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January 2012
Contraceptive mandate could face tough sledding in
Supreme Court
The healthcare law's
mandate to require religious-affiliated employers to pay
for contraception for their workers has prompted two
lawsuits. If the matter gets to the Supreme Court, it
will go before justices who recently affirmed — in a 9-0
ruling — that the 1st Amendment gives special leeway to
religious employers.
By David G. Savage,
Washington Bureau, Los Angeles Times
01-30-12 --
The Supreme Court and the Obama administration, already
headed for a face-off in March over the
constitutionality of the healthcare law, appear to be on
another collision course over whether church-run
schools, universities, hospitals and charities must
provide free contraceptives to their students and
employees.
. . . The dispute
stems from one of the more popular parts of the new
healthcare law: its requirement that all health plans
provide “preventive services” for free. That category
includes vaccines and such routine screenings as
cholesterol checkups and mammograms. Starting this year,
it also includes coverage of birth control pills, IUDs
and other contraceptives.
. . . Catholic
leaders reacted fiercely when the administration
announced in recent days that it would hold most
religious institutions to that mandate, even those that
have moral and religious objections to what some of
their lawyers describe as “abortion-inducing drugs.”
Long-Dead Ohio Farmer, Roscoe Filburn, Plays Crucial
Role in Health Care Fight
By Ariane de Vogue, ABC
News
01-30-12 --
Republicans like to call the health care law "Obamacare,"
but if the Supreme Court decides the government has the
power to make every American buy health insurance, it
will have more to do with Roscoe Filburn -- a long-dead
Ohio farmer -- than Barack Obama, president of the
United States.
.
. . Call it "Filburncare,"
instead.
.
. . Every legal
brief and judicial opinion regarding the
constitutionality of the health care law references
Filburn. Filburn lost a Supreme Court case 70 years ago
that became a landmark decision defining the scope of
Congress' power to regulate interstate commerce.
.
. . When the
Supreme Court decides in 2012 whether Congress exceeded
its authority in passing a key provision of the health
care law, it will once again look back to the 1942 case
called Wickard v. Filburn.
.
. . Filburn owned
a small farm in Ohio. He maintained a herd of dairy
cattle, sold milk, raised poultry.
.
. . And he felt
wronged by Congress and, particularly, a law that was
meant to regulate wheat prices. It had been Filburn's
practice to grow wheat in the fall and use it in part to
feed livestock on his farm and make flour for home
consumption.
.
. . But the
Agricultural Adjustment Act of 1938 limited the number
of acres Filburn could plant. The law allotted him 11.1
acres, and he harvested 23 acres. He was subject to a
penalty of 49 cents a bushel for the wheat that went
over the limit. He sued.
In the case of Baby Bear v. Goldilocks…
Contributor: Jonathan
Ringel, Daily Report (blog)
01-29-12 --
“Sesame Street” viewers on Thursday got to see
something almost unheard of on TV: a Supreme Court
justice deciding a case. Justice Sonia Sotomayor was
having coffee with her friend Maria when Baby Bear
showed up with a complaint against Goldilocks. Sotomayor
quickly changed into her black robe and heard the
arguments.
. . . You can
access Justice Sotomayor's "Muppet Wiki" page
at this link.
Jones confounds the press
Tom Goldstein Publisher,
SCOTUSblog
01-25-11 --
In
this post on Monday, I summarized my
understanding of the issues that the Court decided in
the
Jones GPS tracking
decision and the other issues it left open.
. . . The case
involves a mildly complicated area of the law. The
alignment of the Justices also left the issues unusually
opaque. But the legal rules have very practical
implications for ordinary Americans on a significant
question of personal privacy. So describing the case
correctly is important. In this post I explain how I
think that the press got the case wrong.
. . . The Court’s
only holding is that the installation of a GPS
monitoring device is a search. That is a different
question from whether it requires a warrant and whether
it requires probable cause, as opposed to a lesser
standard like reasonable suspicion. The Court in Jones
did not decide the government’s argument that this
“search” (installing the GPS device) did not require a
warrant.
Citizens United v. FEC decision proves justice is
blind -- politically
By Jeffrey Rosen |
Politico Opinion Contributor
01-25-11 --
Last week, the Occupy movement came to the Supreme
Court. To protest the second anniversary of the Citizens
United decision, the group called Move to Amend
organized demonstrations at courthouses around the
country — including the steps of the high court itself.
(The protests began peacefully but ended with 11
arrests.)
. . . Say what
you will about the strategy of organizing political
protests against controversial judicial decisions, which
can be overturned only by constitutional amendment, but
one thing is clear: The Supreme Court was spectacularly
wrong in Citizens United v. Federal Election Commission
when it confidently predicted that the ruling would have
no significant impact on Americans’ confidence in their
political system.
. . . In this
sense, the Citizens United decision has much in common
with the ruling in Paula Corbin Jones v. William
Jefferson Clinton, which allowed President Bill Clinton
to be sued for sexual harassment while in office.
Roberts to America: Trust us
By William Yeomans &
Herman Schwartz, Politico Opinion Contributors
01-24-11 --
Chief Justice John Roberts’s response in his year-end
report to the increasing controversy over the ethics of
Supreme Court justices served to drive home the need for
the high court to adopt reforms immediately.
. . . Roberts
rejects calls that the justices should be subject to the
basic code of ethics that governs all other federal
judges and must provide some transparency to their
recusal decisions. His argument seems based on the
proposition that the justices are good people and able
jurists — so they don’t have to be officially bound by a
code or explain decisions governing their conduct or
recusal.
. . . In
Roberts’s view, these good jurists should not have to
explain how their decisions conform to the law. Yet the
courts’ fundamental legitimacy rests on the notion that
judges apply the facts to the law impartially and
explain what they have done in reasoned opinions for all
to read. Roberts’s position mocks that.
. . . He
acknowledges that justices are the only federal judges
not bound by the Code of Conduct, but he notes that they
do consult the code “in assessing their legal
obligations.” They also consult other sources for
guidance, Roberts adds, including “judicial opinions,
treatises, scholarly articles and disciplinary
decisions” and may turn to the Supreme Court’s legal
office and the Judicial Conference’s Committee on Codes
of Conduct.
Penn Law students assist professor in Supreme Court
The Supreme Court Clinic
prepared 12 students for a case involving immigration
law
By Jin Pyuo Lee, The
Daily Pennsylvanian ·
01-24-11 --
Last week, 12 Law School students were given the
opportunity of a lifetime: to get out of the classroom
and measure their legal skills in front of the Supreme
Court.
. . . The
students — who are part of Penn Law’s Supreme Court
Clinic — assisted Law and Criminology professor
Stephanos Bibas in a case that dealt with immigration
law.
. . . Since 2009,
law students have participated in the Supreme Court
Clinic, a program that provides real-world experience
for students to work on Supreme Court cases.
. . . Bibas — who
started the clinic after talking to former Yale Law
School classmate Stephen Kinnaird — explained that
students are primarily responsible for working on
initial drafts of written arguments, researching court
precedents and communicating with clients.
Court won't hear arguments demanding Kagan recusal
Associated Press
01-23-12 --
The Supreme Court won't hear arguments from a
conservative watchdog group that wants Justice Elena
Kagan disqualified from deciding the constitutionality
of President Barack Obama's national health care
overhaul.
. . . Freedom
Watch asked the high court for time to demand Kagan's
recusal or disqualification during arguments on the
Patient Protection and Affordable Care Act.
Sue your own state? Why not?
The Supreme Court, in a
Maryland case, should rule against the state, and also
reexamine other decisions that have made it hard for
people to sue their own states.
Los Angeles Times
Editorial
01-23-12 --
In 1993, Congress passed the Family and Medical Leave
Act, which entitled employees up to 12 weeks of unpaid
leave in four situations: because of the birth of a
child; when an employee adopts a child; when an employee
must care for an ill relative; or when the employee
himself has a "serious health condition." Congress
explicitly included public agencies in its definition of
employer, but the state of Maryland has asked the
Supreme Court to shield it from a suit filed by a state
employee who was fired after he asserted his right to
sick leave. The court should rule against the state, and
in the process reexamine decisions making it hard for
citizens to sue their own states.
. . . In 2007,
Daniel Coleman, an employee of Maryland's judicial
system, was told by his doctor to take two weeks of bed
rest as treatment for high blood pressure and diabetes.
Coleman's request for leave was denied, and he was fired
the next day. He filed suit under the Family and Medical
Leave Act, but the state argued that it couldn't go
forward because the state enjoyed what's known as
"sovereign immunity."
Justices spar at USC over Constitution, the court, the
law
By Clif LeBlanc The
State
01-21-12 --
Two of the nation’s top jurists on Friday at USC gave a
plain-spoken, humorous lesson in the Constitution, the
role of the country’s highest court and the issues that
divide them and this democracy.
. . . Supreme
Court associate justices Antonin Scalia and Stephen
Breyer – from opposite ends of the judicial spectrum –
spent an hour engaging a select audience of law
students, law school faculty and the South Carolina
bench.
. . . The public,
though, could hear none of the thought-provoking civics
lesson. The justices, as does the court on which they
sit, barred recording of their talk for publication or
broadcast. The same will be true today when they repeat
their presentation before the South Carolina Bar’s
annual convention in Columbia.
.
. . Scalia, a
leader in the “originalist” interpretation of the
Constitution and often called the court’s “caustic
conservative,” does not approach the law as a
conservative or a liberal, he said. The 75-year-old
Reagan appointee joked that he does not have “mean,
nasty, conservative things he wants to do to society.”
Small-Business Owners Wary of Citizens United's Impact
Catherine Dunn, Corporate
Counsel
01-20-12 --
A large swath of the country’s small- and medium-sized
business owners have joined the growing chorus of
activists and lawmakers that oppose the Supreme Court’s
2010 Citizens United v. Federal Election Commission
ruling on corporate political spending, demonstrating
that the U.S. business community does not uniformly
support the decision, say advocates for campaign finance
reform.
. . . Those
viewpoints are demonstrated both in the results of a new
poll on attitudes toward Citizens United—a decision
handed down two years ago this week—and in the
collection of over 1,000 business-owner signatures on a
petition to overturn Citizens via a constitutional
amendment. Both efforts are spearheaded by the American
Sustainable Business Coalition (ASBC), a coalition of
business networks.
Supreme Court ruling confuses religious workers
By Jeff Karoub,
Associated Press
01-20-12 --
Aleeza Adelman teaches Jewish studies at a Jewish
school, yet she considers herself a teacher whose
subject is religion, not a religious teacher. She's
rethinking how to define her job after a recent U.S.
Supreme Court ruling left her wondering what could
happen if she ever needed to defend her right to keep
it.
. . . The high
court ruled last week that religious workers can't sue
for job discrimination, but didn't describe what
constitutes a religious employee - putting many people
employed by churches, synagogues or other religious
organizations in limbo over their rights.
Justice Scalia says legislatures, not courts, should be
forum for abortion rights
By Associated Press |
Washington Post
01-19-12 --
Supreme Court Justice Antonin Scalia says using the
courts, rather than elected legislatures, to assert
abortion rights is akin to “sneaking it in through a
back door.”
. . . Scalia is
one of the court’s most outspoken opponents of the
court’s 1973 Roe v. Wade decision that declared a
woman’s right to an abortion. He repeated his long-held
view Thursday that the Constitution is silent on
abortion and that judges should stay out of the issue.
Nicole Richie’s Cursing May Spur Top Court to Free
Broadcasters
By Greg Stohr, Bloomberg-
01-06-12 --
A U.S. Supreme Court fight over television profanity and
nudity may usher in a new era for broadcasters,
potentially freeing them from federal restrictions on
the content of their programming.
.
. . The justices
will hear arguments on Jan. 10 that the Federal
Communications Commission is violating the Constitution
by imposing fines for on-air indecency. The dispute
centers on expletives used by Cher and Nicole Richie on
awards shows seen on
News Corp. (NWSA)’s Fox television and a
scene featuring a naked actress on “NYPD Blue,” aired on
Walt Disney Co. (DIS)’s ABC.
.
. . The court’s
ruling may bring the biggest change in the FCC’s
regulation of broadcast content since the agency in 1987
stopped enforcing the Fairness Doctrine, which required
broadcasters to present both sides of controversial
issues. Fox and ABC are asking the court to overturn a
34-year-old ruling that lets the FCC regulate broadcast
indecency while exempting cable and satellite television
and the Internet.
Supreme Court: The recusal question
If justices recuse
themselves from a case, or refuse to do so when asked,
an explanation is warranted.
Los Angeles Times
Editorial
01-03-12 --
Chief Justice John G. Roberts Jr. has addressed
complaints that a member of the Supreme Court has the
last word when it comes to deciding whether to
participate in cases in which his impartiality is
questioned. Roberts' response: Things are fine as they
are.
. . . In his
end-of-the-year report on the federal judiciary, Roberts
insists that the justices abide by the Code of Judicial
Conduct, which requires judges to be impartial, even
though it doesn't formally apply to the Supreme Court.
He notes that the justices also make financial
disclosures required by the Ethics in Government Act,
although the court has never ruled on the
constitutionality of the law. And he says that "I have
complete confidence in the capability of my colleagues
to determine whether recusal is warranted."
The Supreme Court can’t be absolute
By Jeff Jacoby Boston
Globe Editorial | Boston,Com
01-01-12 --
NEWT GINGRICH’S presidential ambitions may be heading
for the exits - opinion polls suggest that the former
House speaker’s hour has come and gone - but his
critique of judicial supremacy deserves to be taken
seriously no matter what happens in Iowa or New
Hampshire.
. . . In a
54-page position paper , Gingrich challenges the widely
held belief that the Supreme Court is the final
authority on the meaning of the Constitution. Though
nothing in the Constitution says so, there is now an
entrenched presumption that once the court has decided a
constitutional question, no power on earth short of a
constitutional amendment - or a later reversal by the
court itself - can alter that decision.
. . . Thus, when
House Minority Leader Nancy Pelosi was asked for her
reaction to the Supreme Court’s notorious eminent-domain
ruling in Kelo v. New London, she replied as though a
new tablet had been handed down from Sinai: “It is a
decision of the Supreme Court. If Congress wants to
change it, it will require legislation of a level of a
constitutional amendment. So this is almost as if God
has spoken.’’
Gingrich threats a dark omen for courts?
UPI
01-01-12 --
Republican presidential contender Newt Gingrich may have
fired the first shot, but the federal courts and
especially the U.S. Supreme Court may be in danger of
being seen as political entities rather than an
impartial judiciary.
. . . The late
Chief Justice William Rehnquist used to muse that the
Supreme Court had no real way to enforce its decisions
on the lower courts other than its "authority."
. . . When the
justices agree to review a case, they can reverse or
affirm the ruling of an appeals court. But often they
remand a case back to the lower court for further
proceedings based on the principles outlined in a
Supreme Court majority opinion.
. . . Almost
always the appellate court will do just that -- rethink
the case and decide it differently based on what the
Supreme Court majority has said. Infrequently, an
appellate court seems to turn a deaf ear, and hands down
a new decision that looks very much like its first one.
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