Friday round-up

By on Jul 11, 2014 at 7:29 am

Last week’s decision in Burwell v. Hobby Lobby continues to dominate commentary on the Court.  At Hamilton and Griffin on Rights, Marci Hamilton looks at the fallout from the decision and suggests that the rancor which accompanied it “shines a light” on the flaws in the statute at the heart of the decision, the Religious Freedom Restoration Act.  And in Newsweek, Pema Levy considers the effects that the decision may have on discrimination based on sexual orientation.  Continue reading »

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A bill to undo Hobby Lobby

By on Jul 11, 2014 at 12:01 am

With fewer than a dozen crucial words, a group of U.S. senators and representatives this week proposed what they have called a “legislative fix” to undo the Supreme Court’s June 30 decision in Burwell v. Hobby Lobby.  Here is the key language in the Senate version, bill number S. 2578:  ”Application: Subsection (a) shall apply notwithstanding any other provision of federal law, including Public Law 103-141.”

The bill would modify — but without directly amending — the federal law that was the basis of the Supreme Court’s ruling — that is, the Religious Freedom Restoration Act (officially enacted as Public Law 103-141).  The new measure would have the effect of simply overruling the Hobby Lobby decision.  Identical versions were introduced in the Senate and House on Wednesday.

Continue reading »

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Petitions of the day

By on Jul 10, 2014 at 10:05 pm

The petitions of the day are:

Aetna Life Insurance Company v. Kobold

Issue: Whether the Federal Employees Health Benefits Act (FEHBA), which expressly “preempt[s] any State or local law” that would prevent enforcement of “[t]he terms of any contract” under FEHBA that “relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits),” preempts state laws precluding carriers that administer FEHBA plans from seeking reimbursement or subrogation pursuant to the terms of FEHBA contracts.

Coventry Health Care of Missouri, Inc. v. Nevils

Issue: Whether the Federal Employees Health Benefits Act (FEHBA), which governs the federal government’s provision of health benefits to millions of federal employees and their dependents, preempts state laws precluding carriers that administer FEHBA plans from seeking subrogation as required by their contracts with the Office of Personnel Management.

UPDATE 1:55 p.m.  Another state trial judge, District Judge Andrew Hartman of Boulder, ruled on Thursday that the Boulder County clerk may continue to issue marriage licenses to same-sex couples, but must notify those couples that “the validity of their marriages” depends upon whether the courts would later uphold the clerk’s power to issue them.  The following post includes a brief reference to the legal controversy over the licenses that have been issued by Boulder County Clerk Hillary Hall.


Joining the lengthening list of courts striking down state bans on same-sex marriage, a state trial judge in Colorado ruled on Wednesday that a state constitutional amendment and laws imposing the ban are unconstitutional.  Adams County District Judge C. Scott Crabtree of Brighton issued a forty-nine-page opinion, and then put his ruling on hold during a likely appeal by state officials.

So far, no state’s prohibition on same-sex marriage has been upheld in any court in the year since the Supreme Court’s decision in United States v. Windsor provided new guidance that judges are interpreting as strong arguments in favor of allowing gays and lesbians to share in a constitutional right to marry.

Continue reading »

A few notes on unanimity

By on Jul 10, 2014 at 10:40 am

Over the past few weeks, there has been a raft of opinion pieces and commentary addressing the Supreme Court’s startling number of unanimous opinions during October Term 2013.  As our Stat Pack shows, there were forty-eight 9-0 or 8-0 decisions during the Term, totaling sixty-six percent of all merits opinions.  Neal Katyal noted that this is the highest percentage of unanimous opinions in any single Term since World War II.

But there may be more to the story.  Some commentators have termed this year’s unanimity “faux-nanimity” for the seemingly high number of cases in which the Justices voted for the same judgment – thereby satisfying the most fundamental requirement for unanimity – while evincing serious disagreement over the legal reasoning used to reach that conclusion. Continue reading »


Thursday round-up

By on Jul 10, 2014 at 9:34 am

Commentary on the Court’s June 30 decision in Burwell v. Hobby Lobby continues with an op-ed in The New York Times from Linda Greenhouse, who contends that, “[t]o grasp the full implications of the . . . Hobby Lobby decision, it helps to read it not in isolation but alongside the court’s other major religion case of the term,” Town of Greece v. Galloway, in which the Court upheld a New York town’s practice of beginning its town council meetings with a prayer.  Ralph Behr weighs in on the case at the South Florida Criminal Defense Blog, observing that “[t]he decision is seen as an end run to, in effect, backdoor reproductive and privacy rights by framing the issue as a question that can be decided under the Religious Freedom Restoration Act of 1993.”  Continue reading »

Posted in Round-up

Petition of the day

By on Jul 9, 2014 at 10:11 pm

The petition of the day is:

Pierre v. Holder

Issue: (1) Whether the biological basis for sex discrimination articulated in Nguyen v. Immigration and Naturalization Service can be extended to unrelated facial sex and legitimacy-based distinctions in 8 U.S.C. § 1432(a), or whether such distinctions are unconstitutional, as four Justices concluded in an order for an equally divided court in Flores-Villar v. United States; and (2) whether heightened scrutiny, the ordinary standard of review for sex and legitimacy-based distinctions, applies to such distinctions in the citizenship context.

UPDATED 5:02 p.m.  In another development on same-sex marriage Wednesday, Supreme Court Justice Samuel A. Alito, Jr., denied a Pennsylvania county clerk’s plea to stop such marriages in that state.  The Justice cited the Court’s order last month denying a postponement request regarding same-sex marriages in Oregon; that application was by a private organization.  Alito’s action appears to remove the last potential legal barrier to Pennsylvania becoming the nineteenth state in which same-sex marriages are permitted.  A federal judge struck down the state ban, and state officials declined to appeal.  The Schuylkill County clerk sought to appeal in their place, but that move has now been turned down at all three levels of the federal court system.  The Pennsylvania case had no direct link to the Utah case discussed in the post below.


Utah state officials will go to the Supreme Court in the “coming weeks” in a bid to revive the state’s ban on same-sex marriage, they announced Wednesday.  In a statement by Missy W. Larsen, the Utah attorney general’s chief communications officer, the state said it had opted to pass up a request for the U.S. Court of Appeals for the Tenth Circuit to reconsider en banc a three-judge panel’s ruling in June nullifying the ban.

This will be the first case reaching the Supreme Court on the constitutionality of such state bans since the Justices in United States v. Windsor a year ago struck down a key part of the federal Defense of Marriage Act — a ruling that set off a series of decisions by federal and state trial courts, all of which so far have nullified state bans on same-sex marriages.  The Tenth Circuit was the first federal appeals court to issue such a decision (see this post).

Continue reading »

Event announcements

By on Jul 9, 2014 at 4:10 pm

The Justices are in their summer recess, but events to discuss the most recent Term and the Court more broadly continue in the upcoming weeks:

  • Throughout the summer, the American Constitution Society will be hosting a series of weekly conference call series to discuss major cases from the October Term 2013 and “what’s next” after those cases.  More information about the series is available here.
  • On July 18, the State and Local Legal Center will host a webinar to review the Term, followed by another webinar focused on Fourth Amendment cases on July 23.
  • On July 21, the Chautauqua Institution will host the tenth annual Robert H. Jackson Lecture on the Supreme Court of the United States.  Akhil Amar of Yale University will deliver the lecture.  More information is available here.
  • On July 23, the New York City Bar Association will host an event to review the Term. The agenda is available here; registration information is available here.  The event will also be webcast.
Posted in Everything Else

“We have met the enemy and he is us” is the caption on the famous Earth Day 1970 poster by cartoonist Walt Kelly. It shows Pogo, Kelly’s anthropomorphic possum, in a forest full of junk, holding a trash-picking stick. The message was obvious: we created this mess, we should clean it up.

In December 1947, the Supreme Court found itself in a Pogo situation of a sort. In 1946, the Justices’ secretaries and law clerks had hosted a Christmas party for what Justice Felix Frankfurter tactfully described in his diary as “various offices of the Court.” The Court’s workforce was then so thoroughly stratified by race that it was possible to sort out all the Court’s employees of relatively recent African descent merely by specifying certain job categories for exclusion (for example, the Court’s messengers) or inclusion (for example, the secretaries and clerks). That is what the secretaries and clerks had done, and thus the Court hosted an all-white Christmas party in 1946. When it came time to plan the 1947 party, some clerks — apparently taking to heart recent cases such as Morgan v. Virginia and Steele v. Louisville & Nashville Railroad Co., and conscious that Shelley v. Kraemer and Sipuel v. Board of Regents would be argued after the holidays — “felt,” Frankfurter said, “strongly that at least some of the colored employees in the Court should also be asked.” Continue reading »

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