Petition of the day

By on Jan 20, 2016 at 11:00 pm

The petition of the day is:


Issue: Whether the Employee Retirement Income Security Act requires that a plan’s definition of “normal retirement age” must be based on the typical age at which the employer expects the plan’s participants would retire from working.


This morning brought us a strong candidate for this year’s award for “case that breaks the least new ground.” To the surprise of few, the Court disposed of Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan with a wholly pedestrian opinion that treated the case as almost entirely governed by the Court’s existing case law for the Employee Retirement Income Security Act of 1974 (ERISA).

This case involves a commonplace fact situation: a driver, with health insurance from an ERISA plan, is injured in an automobile accident. Later, the insured driver successfully sues the other driver and recovers for the injuries he suffered in the accident. As the Court puts it, the “terms of those plans often include a subrogation clause requiring a participant to reimburse the plan if the participant later recovers money from the third party for his injuries.” It will astonish all but the most jaded ERISA lawyers to know this is the fourth time the Court has considered the ability of plans to recover such payments under such clauses.

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The image of an Indian tribe, ominously hovering on the edge of town with ambitions to take over.  Or the picture of a pitifully small Indian tribe wanting only to hang onto a heritage of lands it can call home.  Those were the conflicting visions lawyers tried to create for the Supreme Court on Wednesday in Nebraska v. ParkerThe Justices, though, were decidedly more sympathetic to the tribe; they simply could not imagine the worst for the small town of Pender, Nebraska.

“The question is: who’s got the power to govern?” a lawyer speaking for the town asked as the argument was coming to a close.  “The people in Pender, this is a big deal.  It’s a big deal whether a tribal council has authority over us.”

The Justices were not without sympathy, but they did not seem convinced that life would change much in Pender, even if it were left occupying land inside the boundary of the Omaha Indian Tribe’s reservation.

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In recent years, issues relating to the death penalty have often been an acrimonious topic at the Supreme Court. In June of last year, the Justices ended their 2014-2015 Term by upholding Oklahoma’s lethal injection protocol, but four Justices dissented from that decision – including, most notably, Justice Stephen Breyer, who suggested that the death penalty itself may be unconstitutional. Although the Justices may be deeply divided in some death penalty cases, that’s not necessarily true for all of them, as demonstrated by today’s eight-to-one opinion (with Justice Sonia Sotomayor as the lone dissenter) in a set of cases involving the procedures used by the state of Kansas to sentence three inmates to death.

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Argument transcripts

By on Jan 20, 2016 at 2:27 pm

The transcript in Nebraska v. Parker is here; the transcript in Sturgeon v. Masica is here.

Posted in Merits Cases

Event announcement

By on Jan 20, 2016 at 2:24 pm

On January 21, the State & Local Legal Center will host a discussion on consequences of last Term’s decision in North Carolina Board of Dental Examiners v. Federal Trade Commission. Speakers will include Geoffrey Green and Sarah Oxenham Allen. More information and registration for this webinar are available here.


We are live blogging as the Court issues opinions. Join us.

Posted in Live

Wednesday round-up

By on Jan 20, 2016 at 8:55 am

Today the Justices will hear oral arguments in two more cases – the final two cases of the January sitting.  In Nebraska v. Parker, they will consider a dispute over land on the Omaha Indian reservation in Nebraska.  Lyle Denniston previewed the case for this blog, with other coverage coming from Maame Esi Austin and Krsna Avila of Cornell’s Legal Information Institute.  In Sturgeon v. Frost, they will consider the case of an Alaska man who wants to use his hovercraft to hunt moose there.  Coverage comes from Todd Henderson for this blog, Robin Bravender of E&E Publishing, Robert Barnes of The Washington Post, and Kelsey MacElroy and Katie Marren of Cornell’s Legal Information Institute. Continue reading »

Posted in Round-up

In Tuesday’s argument in Heffernan v. City of Paterson, the Justices considered a case that Justice Samuel Alito called a law school hypothetical — whether a public employee can show a violation of his right to political association when he was demoted explicitly because his employer believed he was holding a campaign sign as a show of support for the challenger in the mayoral race, even when the employee was not expressing support and had taken no position in the election. This question required the Justices to tangle with core questions of what the First Amendment does in the public-employment context. Does it create a right not to be subject to a test of political affiliation? Is there a meaningful difference between political neutrality and political agnosticism? Does it protect only those people who actively engage in expressive or associational activity? Or does it protect all people against government decisions made with an improper motive of suppressing disfavored political beliefs?

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This morning the Court granted review in United States v. Texas, in which it is considering a challenge to the Obama administration’s changes to deportation policy for undocumented immigrants. Lyle Denniston covered the grant for this blog, while Amy Howe covered the grant in “Plain English.”

Other early coverage of the grant comes from Eyder Peralta of NPR, Pete Williams of NBC News, Jordan Fabian of The Hill, Ariane de Vogue of CNN, Adam Liptak and Michael Shear of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin and Byron Tau of The Wall Street Journal, Robert Barnes and Juliet Eilperin of The Washington Post, David G. Savage of the Los Angeles Times, Sam Baker at National Journal, Mark Sherman of the Associated Press, Chris Geidner of Buzzfeed, Josh Gerstein of Politico, Greg Stohr of Bloomberg, Caroline May of Breitbart, and Mark Walsh at Education Week.

Early commentary comes from Ian Millhiser at ThinkProgress, Cristian Farias and Elise Foley for Huffington Post, Elizabeth Slattery atThe Daily Signal, Noah Feldman of Bloomberg View, Daniel Fisher of Forbes, Tina Nguyen of Vanity Fair, Jay Sekulow of the American Center for Law and JusticeImmigrationProf Blog, Dara Lind of Vox, Christi Parsons and Joseph Tanfani for the Los Angeles Times, and Dan Roberts of The Guardian.

Posted in Round-up
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