Monday round-up

By Amy Howe
on Nov 10, 2014 at 8:09 am

On Friday afternoon, the Court announced that it would review a challenge to the availability of tax subsidies for taxpayers who purchase their health insurance on a marketplace – known as an exchange – established by the federal government.  Lyle Denniston covered the grant for this blog; contributors to our “snap symposium” on the grant included Nicholas Bagley, Abbe Gluck, and Jonathan H. Adler.  Other coverage comes from Nina Totenberg of NPR, William Mears of CNN, Adam Liptak of The New York Times, and Jaclyn Belczyk of JURIST.  Commentary comes from Noah Feldman at Bloomberg View, who suggests that, “from the standpoint of the Barack Obama administration, there is reason to be curiously concerned that the president’s signature legislative accomplishment is in jeopardy once again,” and from Roger Parloff of Fortune, who contends that, “[w]hatever [the Court] does, the outcome will define Chief Justice John Roberts Jr.’s legacy more than any case since he ascended the bench nine years ago.”

Earlier in the week, the Sixth Circuit rejected a series of challenges to four states’ bans on same-sex marriage, making it more likely that the issue will make its way to the Supreme Court soon.  Commentary on that decision, authored by Judge Jeffrey Sutton, comes from Leslie Griffin at Hamilton and Griffin on Rights, who expresses her hope that “Justice Kennedy is ready to write the landmark decision affirming the constitutional right to marry”; from Garrett Epps for The Atlantic, who contends that Judge Sutton’s opinion contains a “blunt demand—that the Supreme Court must answer the issues posed by same-sex marriage”; from Rebecca Bennett at the Ogletree Deakins blog, who summarizes the decision and its implications for employers in the states covered by the Sixth Circuit; from Damon Root at Reason’s Hit and Run Blog, who discusses the possible comparisons between reactions to Thursday opinion and to Judge Sutton’s opinion upholding the Affordable Care Act’s individual mandate; from Lisa Keen, who at the Keen News Service predicts that last week’s decision “will compel the U.S. Supreme Court to rule on the constitutionality of bans against marriage for same-sex couples”; from Ilya Shapiro at Cato at Liberty, who predicts that “Chief Justice Roberts maneuvers behind the scenes in such a way that argument [on the same-sex marriage issue] won’t be until next term begins in October but the ruling will come by Christmas 2015”; and from David H. Gans, who criticizes the decision in an op-ed for the Detroit Free Press.

Last week’s elections and the impact that it could have on President Barack Obama’s nominees to fill judicial vacancies, and in particular a hypothetical vacancy on the Supreme Court, are also a topic of discussion.  In the Los Angeles Times, David Savage and Timothy Phelps observe that “[t]he window for President Obama to add another liberal justice to the Supreme Court probably closed last week when Republicans took control of the Senate,” while at Mischiefs of Faction Paul Nolette similarly notes that, “[w]ith the new Senate environment strongly stacked against Obama, . . . we may even see a rare, though not unprecedented, long-term Supreme Court vacancy that continues throughout the remainder of the president’s final years in office.”

Briefly:

• Howard Fischer of Capitol Media Services (via the Casa Grande News) reports on a recent order issued by Justice Anthony Kennedy, who temporarily blocked the “implementation of a ruling by the 9th U.S. Circuit Court of Appeals voiding Proposition 100, a 2006 Arizona law which effectively denies many of those migrants even the opportunity to ask for bail.”
• At Comparative Patent Remedies, Thomas Cotter discusses the invitation brief filed by the Solicitor General recently in Kimble v. Marvel Enterprises.

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