SCOTAL Itch
 

It's the first Monday of October, which means the Supreme Court of the United States is again open for business! SCOTUSblog has a massive linkfarm of previews right here.

The constitutionality of the individual mandate provision of the Patient Protection and Affordable Care Act -- which even the government is asking the Court to review -- figures to occupy center stage and generate a massive political stink come June 2012, but that's far from the only interesting issue. Tomorrow, for instance, the Court will hear argument in a couple of cases involving whether the right to counsel under the U.S. Constitution applies to state law habeas corpus and similar proceedings. The Court hasn't expressed much interest in such state law post-conviction proceedings before.

This here thread can serve as a dumping ground for news, views, questions, tirades, etc. regarding the new Supreme Court term.

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:fixed:

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If only all our shameless currying for thread title of the month came out this well.

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I'm looking forward to the it's-a-free-exercise-of-religion-to-fire-a-disabled-employee case.

#WWJD

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Is that the Hosanna-Tabor case or some other abomination that I have yet to hear of?

I hope it's Hosanna-Tabor, because lol Wallbuilders.

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Yeah that's it. We had a similar one here, but it was age discrimination, not disability.

Also the eyewitness evidence case, Perry v. New Hampshire, should be very interesting indeed (something of a Wisconsin corollary here).

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Well, THAT was no fun! The suspense disappeared before the opinions began. :sadcheer:

Anyway, the transcript of today's oral argument in Hosanna-Tabor is available here. You can't help but love how in Scalia's mind the wall of separation between religion and government is sky high and impregnable in cases such as this, but dissolves completely in other contexts.

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If I knew that teaching a religious class made one a minister, I'd be afraid to teach comparative religions!

So many bosses!

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I only came here to tell you to be careful and not nick a blood vessel like I did when I scratched my scrotum because I totally read the thread title as scrotal itch.

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Today the Court decided to hear United States v. Alvarez, which involves whether and to what extent the government can criminalize false claims of having received a medal or decoration during military service. :ff:'s prior discussion of the Stolen Valor Act and the Ninth Circuit case that SCOTUS just agreed to review is available here.

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United States v. Jones is scheduled for oral argument on November 8. The issues are whether the pigs violate the Fourth Amendment when, without consent or a warrant, they (1) install a GPS tracking device on someone's vehicle and/or (2) use the device to track the vehicle's movements on public streets. Some lawprof commentary on why the case isn't the no-brainer ya might think is available here and here.

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Today the Supreme Court agreed to hear Arizona v. U.S. The issue is whether the lower federal courts (U.S. District Court for the District of Arizona and U.S. Court of Appeals for the Ninth Circuit) properly enjoined enforcement of certain components of Arizona's S.B. 1070, the We Hate Us Some Brown-Ass Messicans but Nonetheless Consider Them an Indispensable Component of our Much-Beloved Prison Labor System Act, discussed here.

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This here poast is a repository for briefs filed in the pending Supreme Court cases dealing with the Patient Protection and Affordable Care Act. We'll arrange 'em by issue.

CONSTITUTIONALITY OF THE INDIVIDUAL MANDATE:

- The merit brief of the Solicitor General on behalf of the government is here (pdf, 130 pages). The government argues that statutory requirement to procure health insurance coverage or face a financial penalty is (1) valid under the Commerce Clause in conjunction with the Necessary and Proper Clause, and (2) a proper exercise of the taxing power.

- An amicus brief (pdf, 46 pages) filed by AARP in support of the individual mandate is available here.

SEVERABILITY OF THE INDIVIDUAL MANDATE:

The issue here is whether the individual mandate is "severable" from the rest of the PPACA. If so, the rest of the legislation stands even of the mandate is ruled unconstitutional. If not, a finding that the individual mandate is unconstitutional will drag down some or all of the remaining PPACA provisions.

The U.S. Court of Appeals for the Eleventh Circuit previously ruled that the individual mandate is unconstitutional but wholly severable from the remainder of the Act.

- A group of private litigants challenging the 11th Circuit's severability ruling filed its brief (pdf, 235 pages) today. Severability, the litigants correctly argue, involves determining Congressional intent. The litigants contend that the individual mandate operates as a giant subsidy for the insurance industry, a subsidy that essentially funds the PPACA's prohibitions against denying coverage or charging increased premiums because of preexisting conditions, along with numerous similar prohibitions. The argument is that without the individual mandate Congress would not have enacted the insurance regulations, and without those provisions the rest of the PPACA is an empty shell. Thus, so the argument goes, we've gotta conclude that Congress did not intend any other provision of the PPACA to stand absent the mandate.

- The states challenging PPACA also filed their brief (pdf, 169 pages) on severability today. The thrust of the state's argument is the same as that of the private litigants.

WHETHER THE ANTI-INJUNCTION ACT BARS THESE LAWSUITS:

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CONSTITUTIONALITY OF PPACA'S MEDICAID EXPANSION PROVISIONS:

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If I understood the report I heard on NPR recently, Montana's Supreme Court has recently restored a 100-year-old state ban on direct spending by corporations on political candidates. That's a direct challenge to the Citizens United ruling, no?

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The Montana case is linked here. Whether that ruling qualifies as a direct challenge to Citizens United depends on who you believe. The majority in the Montana case determined that Citizens United wasn't controlling based on what they considered significant differences between the laws under consideration in the two cases. The dissenters in the Montana case said that Citizens United is a shitty decision but controlling nonetheless.

The Montana decision just came down, and the losers haven't yet sought SCOTUS review. When they do, I suspect that they'll have a much better chance of getting in than most.

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And yes, firing a disabled employee is indeed a free exercise of religion:

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC at 13-14 (pdf, 39 pages).

The vote was 9-0. The Court had no trouble deciding that the fired employee in this case was a "minister" for purposes of this constitutionally-mandated exception to employment discrimination laws, but declined to establish definitive criteria for use in other cases. Thomas would require that courts defer to the churches on that issue.

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What a fucked-up country.

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Heard that on NPR yesterday. Seriously, is Thomas's entire career an elaborate troll? Is his Clarence mask going to slip off one day to reveal Gallagher or something?

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Supreme Court Overturns 'Right v. Wrong' | The Onion - America's Finest News Source

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The Texas redistricting decision is in, and it's completely unsurprising!

The 2010 census revealed that Texas had 4 million more residents than it had in 2000. Re-drawing district lines for both federal and state legislative offices was necessary to comply with the constitutional one person, one vote standard. The Republican-dominated state legislature got to work and devised a comprehensive redistricting plan.

Thing is, Section 5 of the 1965 Voting Rights Act provides that states with a history of voting discrimination must get approval from the Attorney General or the U.S. District Court for the District of Columbia before any change in voting procedures (redistricting included) can take effect. It'll come as no surprise to anyone that Section 5 applies to Texas.

The state legislature immediately submitted its redistricting plan to the district court for approval. That case remains pending.

In the meantime, private plaintiffs filed suit in the U.S. District Court for the Western District of Texas seeking to block the redistricting plan on the ground that it discriminates against Hispanics in violation of the VRA and the federal Constitution. The Texas court held a trial but declined to rule in advance of the D.C. court's resolution of the preapproval case.

With primary elections approaching, the Texas court held hearings and issued an interim redistricting plan. The state legislature blew a gasket and demanded that the Supreme Court stay the interim plan pending appeal. The Supreme Court granted the stay, which for all practical purposes meant that a majority of the justices had already decided the legislature would win.

Today, a mere eleven days after oral argument, the Supreme Court ruled 9-0 in favor of the Republicans state legislature, holding that the Texas court's interim plan is insufficiently deferential to the Republicans state legislature.

Adding further credence to Sock Puppet's suggestion that Thomas' career is but a really big troll, ol' Clarence wrote a short concurring opinion reiterating his view that Section 5 of the VRA is an unconstitutional infringement on state sovereignty. Unless and until the state legislature's plan is found to violate the Constitution or the substantive provisions of the VRA, that plan controls in any upcoming election. (Entertainingly enough, Section 5 and the preapproval process set forth therein is likely the only reason the Texas court hasn't yet ruled on the substantive challenges to the state legislature's plan.)

Perry v. Perez (pdf, 13 pages)

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According to Wired, the Supreme Court has now ruled that certain works in the public domain may be yanked back and put under copyright again. :shakecopyright:

I'm not sure about the meaning of the legislation—if it affects the copyright status of works published in 1923 and after only. If before 1923, whether it affects those works that were published by foreigners whose works are under copyright in Life + 70 countries or if they're also going to apply it to Americans whose work is still under copyright in Life + 70 countries.

Can any of our specialists in legalize help me out here?

Whatever the ruling, it seems like it might have the most appalling repercussions for those of us who work with public domain texts, scores, and films. :sadno:

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The Court ruled today that attaching a GPS device to a suspect's car and using to monitor the car's movements on public streets is indeed a search for Fourth Amendment purposes. It was pleasantly surprising to see a unanimous Court go all :lolfruits: on the government's no-search argument.

The vote was unanimous, but the reasoning was split. Scalia's position, which garnered five votes (himself, Roberts, Kennedy, Thomas and Sotomayor), is that traditional trespass-based Fourth Amendment analysis -- which was good enough for the Framers and is therefore good enough for us, goddamnit -- plainly mandates the conclusion that what the government did here was a search because in 1791 actions like the ones at issue here would have constituted a common law trespass to chattels. We needn't bother ourselves with that Johnny-Come-Lately "reasonable expectation of privacy" shit, which dates back only to 1967, because subsequent decisions that line of cases only supplements (but doesn't displace) trespass analysis. The government waived its alternative argument that the search was reasonable, thereby comporting with the 4th, by failing to raise it in the lower courts.

Alito and three other justices (Ginsburg, Breyer and Kagan) believe that continued use of the old school trespass analysis is both silly and unwarranted under current law. The reasonable expectation of privacy test should be the only rule. Alito wrote that relatively short-term GPS use would not qualify as a 4th Amendment search, but the 28 days at issue here crossed the line. Alito doesn't say where the line is or how we should go about finding it. That, he says, is for future cases.

Sotomayor wrote a short concurring opinion generally agreeing with the narrow approach Scalia used to resolve this particular case but suggesting that under reasonable-expectation analysis the time has come to shitcan "the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties" as "ill suited to the digital age."

U.S. v. Jones (pdf, 34 pages)

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Pretty much!

Golan v. Holder (pdf, 69 pages)

Me neither. After reading the syllabus and first 4 pages of the majority opinion I'm all :eyesbleed:

Seems that the U.S. steered clear of the 1886 Berne Convention for over a century. Even after joining up in 1989 we didn't actually do much to enforce the Convention in this country. That, of course, pissed off more than a few of the other Berne signatories.

The legislation at issue in this case came out of the same overall dialogue that resulted in creation of NAFTA and the WTO. Viewed in that light, how can the legislation possibly be any good?

Congress responded to the 1994 Uruguay agreements with a statute (Section 514 of the Uruguay Round Agreement Act) that, according to the Court:

The full text of the statute is now codified here and here.

The statute does confer copyright protection on works considered to be in the public domain here in the U.S. One of the issues was whether the Copyright Clause of the U.S. Constitution authorized the legislation. The plaintiffs in this case wanted the Court to hold that the language "for limited Times" in the CC prohibited conferring copyright protection on works in the public domain. The Court rejected that (along with a First Amendment argument) by a 6-2 vote.

Might take a closer look at this one, but only after my eyes stop bleeding.

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This sounds like it might be moderately good news for us at LibriVox, because we were worried that many of our works would be re-copyrighted because they are public domain in the U.S. (pre-1923) but not in countries where it's Life + 70. A.A. Milne, P.G. Wodehouse, George Bernard Shaw, Friedrich Nietzsche in English translation, Hilaire Belloc, etc. would all be affected if that were the case. But now it seems like it's just going to be works that were published after the January 1, 1923 cutoff date. That might affect some of the works in the LibriVox catalog, but not very many. At a guess, the only thing I can see going back under copyright from LibriVox is Anthem by Ayn Rand, and frankly I wouldn't miss it.

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The Supreme Court proceedings are off to a flying start in this one. The losing parties have filed an application (pdf, 45 pages) with Justice Kennedy (in his capacity as circuit justice for the Ninth Circuit) to stay the Montana Supreme Court's decision pending the outcome of their request for SCOTUS review.

In fact, they're going a few steps further than that. They're asking that SCOTUS (1) treat their stay application as a petition for certiorari, (2) grant cert and (3) summarily reverse the Montana Supreme Court because its ruling is so completely contrary to Citizens United that it can't possibly stand.

Justice Kennedy has requested that the state file a response by 2/15.

The lawyer for the parties challenging the Montana law is the guy who ultimately won Citizens United. Dude's whole life revolves around destroying campaign finance reform through litigation.