Menu of today’s coverage

By on May 16, 2016 at 9:09 pm

Here is an overview of today’s case coverage:

11:46 a.m.: Lyle Denniston analyzed today’s opinion in Zubik v. Burwell.

12:53 p.m.: Ronald Mann analyzed today’s opinion in Sheriff v. Gillie.

2:35 p.m.: Mark Walsh provided a “view” from the Courtroom this morning.

6:45 p.m.: Amy Howe analyzed today’s opinion in Spokeo v. Robins.

We are also hosting an online symposium on the Court’s ruling in Zubik v. Burwell. Our first contributions come from Chad Flanders of the Saint Louis University School of Law, Erin Morrow Hawley of the University of Missouri School of Law, and, writing together, Nelson Tebbe of Brooklyn Law School and Richard Schragger and Micah Schwartzman of the University of Virginia School of Law.

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Nelson Tebbe is a professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School.  Richard C. Schragger is Perre Bowen Professor of Law at the University of Virginia School of Law.  Micah Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Today, the Supreme Court handed down its decision in Zubik v. Burwell, the closely watched sequel to Hobby Lobby. The Court did not decide the merits of the cases consolidated before it. Instead, it remanded those cases to the lower courts, urging – but not requiring – the parties to come to an agreement. Though this development bodes well for women’s equal access to health care, and though the decision is best read to demand safeguards for women, the Court could have done more to ensure that its opinion met the demands of justice. Continue reading »

Although the Court’s ruling in the challenge to the Affordable Care Act’s birth-control mandate dominated today’s coverage of the Court, it wasn’t even the only underwhelming decision of the day.  Another one of today’s opinions, in Spokeo v. Robins, also proved to be somewhat of a disappointment.  It was a narrow victory for Spokeo, a company that operates a “people search engine,” in the lawsuit filed against it by Thomas Robins, a Virginia man who contends that Spokeo violated the federal Fair Credit Reporting Act when it published false information about him.  But the victory could be only temporary:  the Justices sent the case back to the lower court for it to take another look at whether Robins had alleged the kind of injury that would allow his suit to go forward, leaving open at least the possibility that Robins could prevail – and the case could even return to the Supreme Court.

Justice Alito with opinion in Spokeo v. Robins

Justice Alito with opinion in Spokeo v. Robins (Art Lien)

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Erin Morrow Hawley is Associate Professor of Law and the University of Missouri School of Law.  She filed an amicus brief on behalf of the Independent Women’s Forum (where she is now a legal fellow) in support of the petitioners in Little Sisters of the Poor Home for the Aged v. Burwell.

In a surprise per curiam order today, the Supreme Court vacated and remanded the consolidated cases known as Zubik v. Burwell.

But make no mistake, today is a victory for employers, like the Little Sisters of the Poor, who have religious objections to the Affordable Care Act’s contraceptive mandate. In no uncertain terms, the Supreme Court requires accommodation, directing the parties to “arrive at an approach going forward that accommodates petitioners’ religious exercise” while ensuring that women covered by the religious non-profits’ health plans receive contraceptive coverage.

In addition to being a clear win for the religious non-profits, the clever per curiam decision reveals that, while many of the nation’s best lawyers take their seats at counsel’s table, others sit behind the Supreme Court bench. It reveals that the Obama administration has been masterfully outmaneuvered by the judges behind that bench. Indeed, in vintage John Roberts fashion, the short opinion snatches victory from the probable outcome of a tie.

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This morning the Court released six decisions. In Zubik v. Burwell, the Court did not decide whether the Affordable Care Act’s birth-control mandate violates the Religious Freedom Restoration Act, instead remanding the cases to the federal courts of appeals. Lyle Denniston covered the decision for this blog, while Mark Walsh provided a “view” from the Courtroom. This blog is also hosting an online symposium on the decision. Other early coverage comes from Robert Barnes of The Washington Post, Sarah Ferris of The Hill, Jennifer Haberkorn of Politico, Adam Liptak of The New York Times, Daniel Fisher of Forbes (who also covers the Court’s other five decisions today), Mark Walsh of Education Week, Pete Williams of NBC News, Carol Zimmermann of National Catholic Reporter, Bill Mears of Fox News, and Jaclyn Belczyk of Jurist.

Early commentary comes from Jessica Pieklo of Rewire, Emily Crockett of Vox, Ian Millhiser of Think Progress, Adam Feldman at Empirical SCOTUS, Garrett Epps at The Atlantic, Dahlia Lithwick at Slate, Jay Michaelson at The Daily Beast, Roger Severino and Elizabeth Slattery at The Daily Signal, the editorial board of The Christian Science Monitor, Neil Schoenherr at Washington University in St. Louis’s The Source, and Charlie Spiering of Breitbart.

Continue reading »

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Symposium: Into the weeds

By on May 16, 2016 at 3:04 pm

Over the next day or two, the blog is hosting an online symposium on Monday’s ruling in Zubik v. Burwell, the challenge by religious non-profits to the Affordable Care Act’s birth-control mandate.  Lyle Denniston analyzed the decision for this blog.

Chad Flanders is Associate Professor at Saint Louis University School of Law.

We’ll probably never know how exactly things would have turned out had Justice Antonin Scalia still been on the Court, but today’s opinion in Zubik v. Burwell certainly does look like a placeholder, a kicking-the-can-down-the-road, a punt. If anything, it’s kind of like a judge saying to the parties about to go to trial: “See if you can work it out yourselves. Let’s settle this, rather than litigate it.”

Except it’s not exactly like that, because the Court has already said and shown it’s (very) interested in what the settlement is, that it’s ready to take the case, that it will step in if any compromise at the appeals court level makes one (or both) of the parties upset. Remember that we’re not just talking a single case; we’re talking several cases, all over America, with different lawyers, different clients, and different and possibly competing interests. We’ll see this case again, I imagine.

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With arguments over for the Term since late last month, the Justices are now focused on “bringing down” the pending decisions. There are thirty-six as the morning begins, but the Court will make a dent in that number.

This time of year is also when the Justices may be working – struggling – to maintain majorities or to make sense of discussions on the merits that may have occurred in their private conference months ago.

That idea came to mind as we were examining the papers of the Justices available at the Library of Congress, particularly the late Justice William J. Brennan Jr.’s papers for the 1978 Term (for some reason).

Chief Justice Roberts announces the Court's per curiam decision in Zubik v. Burwell

Chief Justice Roberts announces the Court’s per curiam decision in Zubik v. Burwell (Art Lien)

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Monday brought us the results of the Justices’ encounter with the Fair Debt Collection Practices Act (FDCPA). The Court’s opinion in Sheriff v. Gillie displays a Court dubious about the readiness of lower courts to see deception in what would pass for routine correspondence in a conventional business environment. The Court’s blithe rejection of the holding that the letters in this case were actionably misleading sends a strong message that courts of appeals should be a little more cautious about drawing such conclusions so readily.

The case involves collections by “special counsel,” lawyers Ohio has hired to collect debts owed to the state. The case is before the Court because the letters that these special counsel routinely send to collect those debts use the Ohio attorney general’s letterhead rather than the letterhead of their own law firms. The court of appeals concluded that the use of the attorney general’s letterhead by the outside collection lawyers violated the FDCPA, and the Court accepted Ohio’s plea for review.

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Without settling any legal issues surrounding the Affordable Care Act’s birth-control mandate, the Supreme Court on Monday nevertheless cleared the way for the government to promptly provide no-cost access to contraceptives for employees and students of non-profit religious hospitals, charities, and colleges, while barring any penalties on those institutions for failing to provide that access themselves.  Thirteen separate cases were sent back to federal appeals courts for them to issue new rulings on the questions the Justices left undecided.  One immediate issue is how soon the government can work out the technical arrangements to provide actual access to the contraceptive benefits.

The Court largely shifted to six federal appeals courts the task of ruling on the mandate’s legality — the task that the Court had agreed last November to take on itself in seven of the cases.  Five appeals courts had ruled in favor of the mandate, and one had ruled against.  All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases.

The Court acted through a per curiam (“by the Court”) opinion — announced in the Courtroom by Chief Justice John G. Roberts, Jr. — dealing with the cases the Court was reviewing, along with three orders extending the effect of that opinion to six other cases that the Court had not yet agreed to hear.  Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately to stress that the Court had not decided any of the legal questions it considered in the cases, under the lead case’s title, Zubik v. Burwell, and to caution lower courts not to read anything into the new opinion and orders about where the Court stands.

Chief Justice Roberts announces the Court's per curiam decision in Zubik v. Burwell

Chief Justice Roberts announces the Court’s per curiam decision in Zubik v. Burwell (Art Lien)

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We are live-blogging this morning as the Court issues orders and opinions. Join us.

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