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Obergefell v. Hodges

June 27, 2015

In Obergefell v. Hodges, No. 14-556, the U.S. Supreme Court held that

… the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. … and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.

The Court divided 5-4 along the

Jim Obergefell, Obergefell v. Hodges, same sex marriage, U.S. Supreme Court

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Supreme Court Update

June 25, 2015

Mark Rubin

Two decisions today. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, No. 13-137, the Court upheld the right to bring disparate impact claims involving housing discrimination. MRW was wrong.

And in today’s Big Dog case, King v. Burwell, No. 14-114, the Affordable Care Act/subsidies case, subsidies, and the ACA structure, survive, 6-3. MRW called it 6-3, although we had Justice Scalia in the majority. Roll up that net, fellas, for I’m not falling off the limb on the tree today.

Presently, MRW is 3-2 on predictions, with an asterick for the missed Scalia call.

More later

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Supreme Court Update

June 22, 2015

Mark Rubin

Here’s the Supreme Court update for Monday, June 22. Four opinions issued. First up was Kimble v. Marvel Enterprises, No. 13-720, which is the Spiderman patent case. (Details from MRW are at Spiderman Goes to the Supreme Court.) We called this one 6-3 or 7-2 for Marvel, hoping for a ruling in favor of friends Steve Kimble and Bob Grabb. Unfortunately, Marvel prevailed 6-3.

The other three cases the Court decided were: City of Los Angeles v. Patel, No. 13-1175; Kingsley v. Hendrickson, No. 14-6368; and Horne v. Department of Agriculture, No. 14-275. In Patel the Court affirmed a Ninth Circuit decision, finding that a statute which required hoteliers to provide a registry without

U.S. Supreme Court

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U.S. Supreme Court – What’s Left?

June 15, 2015

Mark Rubin

On June 15 the U.S. Supreme Court issued decisions in Baker Botts L.L.P. v. ASARCO, No. 14-103, Reyes Mata v. Lynch, No. 14-185, and Kerry v. Din, No. 13-1402. The cases dealt, respectively, with: (1) a law firm’s right to get fees from a reorganized debtor for work associated with defending a fee application (No Go); (2) a procedural issue in immigration law; and (3) a woman’s liberty interest in having her “civil servant in the Taliban regime” Afghani husband get priority immigrant status. “No go” on the last one, too, and Justice Scalia—writing for himself, the Chief Justice, and Justice Thomas—beat up on the dissent. (Justices Kennedy and Alito concurred, but did not agree with Justice

King v. Burwell, Obergefell v. Hodges, U.S. Supreme Court

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From the Court: Zivotofsky v. Kerry

June 8, 2015

Mark Rubin

The U.S. Supreme Court issued its decision today in Zivotofsky v. Kerry, No. 13-628. I mentioned this case in Welcome Back, Justices! last October. It is one of the big deal cases of the term, and it’s likely that the politics will eclipse the legal principles.

The decision was 6-3. Justice Kennedy wrote the majority opinion. The Chief Justice and Justices Alito and Scalia dissented, and Justice Thomas concurring in the judgment but dissenting in part. The opinions total 93 pages, so you’re getting a “down and dirty” for today.

Court opinions usually have a syllabus. Here, the syllabus provides a good summary of the facts and the legal issue:

Petitioner Zivotofsky was born to United States citizens living

Zivotofsky v. Kerry

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Yates v. U.S. Update; Spiderman, Too!

March 30, 2015

Mark Rubin

The Fish Case aka Grouper-Gate aka Yates v. U.S., No. 13-7451, appeared here on December 1, 2014. The case posed for the Supreme Court this question: Whether Mr. Yates was deprived of fair notice that the destruction of fish violated provisions in the Sarbanes-Oxley Act, which makes criminal “knowingly alter[ing], destroy[ing], mutilat[ing], conceal[ing], cover[ing] up, falsif[ying], or mak[ing] a false entry in any record, document, or tangible object,” intending to impede or obstruct an investigation.

The case involved claims by the government that commercial fisherman John Yates destroyed under-sized fish to avoid prosecution. (I’m not going to dwell on the facts, as I heard from fisherwife after the first post, and it was clear after reading her

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Writing Matters … Mostly!

March 5, 2015

Mark Rubin

When I was a young man I recall some discussion—today it would be Internet buzz—about how writing didn’t matter anymore. We all talked to one another, and that made writing unnecessary.

Wrong! Writing matters greatly, almost always. Very recently, I got a decision in a case. My clients were right on both the facts and the law; however, the case was complicated. I filed a motion for summary judgment. It’s a request to the court, asking the court to accept the other side’s version of the facts and still rule in your side’s favor, on account of the law being on your side.

My clients prevailed. The right decision, although I was concerned until I got the ruling, as I’m

Chief Justice John Roberts, Justice Anthony Kennedy, Justice Antonin Scalia, Obamacare, U.S. Supreme Court

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King v. Burwell; Can’t Quite Let It Go!

February 20, 2015

Mark Rubin

The Supreme Court will hear from counsel for the parties in King v. Burwell on March 4, a week from Wednesday. I have some thoughts. I want to start by sharing the issue, as the Court formulated it:

Whether the Internal Revenue Service may permissibly promulgate regulations to extend tax-credit subsidies to coverage purchased through exchanges established by the federal government under Section 1321 of the Patient Protection and Affordable Care Act.

Note what issues are not before the Court: Obamacare is bad; Obamacare costs me money; But freedom; etc. If process matters, the narrow question before the Court involves the right of the IRS, as the agency charged with administering the subsidies, to interpret the statute as it

King v. Burwell, Obamacare, Patient Protection and Affordable Care Act

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Rehnquist and O’Connor – Arizona Justices

February 9, 2015

Mark Rubin

Last Friday I attended part of The Rehnquist Court: Ten Years Later, presented jointly by the William H. Rehnquist Center on the Constitutional Structures of Government and the James E. Rogers College of Law at the University of Arizona. I spent a very interesting morning learning about federalism—the relationship between state governments and the federal government—and the role of the Chief Justice of the United States. (No, nothing left out there; the office-holder—all 17, to date, men—is the Chief Justice of the country, not the Court.) I missed afternoon sessions on criminal justice and the First Amendment.

I mention my day because I don’t know how many people appreciate the value associated with having two justices—one the Chief

Chief Justice William Rehnquist, James E. Roger College of Law, Justice Sandra Day O'Connor, The Rehnquist Center, University of Arizona

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Disparate Impact, and Unhappy People

January 26, 2015

Mark Rubin

Disparate treatment v. disparate impact is today’s subject. The concepts arise in discrimination laws passed mostly in the 1960s. The Society for Human Resource Management (SHRM) offers a detailed explanation here; in simple terms, disparate treatment involves intentional action directed at someone on account of their status—race, color, religion, gender, etc. Contrariwise, disparate impact results from seemingly neutral activities which adversely affect people on account of their status.

Increasingly, disparate treatment claims are being undermined in courts. On January 21 the U.S. Supreme Court heard oral argument in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., No. 13-1371. Amy Howe from SCOTUSblog provides an excellent review of the case, within the context of

disparate impact

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