressional Research Service, 2008). If the words of a statue are ambiguous, a court may resort to legislative history and other devices to construe it. The Supreme Court »

Justice Kennedy sends mixed signals during argument on gay marriage

Featured image Today, as I mentioned here, the Supreme Court heard oral argument in Obergefell v. Hodges in which the issue is whether same-sex couples have a constitutional right to be deemed by the state “married” if that’s what they want. Lyle Denniston of Scotusblog filed this report on the argument. The Washington Post’s account is here. The argument confirmed the impression that the decision will be 5-4, with Justice Kennedy casting »

Justice Kennedy and gay rights

Featured image As I begin typing this, the Supreme Court is in the middle of oral argument in Obergefell v. Hodges, the gay marriage case. You can follow the progress of the argument at Scotusblog. Personally, I am not opposed to changing the definition of marriage to encompass same-sex unions. I consider this a low-risk accommodation to the reasonable desires of a large segment of our fellow Americans. But a change of »

Justice Kennedy’s testimony about gridlock harkens back to Obamacare case

Featured image Justice Kennedy made an interesting comment today when he testified to Congress regarding the Supreme Court’s budget. Responding to a question about politically charged issues before the Court, Kennedy stated: We think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it. But »

King v. Burwell, the day after

Featured image The consensus following oral argument in King v. Burwell is that the votes of two Justices are in play. Based on the questioning, it seems clear that the four-judge liberal bloc will vote to affirm the decision that Obamacare subsidies may be granted to those using the federal exchange. Justices Scalia and Alito appear set to vote to reverse that decision. Justice Thomas did not ask questions — his usual »

Triumph of the leftist will

Featured image The Supreme Court held oral argument in King v Burwell yesterday. The Supreme Court has posted the transcript of the oral argument here. At issue in King is the legality of the IRS’s provision of tax credits in Obamacare exchanges established by the federal government. As Professor Jonathan Adler writes in USA Today, the case “presents a straightforward case of statutory interpretation.” As such, it’s not a hard case; it’s »

King v. Burwell: a discouraging mid-argument report [UPDATED] [WITH FINAL UPDATE]

Featured image Eric Citron at Scotusblog provides a mid-argument report on King v. Burwell, the vital Obamacare case being heard by the Supreme Court today. According to Citron, the petitioners, who argue that subsidies are not available on the federal exchange faced a troubling question from Justice Kennedy, on whose vote the case may very well turn. Kennedy, says Citron, “expressed deep concern with a system where the statute would potentially destroy »

Talk about working the refs. . .

Featured image Today’s Washington Post features a front page story called “Faces of the subsidies case: For families relying on Affordable Care Act, court ruling could be devastating.” Just above the headline, in a picture that runs nearly the full width of the front page, we see a picture of Erin Meredith — the poster woman for the story — with her adorable five-year old daughter. The picture and the headline will »

Battle station alert on the left

Featured image William Levin is a graduate of Yale Law School, former clerk on the D.C. Circuit Court of Appeals and former special assistant in the Department of Justice, Office of Legal Counsel. He writes to comment on developments related to the Supreme Court’s pending decision in King v. Burwell on the legality of Obamacare subsidies provided via exchanges established by the federal government. Bill assumes that the Supreme Court will get »

Obamacare Benchwarmers Working the Refs Again

Featured image The Wall Street Journal mentions this morning that our now-socialized health care sector is filing panicked Supreme Court briefs in the upcoming King v. Burwell case that emphasize not legal arguments but the disruption to their business model if Obamacare’s state subsidies are struck down. In other words, they mostly submitted policy briefs to the Supreme Court—not legal briefs. I wonder if their lawyers gave them the appropriate policy wonk »

Trust us, we’re the government, Obama administration tells Supreme Court [With Comment by John]

Featured image Earlier this month, the Supreme Court heard a case in which the Obama administration made the extraordinary claim that there can be no judicial review as to whether a government agency met a statutory prerequisite for filing a lawsuit. The case is Mach Mining v. EEOC. The Federalist Society asked me to report on the case via audiotape. My report is here. The Civil Rights Act requires the EEOC to »