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March 2016 Archives

When Justice Scalia died, just over six weeks ago, Senate Republicans immediately announced their opposition to an Obama-appointed replacement. They would withhold their advice and consent until after the Presidential elections, they maintained, even as the President nominated a well-liked, highly-qualified moderate like Merrick Garland.

But, Republican resolve might be weakening, and it's becoming more likely that we'll see a ninth justice before November.

The goal of the Clean Water Act is fairly straight forward: to protect and restore the waters of the United States. But what counts as "waters of the United States" is often a tricky and highly contentious question. And if federal agencies determine that your isolated marsh, seasonal ponds, or agricultural slough are subject to regulation under the act, then a whole host of legal restrictions can suddenly apply. Yet, you may not be able to challenge that determination until years in the future.

That is to say, CWA disputes can quickly get a bit murky. The Supreme Court jumped right into those muddy waters today, in its first major environmental case since the death of Justice Scalia. The court heard arguments in a challenge to CWA determinations that blended environmental and administrative law with questions of justice and jurisdiction.

Ladies and gentlemen, this is what an out-of-balance Supreme Court looks like. Today, a deadlocked Court issued a one sentence ruling in Friedrichs v. California Teachers Association, an important and highly-anticipated case about agency fees for public employee unions.

Perhaps to avoid a similar outcome in a challenge to Obamacare contraception rules, the Court also shifted gears in that case. Less than a week after oral arguments -- arguments which indicated an equally divided Court -- the Court has asked the parties to submit possible alternative systems to the current exemption procedures for religious employers who do not want to provide birth control coverage to their employees. Let's take a closer look at these two messes.

Supreme Court oral arguments ain't what they once were -- and that's not exactly a bad thing. According to a recent study comparing oral arguments in the contemporary Court with their mid-century predecessors, today's Supreme Court justices are more likely to crack jokes, more willing to speak harshly, and better prepared than they were 50 years ago.

Let's take a look at how things have changed.

Meet John Sturgeon, a hunter, a septuagenarian, an Alaskan, and, as of Tuesday, a victorious Supreme Court litigant. Sturgeon wound up before the Supreme Court after his hovercraft broke down as he was traveling through the Yukon-Charley Rivers National Preserve to hunt moose. Park officers told the moose hunter he couldn't use his hovercraft, or any other motorized equipment, on the rivers.

Sturgeon objected. The river, he argued, was Alaska's, not the federal governments'. And while longstanding precedent allows the federal government to regulate activities adjacent to and effecting federal lands, Alaska is different, Sturgeon argued. The Supreme Court agreed in a unanimous, but narrow, opinion.

The Supreme Court heard lively oral arguments this morning in a case over whether religious organizations must comply with Affordable Care Act rules on the provisioning of contraception through employee health insurance plans.

Those employers, which include religious universities, hospitals, and one group of nuns, don't actually provide contraception directly, however. They are already exempt from that requirement. Once they notify the government of their objections, their insurer handles employee contraception on its own. But even that, the employers argued before the Supreme Court today, is too great a burden on their religious beliefs. Here's how the arguments went down.

We knew it was coming and now it's started. Ever since Justice Scalia's sudden death in mid-February, the Supreme Court has been down a justice, evenly divided, four against four, between its more conservative and liberal wings. A deadlocked Court was inevitable and today the Court released its first equally divided ruling since Justice Scalia's passing.

Expect to see more of this in the future.

This morning, the Supreme Court declined to hear a challenge to Colorado's legalized marijuana brought by neighboring states Oklahoma and Nebraska. Both Oklahoma and Nebraska had sued the state over instate crime connected to Colorado's legal weed industry.

The denial should calm the nerves of marijuana enthusiasts, as the case threatened to end Colorado's experiment with legal pot. But, a dissent to the denial shows that not all of the High Court is ready to let Oklahoma and Nebraska's complaints slide.

A belated happy birthday to Ruth Bader Ginsburg! The Notorious RBG turned 83 on Tuesday.

To celebrate, we could talk about her new book, her jabots, or her history fighting with the Dean of Harvard Law, but we're going to focus on what really matters instead: her work. Here are Ruth Bader Ginsburg's five most important opinions from her almost 23 years on the Supreme Court.

When we introduced President Obama's Supreme Court nominee, Chief Judge of the D.C. Circuit Merrick Garland, yesterday we described his judicial philosophy as "khaki." We still think it's a fitting descriptor. Judge Garland doesn't have the biting tongue of Justice Scalia or the strong liberal perspective of Justice Ginsburg.

But there are a few places where Judge Garland stands out. When it comes to criminal law, environmental law, and the Second Amendment, Garland's rulings deserve some extra attention.

And it's Garland. After a month of speculation, President Obama upset many oddsmakers and nominated Chief Judge of the D.C. Circuit, Merrick Garland, for the Supreme Court. Garland is a bit of a surprise -- he's older, whiter, and more centrist than some of the others under consideration -- but he's also a widely respected jurist, a pick designed to frustrate Senate opposition.

Here's what you need to know about the potential Supreme Court justice, Merrick Garland.

There's a new addition to the Notorious RBG canon coming out soon(ish). Justice Ginsburg is penning a new book, My Own Words, to be released January, 2017.

The book, a collection of her writings and speeches on feminism, Judaism, the law, and the Court, will be her first published book since she was appointed as a justice in 1993.

Marriage equality is the law of the land. That much is settled. Despite this, a recent, very unexpected ruling from a federal judge in Puerto Rico, found otherwise -- holding that the rights guaranteed by the Fourteenth Amendment and last summer's gay marriage decision, Obergefell v. Hodges, don't apply to the la isla del encanto.

Don't worry, gay marriage advocates, the ruling will be overturned. But, it might force courts to seriously address the Insular Cases, a group of truly awful Supreme Court decisions that denied many of the protections of the Bill of Rights to U.S. territories like Puerto Rico.

The Supreme Court has been down a justice for almost a month now. And it may continue to be so for awhile, should Senate Republicans refuse to "advise and consent" until after November's presidential election.

But that hasn't stopped the Obama administration from moving forward with the selection process, seeking a replacement for the late Justice Antonin Scalia. Here's who they're reportedly vetting.

The Court's first major case addressing gay and lesbian rights since last summer's Obergefell decision appears to have been an easy one. Today, the Supreme Court overturned an Alabama ruling that denied parental rights to a lesbian woman who had adopted her children with her partner.

It was a unanimous per curium decision, made without full briefing or oral arguments. That's a strong sign that the Court believed Alabama's ruling was almost inarguably wrong. Let's see why.

The loss of Justice Scalia, and the lack of a replacement, has had obvious impacts on the Supreme Court itself. It's thrown some outcomes into question and even inspired Justice Thomas to speak up.

But now the realigned, eight-justice Court is starting to have a clear effect on litigants. At least one major company is settling its case, rather than take it before a Scalia-free Court, while other petitioners are having their cases delayed until next term.

Strict textualism is alive and well in the Supreme Court, even after Justice Scalia's passing. Nowhere can that be seen more clearly than in Lockhart v. U.S., one of the first decisions since Scalia's death.

The question presented: how to interpret statutory mandatory minimum sentences for sexual abuse. The result: a 6-2 split, broadly extending the reach of the statute. The cause: a dangling modifier the justices refused to overlook. Get out your grammar books, kids. This is going to be fun.

The Supreme Court heard oral arguments today in one of the most important cases of the term, Whole Women's Health v. Hellerstedt, a challenge to Texas's restrictive regulations on abortion clinics. If the court approves of the Texas law, it could soon become a model for reducing family planning access across the country. If the Court strikes it down, it would be a solid reaffirmation of Roe v. Wade and Planned Parenthood v. Casey.

To put it mildly, the stakes are high and Whole Women's Health is expected to be a contentious decision. But oral arguments today raised the possibility that the Supreme Court could end up not touching the merits at all.

SCOTUS Kicks California Escheat Law Case Down the Road

The Supreme Court will not review a controversial California law that allows the state to essentially take unclaimed property after three years, though Justice Samuel Alito did at least warn that the law raised serious constitutional issues that could come before the Court in the future.

California's escheat law has gotten progressively more onerous over time in almost lock step with the state's ever increasing revenue crisis that had only recently come under control during Gov. Brown.