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Musings on the U.S. Supreme Court Term at the Halfway


Dan Schweitzer, Supreme Court Counsel

U.S. Supreme Court Terms have a rhythm to them. They always begin with the “long conference” in late September, when the Justices decide which of the thousands of cert petitions that piled up over the summer should be granted. The first Monday in October arrives a week later, when the Justices begin hearing arguments. Every once in a while over the next seven months there’s a special tension in the courtroom, as a particularly important—maybe even history-making—case is being argued. Meanwhile, come December the Court issues its first opinions in argued cases. For the next few months, most of the opinions are unanimous and come in low-profile cases. But as spring nears and then arrives, more opinions have dissents, and more of them are front-page news. This evolution culminates in late June, when the Court decides its most hotly-contested cases.

                So where does that leave us in February? At press time, the Court has issued 19 opinions so far. Twelve were unanimous and another was an 8-1 vote. The Court has divided 5-4 only once, with the Justices fracturing over whether they had jurisdiction to resolve an otherwise simple case.

                Still, for we Court-watchers there is little the Court does that is uninteresting. And like everyone else, we can see the storm clouds on the horizon. With that in mind, here are some scattered thoughts on the Supreme Court Term at its halfway mark.

                Who Will Argue the Same-Sex Marriage Cases?  The most important case of the Term is surely the same-sex marriage case, which will be argued in late April. But it is not just one case; it is four consolidated cases involving challenges to the respective laws of the four different states that comprise the Sixth Circuit. Each side will have 45 minutes to argue the core issue of whether the Fourteenth Amendment requires states to grant same-sex couples the right to marry; and each side will have 30 minutes to argue whether states must recognize same-sex marriages lawfully performed in other states. So who will argue for each side?

                When a case has multiple, separately represented petitioners and/or respondents, the Court does not select who will argue. It leaves that to the parties themselves. You won’t be surprised to learn that lawyers do not always bow out gracefully in these situations. In some instances, the Clerk’s office of the Court has had to flip a coin to settle which counsel will argue.

                One would imagine that in a case of this magnitude, no one would want to resort to a coin-flip. Complicating matters (perhaps) is that not all of the four cases address both issues. The Michigan case presents only the first issue (must a state license same-sex marriages); the Ohio and Tennessee cases present only the second issue (must a state recognize out-of-state same-sex marriages); and only the Kentucky case presents both issues. It will be interesting to see what each side proposes as to how many counsel should argue each case, who those counsel are, and how much time they should be given. 

                Briefing in the Latest Affordable Care Act Case. The other blockbuster case this Term is King v. Burwell. If National Federation of Independent Businesses (NFIB) v. Sebelius (2011) was a frontal assault on the Affordable Care Act, King v. Burwell is a flanking maneuver. The plaintiffs do not contest the law’s constitutionality; they merely ask the Court to interpret a particular provision. But should the plaintiffs succeed, the entire edifice of the Act may crumble.   

                At issue is whether the Act’s tax-credit subsidies are available for insurance purchased on exchanges established by the federal government (as the United States contends), or only on exchanges established by states (as the plaintiffs contend). Thirty-four states opted out of creating their own exchanges, and let HHS create them. The United States argues that if the subsidies are not available for participants in those 34 federal exchanges, millions of healthy individuals will drop their coverage, only less-healthy persons would purchase insurance on the exchanges, and this “adverse selection” would create a “death spiral” in which premiums would dramatically rise and enrollment would dramatically decrease. 

                With states on both sides of the issue, the better part of valor is for me not to venture into the merits. Instead, I thought I would muse on the United States’ merits brief. Briefs filed by the U.S. Solicitor General’s Office (SG) have grey covers, and “grey” is how readers often describe the tone of SG briefs. They are well-written, well-researched, and well-argued, but they usually lack passion. In a word, they are dry. That seemed especially the case in NFIB v. Sebelius. The state plaintiffs in that case began their brief this way: “The individual mandate rests on a claim of federal power that is both unprecedented and unbounded: the power to compel individuals to engage in commerce in order more effectively to regulate commerce. This asserted power does not exist.” The SG’s brief began, “Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Affordable Care Act or Act) to address a crisis in the national health care market” (footnote omitted). To be sure, it’s unfair to judge two briefs by comparing only their opening sentences. But in this instance, the opening sentences reflected something larger. The United States’ brief seemed to lack the vigor, the gusto, of the plaintiffs’ brief. 

                Not so in King v. Burwell. The SG’s brief this time opens with a page-and-a-half introduction that powerfully sets up its theme. Its final paragraph intones, “In this suit, petitioners seek to upend the Act and extinguish the coverage of millions of Americans by contending that tax credits are available only in States that establish Exchanges for themselves. The Act’s text, structure, design, and history refute petitioners’ argument. As Treasury correctly concluded, federal premium tax credits are available through the Exchanges in every State.” The vigorous prose continues in the opening of the Argument, where the SG states (among other things) that “Congress did not adopt such a self-defeating scheme. Nor did it engage the States in the high-stakes game of chicken that petitioners posit.” I have no idea who will win this case or whether the SG office recognized that it needed to up its game. But that’s what it appears to have done.       

                The Rest of the Civil Docket. The Court has 54 additional civil cases on its docket, ranging the usual gamut from takings to free speech to the Employee Retirement Income Security Act (ERISA) to the Foreign Sovereign Immunities Act. Two topics are the most prevalent. One is civil rights. The Court is hearing two Title VII cases, and cases involving alleged racial gerrymandering, the Fair Housing Act, the Americans with Disabilities Act, and the Pregnancy Discrimination Act. The other most prevalent topic, oddly enough, is bankruptcy. The Court is set to decide five bankruptcy cases this Term, more than doubling its usual allotment. Those of us who have to summarize Supreme Court decisions can only hope that things return to normal next Term.

                The Return of Habeas Corpus Summary Reversals. Habeas corpus law changed dramatically when Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996. No longer could federal courts grant habeas relief based on a simple disagreement with a state court’s conclusion that the petitioner’s claim lacked merit. As a general matter, a federal court could issue the writ only if the state court decision denying relief was objectively unreasonable—or, as the Court has sometimes put it, if the state court decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”  

                Many federal court judges, however, have chafed at this restriction on their authority. And so many federal courts have granted habeas relief even when AEDPA seemingly foreclosed it. So what was a state lawyer to do? She could seek Supreme Court review, but the Court does not generally grant certiorari to correct mere errors by lower courts. Thankfully (from the state lawyer perspective), the Court has made an exception in AEDPA cases. The Court has made a habit of granting review and reversing federal court of appeals decisions (most often from the Sixth and Ninth Circuits) that declined to give state courts the deference to which AEDPA entitles them. Sometimes the Court granted plenary review and ruled for the state after full briefing and argument. Often, though, the Court would “summarily reverse”—that is, it would reverse based solely on the cert papers. Last Term, however, for the first time since the 2008 Term, the Court did not summarily reverse a single lower court’s grant of habeas relief.

                Had the Court tired of the practice? Had it concluded that it had sent its message and it was time to move on? Apparently not. In the first six weeks of this Term, the Court summarily reversed two Ninth Circuit decisions granting habeas relief, one in a California case (Lopez v. Smith); the other in a Washington case (Glebe v. Frost). The Court also summarily reversed a Third Circuit decision that had denied a police officer qualified immunity. The Court’s “summary reversal docket” is alive and well — and state attorneys general offices are its primary beneficiary.

                The Return of States Arguing as Amici Curiae. Then-Ohio State Solicitor Jeffrey Sutton did something unusual in the summer of 1996. He filed a motion with the Court asking for leave to participate in oral argument as amici curiae on behalf of a group of states that filed an amicus brief supporting the petitioner in City of Boerne v. Flores. Somewhat surprisingly, given the Court’s practice at that time, the Court granted the motion. State Solicitor Sutton gave a magnificent argument, and a new day rose in the Court. For the next decade, the Court routinely granted state attorneys’ motions for oral argument time as amici curiae when the state attorneys obtained the consent of the party they were supporting (and whose 10 minutes of argument time the states were taking).

                Most good things come to an end, though, and the 2007 Term appeared to mark the end of the Court’s practice of giving states argument time as amici when they have the party’s consent. That Term, the Court denied 7 out of 8 state motions for argument time, including 4 motions filed with the consent of the party. Over the next four Terms, the Court denied all 4 state motions, 3 of which had the party’s consent. The states didn’t even try the next two Terms.

                Ever the optimist, Kansas Solicitor General Stephen McAllister did not let this history deter him. He was counsel of record on an amicus brief joined by 21 states in support of respondents in ONEOK, Inc. v. Learjet, Inc. The amicus brief defended a Ninth Circuit decision holding that the Natural Gas Act did not preempt a state antitrust action brought by natural gas users alleging that natural gas traders manipulated the natural gas market between 2000 and 2002. With the United States arguing as amicus curiae supporting petitioners (the defendants), it made perfect sense for the states to argue as amici curiae supporting respondents (the plaintiffs). And so, with the consent of respondents’ counsel (experienced Supreme Court practitioner Jeffrey Fisher), SG McAllister filed a motion for leave to participate in oral argument as amici curiae for Kansas et al. 

                To our pleasant surprise, the Court granted the motion. We cannot yet know whether this signals a renewed desire by the Court to hear the states’ perspective in cases where they are not parties but have an important interest. But we can hope.

                Justice Sotomayor and the Fourth Amendment. If you’re a state attorney defending a conviction against a Fourth Amendment challenge or a police officer sued under §1983 based on an alleged Fourth Amendment violation, don’t count on getting Justice Sonia Sotomayor’s vote. The latest example is last month’s decision in Heien v. North Carolina. By an 8-1 vote, the Court held that a police officer’s reasonable “mistake of law can give rise to the reasonable suspicion necessary to” justify a traffic stop. The one dissenter was, you guessed it, Justice Sotomayor.

                In this case, an officer stopped Heien’s car for having one brake light that did not work and then found drugs in the car.  On appeal, however, the North Carolina courts interpreted state law as requiring only one working brake light (meaning Heien had not broken the law). The North Carolina Supreme Court nonetheless held that the officer’s stop of his car did not violate the Fourth Amendment because the officer’s misreading of the North Carolina Code was a reasonable one — and the U.S. Supreme Court affirmed. The Court explained that reasonableness is the touchstone of the Fourth Amendment and that, just as searches and seizures may be based on reasonable mistakes of fact, so too can they be based on reasonable mistakes of law. Justice Sotomayor was having none of that, issuing a 10-page dissent that argued, among other things, that the decision “further erode[s] the Fourth Amendment’s protection of civil liberties in a context [traffic stops] where that protection has already been worn down.”

                This is not the first time in recent years that Justice Sotomayor has ruled against the government in a Fourth Amendment case that divided the Court. By my count, starting with the 2011 Term she has ruled against the government in all 9 Fourth Amendment cases that were not unanimous. And that doesn’t count United States v. Jones, where the Court held that federal agents conducted a Fourth Amendment search when they installed a GPS tracking device on the underbody of a car and then tracked the car’s movement for 30 days. Every member of the Court ruled against the government, but 4 Justices did so on a property-rights theory while 4 other Justices did so based on a reasonable-expectation-of-privacy theory. Justice Sotomayor was the ninth vote, agreeing with both theories for why the government should lose.

                Justice Sotomayor may have been a former prosecutor for five years, but don’t count on that experience leading her to rule for the states in Fourth Amendment cases.



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