U.S. Supreme Court

The U.S. Supreme Court is facing a circuit split on whether the federal government can provide tax subsidies to low-income workers to obtain health insurance on the federally-run insurance exchanges, SCOTUSBlog's Lyle Denniston reports. The U.S. Court of Appeals for the D.C. Circuit has said no (but the en banc court is going to hear the case in December). The Fourth Circuit has said yes. U.S. District Judge Ronald A. White, who sits in Oklahoma, added to the list of 'no' rulings yesterday.

According to the New York Times, White's ruling appears to increase the likelihood that the Supreme Court will resolve the issue. SCOTUSBlog's Denniston reports that White "relied on what he found to be the clear language of the ACA on that point — that is, subsidies are only to be available on an exchange 'established by the state.'  It was not his option, the judge said, to read the entire health care law to find reasons to make sure that the subsidy system worked in all exchanges across the country, federal and state."

The Federal Circuit, which has exclusive appellate jurisdiction over patents, has made patent law more favorable to patentholders, leading to a surge in litigation, Vox's Timothy B. Lee reports. The U.S. Supreme Court has been scrutinizing the intermediate appellate court more frequently, reviewing a record six rulings last term, Lee further reports: "In a new essay, University of California, Hastings law professor Robin Feldman writes about the Supreme Court's increasingly blunt efforts to force the Federal Circuit to respect the high court's own precedents, which generally place stricter limits on patent rights ... In all of [six] cases [from last term], Feldman told me, "the Supreme Court soundly and unanimously rejected the Federal Circuit's logic." For example, the Supreme Court struck down a software patent in CLS Bank v. Alice.

The U.S. Supreme Court will be meeting in conference Monday to consider whether to take up the issue of same-sex marriage, writes U.S. News and World Report's Tierney Sneed: "The petitions come from four separate decisions out of three different U.S. Courts of Appeal on cases emanating from five different states."

Garrett Epps, a constitutional law professor, said the Supreme Court isn't likely to take up the issue until a circuit court of appeals upholds a ban on same-sex marriage, leading to a split among intermediate federal appellate courts.

Also at issue is whether bans should be rejected on equal protection or due process grounds: "Bans in Utah and Oklahoma, both overturned in separate decisions by the 10th Circuit, were decided on the basis of due process, meaning that denying gay couples the ability to wed deprives them of their fundamental right to marry. The 7th Circuit decision finding Indiana’s and Wisconsin’s same-sex marriage bans unconstitutional did so on the grounds of the equal protection clause of the 14th Amendment, with the unanimous panel arguing that same-sex marriage bans discriminate against one’s sexual orientation. If the Supreme Court decides on a case that invokes the equal protection clause, how it interprets the 14th Amendment could affect judicial rulings on other questions of LGBT rights and discrimination."

The U.S. Supreme Court will be getting an education on "the rhythmic, slangy — sometimes violent — poetry of rap music" as it considers the standard by which violent speech can be judged as a true threat this term, The National Law Journal's Tony Mauro reports. Elonis v. United States, which is set for argument December 1, "asks whether the online posting of threatening language like that found in rap lyrics violates a federal law against transmitting 'any threat to injure the person of another' across state lines," Mauro further reports. Anthony Elonis was convicted of threatening law enforcement, his spouse and others from the rap-like posts he made on Facebook. Elonis argues that pure speech must be judged by a subjective intent standard, but the government says it only needs to prove that a reasonable person would view speech as a true threat.
 

SCOTUSBlog's Lyle Denniston reports that the Supreme Court will look at the same-sex marriage cases in which governmental officials are seeking to have their bans on same-sex nuptials restored. The court will have a conference on the cases September 29, Denniston reports: "Together, the petitions raise two constitutional questions:  do states have power to refuse to allow same-sex couples to marry, and do states have power to refuse to recognize same-sex marriages performed in other states?  In all of the federal appeals courts’ decisions being challenged in these cases, state marriage bans of one or both of those kinds were struck down under the federal Constitution, either under equal protection or due process guarantees, or both." Some of the cases also asks the justices to specify a standard for scrutinizing the constitutionality of laws that implicate LGBT rights, Denniston adds.

The U.S. Supreme Court is being asked to consider whether the Animal Enterprise Terrorism Act chills animals rights demonstrations, writes Jamie Schuman of Supreme Court Brief (the federal law prohibits anyone from intentionally causing the loss of money or property to an institution using animals). While the court ruled in Clapper v. Amnesty International that harm must be "certainly impending" for plaintiffs to get standing, the Center for Constitutional Rights, counsel for the five animal-rights activists bringing the challenge, argues the activists have standing because they have an objectively reasonable fear that the government will use the law to punish their speech, Schuman further reports. CCR wants the Supreme Court to grant certiorari, vacate the lower court opinion and remand the case without oral argument as the high court did in another pre-enforcement challenge to a criminal statute. The justices declined to apply Clapper in the case, Schuman also reports.

As the investigations and civil turmoil continue after Ferguson Police Officer Darren Wilson shot Michael Brown to death in Ferguson, Mo., a 25-year-old U.S. Supreme Court case will shape the paramaters on how the officer will be judged, the Associated Press reports: "The Supreme Court case, decided at a time when violence against police was on the rise, has shaped the legal standards that govern when police officers are justified in using force. The key question about [Brown']s killing on Aug. 9 is whether a reasonable officer with a similar background would have responded the same way."

The case is Graham v. Connor. The late Chief Justice William Rehnquist wrote that '"the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'"

Law professor Josh Blackman, who developed a Supreme Court fantasy league, says colleagues and he have developed a computer model that can predict decisions of the U.S. Supreme Court with 70 percent accuracy, ABA Journal reports. The ninety variables included the party of the appointing president, a justice's ideological predilections and "the agreement level of the court." Blackman said the model could be used by lawyers deciding whether to settle cases or not.

According to the Associated Press, U.S. Supreme Court Justice Ruther Bader Ginsberg says the justices won't duck the issue of same-sex marriage after several courts around the country have found bans on same-sex marriage unconstitutional. She expects a case on the issue to be heard by June 2016.

Shawn DuBravac, chief economist of the Consumer Electronics Association, posits in Techdirt that the U.S. Supreme Court's rulings that warrants are needed before police may search criminal suspects' cellphones has struck the first blow to protect digital privacy in the era of the Internet of Things, or physical objects being connected to the Internet like smart thermostats, coffee pots and refrigerators: the decision "comes at just the right time, because it's not just our phones that are getting smart. Soon, just about everything we touch will capture data about us. Our cars. Our watches. Our clothing. The fundamental privacies at stake in this ruling transcend far beyond phones. The Supreme Court needed to write its decision with the bigger picture in mind, and it did."