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Argument analysis: Justices have strong views about removal of class actions

Yesterday morning’s argument in Home Depot U.S.A. v. Jackson was a notable one, as Justice Elena Kagan brought a strong view of the case to the bench and proceeded to dominate the argument. The case involves the removal of litigation from state court to federal court. Under Section 1441 (and predecessor provisions dating back to the 18th century), “the defendant or the defendants” generally has a right to remove “any civil action brought in a State court of which the [federal] district courts ha...
Tags: Home Depot, Featured, Law, Congress, Citibank, Jackson, Sonia Sotomayor, John Roberts, Alito, Sotomayor, Stephen Breyer, Breyer, Elena Kagan, Kagan, Samuel Alito, Goldstein Russell

Opinion analysis: Interesting 5-4 coalition holds that the ACCA reaches robberies that require force sufficient to overcome resistance

In the first 5-4 decision of this term (Stokeling v. United States), the Supreme Court ruled yesterday that state robbery statutes that require “resistance … overcome by physical force,” even if the force used is “minimal,” are sufficient to satisfy the prior-conviction requirement of the federal Armed Career Criminal Act. This result was not as surprising as the grouping of the justices. Justice Clarence Thomas’ majority opinion was joined by Justice Stephen Breyer, while Justice Sonia Sotomayo...
Tags: Florida, Featured, Supreme Court, Law, Congress, United States, Davis, Johnson, Thomas, Sonia Sotomayor, Antonin Scalia, John Roberts, Scalia, U S Court of Appeals, Sotomayor, Stephen Breyer

Argument analysis: Justices weigh text and history of 21st Amendment in challenge to state residency requirement for liquor licenses

Ratified in 1933, the 21st Amendment ended Prohibition – which (fun fact!) was established by the 18th Amendment, ratified 100 years ago today. It also gave states broad power to regulate alcoholic beverages. At today’s oral argument in Tennessee Wine and Spirits Retailers Association v. Blair, the justices considered exactly how expansive that regulatory power is. In particular, does the 21st Amendment allow Tennessee to impose a two-year residency requirement for anyone who wants a retail lice...
Tags: Amazon, Utah, Featured, Supreme Court, Law, Tennessee, Nashville, Ruth Bader Ginsburg, Memphis, Wilson, Sonia Sotomayor, John Roberts, Phillips, Blair, Howe, Alito

Argument analysis: Justices grapple with notice-and-comment rulemaking for Medicare and beyond

Medicare was before the Supreme Court yesterday in a case that could have significant implications for administrative law. At the granular level, the case, Azar v. Allina Health Services, concerns whether the Department of Health and Human Services was permitted to change, without notice and comment, an important reimbursement formula for hospitals that treat many low-income patients. That question alone determines the fate of $3 to $4 billion. But the stakes are higher because the case requires...
Tags: Featured, Supreme Court, Law, Congress, Medicare, Ruth Bader Ginsburg, National Labor Relations Board, Shah, Thomas, Sonia Sotomayor, APA, HHS, D C Circuit, Department of Health and Human Services, Sotomayor, Bowen

Relist Watch

John Elwood reviews Monday’s relists. I’m today, so I’m going to be more summary than usual. The April calendar already appears to have a full complement of 12 cases, but the court in theory could add to it with this Friday’s grants. Admittedly, if it does so, petitioners won’t have the full 30 days to file reply briefs before oral argument. After this Friday, the court’s next scheduled conference isn’t until February 15 – almost a month from now. And any cases granted at that conference will ...
Tags: Texas, Featured, Supreme Court, Law, Congress, Virginia, New York City, Freedom, Alabama, Indiana, Dhs, United States, House Of Representatives, Kansas, Louisiana, Nielsen

Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents

Arbitration month at the Supreme Court continued this morning with the unanimous decision in New Prime Inc. v. Oliveira – following by a single week the unanimous decision in Henry Schein v. Archer & White Sales. New Prime, though, is anything but business as usual: Justice Neil Gorsuch’s opinion for a unanimous court rejects a claim for arbitration for the first time in a string of more than a dozen of the Supreme Court’s cases stretching back more than a decade. Indeed, I doubt the court has r...
Tags: Featured, Supreme `` Court, Law, Congress, United States, Ruth Bader Ginsburg, Thomas, Henry Schein, John Roberts, Ginsburg, Kavanaugh, INS, Oliveira, Gorsuch, Merits Cases, Chadha

Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity. Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Li...
Tags: Featured, Supreme Court, Law, Congress, United States, Adams, Sonia Sotomayor, TVA, John Roberts, Roberts, Alito, Rouse, Tennessee River, Sotomayor, Stephen Breyer, Breyer

Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

The week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the case, they seemed skeptical about allowing broad fee awards. The case calls for a reading of Section 505 of the Copyright Act, which defines the recove...
Tags: Featured, Law, Congress, Court, Ruth Bader Ginsburg, Paul Clement, Sonia Sotomayor, John Roberts, Perry, Roberts, Sotomayor, Elena Kagan, Kagan, RIMINI, Clement, Mark Perry

What the Bible Says About Contraception

When we Catholics defend our Church’s teaching about contraception, we almost always use philosophical arguments that appeal to the natural law without relying on God or revelation. These kinds of arguments are great, as they can appeal to people of any faith (or even no faith), but there is another approach we can take as well, one that is particularly helpful when discussing the issue with other Christians: we can look to the teaching of Scripture on the subject. The Bible does not explicitly ...
Tags: Featured, Law, Israel, Church, Religion, Jesus, Leviticus, Judah, Dignity of Life, Onan, Leviticus 20:13

No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service...
Tags: Texas, Featured, Supreme Court, Law, Kentucky, New York City, Indiana, United States, Lgbtq, White, Trump, U S Supreme Court, Toshiba Corp, Moore, Michaels, Howe

Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, althoug...
Tags: New York, Featured, Supreme Court, Law, California, White House, Usda, United States, South Dakota, United Arab Emirates, Davis, Wisconsin, Lgbtq, Smith, Ruth Bader Ginsburg, Newton

Book review: “Ruth Bader Ginsburg”: The evolution of a justice

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane...
Tags: Featured, Sweden, Supreme Court, Law, Virginia, Book Reviews, Brooklyn, United States, Aclu, Bill Clinton, Naacp, Ruth Bader Ginsburg, Columbia Law School, Harvard Law School, Senate Judiciary Committee, American Civil Liberties Union

Relist Watch Returns

John Elwood reviews the first relists of 2019. Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be ...
Tags: Florida, Texas, Featured, Maryland, Supreme Court, Law, Congress, California, Planned Parenthood, Kentucky, Virginia, New York City, Freedom, Alabama, Indiana, United States

Argument analysis: The familiar yet fresh debate in Franchise Tax Board of California v. Hyatt

Federal courts aficionados have been looking forward to the oral argument in Franchise Tax Board of California v. Hyatt, and the event did not disappoint. The question was whether to overrule the decades-old precedent Nevada v. Hall, which held that states lack sovereign immunity in one another’s courts. The argument largely broke down according to familiar ideological lines, but the discussion still had verve and creativity, in part thanks to the performances of veteran advocates Seth Waxman an...
Tags: Featured, Supreme Court, Law, California, Nevada, Ruth Bader Ginsburg, Hall, Hyatt, Sachs, Sonia Sotomayor, John Roberts, Waxman, Alito, William Rehnquist, Sotomayor, Stephen Breyer

A “view” from the courtroom: Comity Central

This term of the court has had plenty of arguably boring cases on statutory interpretation, pre-emption and procedure. But every now and then a low-key case comes along that results in an argument amounting to a heady constitutional seminar. Today’s lone case for argument, Franchise Tax Board of California v. Hyatt, will be one of those. Seth P. Waxman for petitioner (Art Lien) When the court takes the bench, Justice Ruth Bader Ginsburg is again absent as she recuperates from her recent lu...
Tags: New York, Featured, Maryland, Supreme Court, Law, California, Georgia, United States, Hawaii, Social Security, Broadway, Nevada, University Of California Berkeley, Social Security Administration, Ruth Bader Ginsburg, Hall

Argument preview: Justices to consider constitutionality of residency requirements for liquor licenses

The Constitution’s 21st Amendment gives states the power to regulate the distribution of alcohol into and within a state, while a doctrine known as the dormant commerce clause (derived from the Constitution’s commerce clause) bars states from discriminating against interstate commerce. Next week the Supreme Court will hear oral argument in a challenge to a Tennessee law that requires anyone who wants a retail license to sell alcohol in Tennessee to have lived there for at least two years. A fe...
Tags: Utah, Featured, Maryland, Supreme Court, Law, Congress, Tennessee, Nashville, Memphis, Knoxville, Howe, U S Court of Appeals, Doug, Asheville North Carolina, David Trone, Alcoholic Beverage Commission

Reargument preview: A new theory of when local-government takings occur

Photo credit to Pacific Legal Foundation On Wednesday, for the second time this term, the court will hear argument in Knick v. Township of Scott. The case addresses when property owners who allege that a local government has taken their property can bring a lawsuit in federal court. A 1985 precedent, Williamson County Regional Planning Commission v. Hamilton Bank, requires such plaintiffs to first make use of the state’s compensation procedures; only then can they say whether their property h...
Tags: Featured, Supreme Court, Law, Congress, United States, Pacific Legal Foundation, Samuel Alito, Knick, Williamson County, Gorsuch, Merits Cases, Noel Francisco, Brett Kavanaugh, Williamson County Regional Planning Commission, Hamilton Bank, Neil Gorsuch

Argument analysis: Searching for the least unnatural reading

The second argument on Monday was in Obduskey v. McCarthy Holthus LLP, a case about whether law firms that handle nonjudicial foreclosures are “debt collectors” within the meaning of the Fair Debt Collection Practices Act. If the argument clarified anything, it’s that the FDCPA is a messy statute. This case arises from a crowded corner of consumer law involving significant state and federal regulations that do not always play well together. Colorado foreclosure law requires a firm initiating a n...
Tags: Featured, Law, Congress, Colorado, United States, Ruth Bader Ginsburg, Bond, Mccarthy, Wells Fargo, Fdcpa, Sonia Sotomayor, John Roberts, Sotomayor, Stephen Breyer, Breyer, Elena Kagan

Argument analysis: Justices wade deep into the copyright weeds

Tuesday’s argument in Fourth Estate v. featured competing interpretations of the phrase “registration of the copyright claim has been made” in 17 U.S.C.§ 411(a), which requires copyright registration as a prerequisite for filing an infringement suit. Because much of the argument focused on niceties of textual interpretation, I’ll quote the language of the relevant subsection: [N]o civil action for infringement of the copyright in any United States work shall be instituted until p...
Tags: Featured, Supreme Court, Law, Congress, United States, Ruth Bader Ginsburg, Copyright Office, Sonia Sotomayor, John Roberts, Ellis, U S Court of Appeals, Elena Kagan, Kagan, Kavanaugh, 11th Circuit, Fourth Estate

Argument analysis: Justices grapple with preclusion and “occupation” in Crow Tribe treaty case

On Tuesday, the Supreme Court heard argument in its latest foray into Indian treaty interpretation, Herrera v. Wyoming. The case concerns the persistence of the Crow Tribe’s hunting right in the 1868 Second Treaty of Fort Laramie. In an occasionally meandering argument, the Supreme Court repeatedly circled the three issues at the core of the case: issue preclusion, the implications of the court’s holding in its 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians, and the meaning of...
Tags: Featured, Minnesota, Supreme Court, Law, Wyoming, Sonia Sotomayor, Ward, John Roberts, Roberts, Liu, Randy, U S Court of Appeals, Sotomayor, Stephen Breyer, Breyer, Mille Lacs

Opinion analysis: Kavanaugh’s first opinion rejects vague exception limiting enforcement of arbitration agreements

The justices’ first opinion day of 2019 brought the first opinion from Justice Brett Kavanaugh, writing for a unanimous court in Henry Schein Inc. v. Archer & White Sales Inc. The case is the most recent in a decade-long string of opinions under the Federal Arbitration Act, in which the Supreme Court consistently has reversed lower-court decisions refusing to enforce arbitration agreements. Many of those cases have been decided by narrow 5-4 majorities, which has raised the possibility that the ...
Tags: Featured, Supreme Court, Law, Henry Schein, The Supreme Court, Henry Schein Inc, Anthony Kennedy, Kavanaugh, Varela, Oliveira, Merits Cases, Lamps Plus, Brett Kavanaugh, New Prime Inc, Archer White Sales Inc, Kennedy Supreme Court

Opinion analysis: Social Security cap on attorney’s fees applies separately to successful representation before a court

According to a unanimous opinion released today, Social Security law does not impose an aggregate cap of 25 percent on attorney’s fees for successful representation of a Social Security disability claimant before both the Social Security Administration and a court. Instead, a 25 percent cap applies separately to representation before the court. This is a win for attorney Richard Culbertson, who represented a disability claimant both before the Social Security Administration and in court. He may ...
Tags: Featured, Supreme Court, Law, Congress, Social Security, Social Security Administration, Clarence Thomas, Weil, Merits Cases, Amy Weil, Richard Culbertson

Unnamed corporation seeks to file petition for review in grand jury dispute (UPDATED)

UPDATE: Just a few hours after the unnamed corporation appealed to the Supreme Court, the justices denied the company’s request to put the lower court’s order requiring it to provide the information or pay penalties on hold. The justices also vacated the temporary stay that Chief Justice John Roberts had imposed on December 23. There were no recorded dissents from the order, and no explanation for the ruling. However, one factor in the decision whether to grant such a request is whether there is...
Tags: Featured, Supreme Court, Law, Canada, John Roberts, D C Circuit, Howe, Guantanamo Bay Cuba, National Law Journal, Robert Mueller, Tony Mauro, What's Happening Now, Djamel Ameziane

Supreme Court declines to intervene in Virginia redistricting dispute

Today the Supreme Court rejected a request by Virginia legislators to put lower-court proceedings in a case challenging the legislative districts drawn for the state’s House of Delegates as the product of unconstitutional racial gerrymandering – that is, the idea that legislators relied too much on race when drawing the maps — on hold until the justices rule on the case. Today’s order means that a federal district court’s efforts to create a new map, with the assistance of a voting-rights expert...
Tags: Featured, Supreme Court, Law, California, Virginia, House, State, John Roberts, House of Delegates, Howe, Merits Cases, Virginia House of Delegates, Bethune Hill, Court The post Supreme Court

Argument preview: Requiring notice and comment under the Medicare statute

The intricacies of the Medicare program will be on display at the Supreme Court next week, in a case challenging a major Department of Health and Human Services payment determination issued without notice-and-comment procedures. The case has administrative law mavens tuned in as well, as it may have broader implications for the still unresolved but critical question of when agencies in general may act without such procedures. Medicare, the massive federal health insurance program for the elder...
Tags: Texas, Featured, Supreme Court, Law, Congress, Barack Obama, Cms, United States, Medicare, Department Of Homeland Security, APA, HHS, D C Circuit, Department of Health and Human Services, Kavanaugh, Sebelius

Argument preview: Justices to consider removal of class actions to federal court

Next Wednesday the justices will hear their second major class-action case of the year. Following on Frank v. Gaos (argued in November), Home Depot USA v. Jackson considers the ability of defendants to remove class actions to federal court. Unlike Frank v. Gaos, which considered a largely untethered question about the propriety of class-action settlements that do not provide direct compensation to class members, Home Depot USA presents two crisp questions of statutory interpretation. A litt...
Tags: Home Depot, Featured, Supreme Court, Law, Congress, Citibank, Jackson, North Carolina, Frank, Goldstein Russell, George Jackson, Merits Cases, GAOS, Home Depot Home Depot, CAFA, November Home Depot USA

Argument analysis: Gleaning the FDA’s meaning for impossibility pre-emption

Much of the federal government may be in shutdown mode, but the Supreme Court is still open for business. The Supreme Court opened its January session Monday morning with argument in Merck Sharp & Dohme Corp. v. Albrecht, a case about the workings of the Food & Drug Administration (still partially open) and when the agency’s actions may insulate drug manufacturers from state tort suits through “impossibility pre-emption.” An important and often-used litigation defense for manufacturers, impossib...
Tags: Featured, Supreme Court, Law, Merck, United States, Fda, Sonia Sotomayor, Stewart, John Roberts, Albrecht, Roberts, Ginsburg, Levine, Sotomayor, Stephen Breyer, Breyer

Argument preview: Justices to consider limits on awards of “costs” to prevailing parties in copyright cases

Rimini Street v Oracle USA, set for argument on January 14, is another one of those routine statutory interpretation cases that reach the Supreme Court’s docket not because they present deep intellectual issues, but rather because of the justices’ continuing obligation to ensure uniformity in the decisions of the lower courts. The question in this case is the nature of the “costs” that a federal district court can award the prevailing party in litigation under the federal Copyright Act. The...
Tags: Featured, Supreme Court, Law, Congress, Oracle, RIMINI, Rimini Street, Merits Cases, Oracle USA

Argument preview: When the Tennessee Valley Authority’s activities cause personal injury, may it claim discretionary policy immunity from liability?

When sued for a common-law tort, the United States government enjoys the benefit of a statutory exception to liability that prevents judicial second-guessing of executive policy decisions. The question before the Supreme Court in Thacker v. Tennessee Valley Authority is whether the same “discretionary function” defense should be judicially implied for a tort suit against a federally chartered corporation engaging in what is arguably commercial activity. The Tennessee Valley Authority, a fed...
Tags: Featured, Supreme Court, Law, Congress, Senate, United States, Amtrak, TVA, 9th Circuit, The Supreme Court, Pierce, U S Court of Appeals, Tennessee River, Burr, Federal Housing Administration, Tennessee Valley Authority

The justices return, without Ginsburg or any new grants (Updated)

[Editor’s Note: This post was updated to cover the four cases in which the Supreme Court asked the U.S. solicitor general to file briefs.] The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts. The justices issued...
Tags: Texas, Featured, Supreme Court, Law, Virginia, New York City, Court, Georgia, Indiana, United States, Citigroup, Argentina, Ohio, Atkins, Lgbtq, Ruth Bader Ginsburg

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