The Supreme Court’s Remaining Cases

There are many important headlines dominating the news, but there is one in particular you should pay attention to. Last week, the U.S. Supreme Court released several opinions as it begins to close out its 2014-2015 session, but it still has 11 cases to go. These 11 cases include major decisions such as the fate of federal subsidies for health insurance and whether there is a constitutional right to gay marriage.

The Supreme Court will issue the last of its decisions by the end of the month, which means it’s time to pay attention. Unless, of course, the Court takes the unusual step of pushing release days into July.

Daniel Fisher, reporting for Forbes, has listed and described the remaining cases, and listed them in order of general and business importance:

  • King v. Burwell: A direct challenge to a key mechanism in the Affordable Care Act under which the Internal Revenue Service is directed to provide subsidies in the form of tax credits to people who purchase insurance on government-run exchanges. The question is whether that includes exchanges the federal government set up when 30 states unexpectedly refused to set up their own.The law refers to exchanges “established by the State,” under a section referring to state, not federal exchanges, but a parade of legislators and drafters involved in creating the law say they had no intent on limiting subsidies to state exchanges. Justice Anthony Kennedy will cast the deciding vote and may even write the opinion. And while he’s a zealous defender of federalism and states’ rights who would have struck down Obamacare as unconstitutional, at oral arguments in March he offered the administration an escape hatch: If the plaintiffs are right, Congress wrote a law that coerces states into setting up exchanges. Under the doctrine known as constitutional avoidance the Supreme Court should avoid adopting an interpretation that violates the Constitution. We shall see which side of Justice Kennedy’s soul wins this fight, perhaps as soon as Monday.
  • Obergefell v. Hodges: The Supreme Court is being asked to decide whether state laws banning same-sex marriage violate the 14th Amendment of the Constitution. At oral arguments in April, the justices struggled with the implications of a ruling against the states. If marriage isn’t a custom justified by tradition, what is it? If it’s not about procreation and caring for children, why not marriages between siblings? How can states allow gay marriage and still outlaw multi-partner marriages? One possible solution: Outlaw gay-marriage bans under the logic of Romer v. Evans in 1995, which struck down an anti-gay law in Colorado as being motivated by bias.
  • Texas Dept. of Community Affairs v. The Inclusive Communities Project: Conservatives hope the court strikes a blow against disparate impact, a legal tactic that allows the government and private litigants to “prove” discrimination without showing that any individual human actually meant to discriminate. The problem for conservatives is Congress clearly authorized disparate-impact theories under Title VII employment discrimination law, and added exemptions from disparate impact under Title VIII housing law, suggesting it intended the theory to be applicable elsewhere in the act.
  • Michigan v. EPA: The question is whether the Environmental Protection Agency must consider cost when it imposes new pollution regulations, or if it can do what it likes under the so-called Chevron doctrine giving regulators broad leeway to interpret laws as they see fit. The EPA got a grilling at oral arguments in March, but the court has never yet held that it is arbitrary and capricious — the critical words under Chevron — for an agency to refuse to consider cost when it hands down new regulations.
  • Horne v. Dept. of Agriculture: A challenge to a government price support program that requires California farmers to hand over their raisins to a committee that decides whether to sell them or put them in a “reserve pool” to keep prices up. Justice Antonin Scalia likened it to communism at oral arguments in April and most of the justices expressed distaste over the program but it would upend the Depression-era system of farm subsidies and price supports to equate Horne’s loss with a Fifth Amendment taking of property for public use.
  • Kimble v. Marvel Enterprises: Can a patent owner negotiate a royalty agreement that runs longer than the patent license period? The Supreme Court said no back in 1964, but that decision might be in danger with this case.
  • City of Los Angeles v. Patel: Is it an illegal Fourth Amendment search for Los Angeles to require hotel owners to allow the police to examine their guest registers? The bigger question is whether the court should entertain such facial challenges to local ordinances or let cities and states regulate certain industries as they see fit. The Los Angeles law was designed to cut down on crime in short-term occupancy motels.
  • Arizona State Legislature v. Arizona Independent Redistricting Commission: Can a state’s voters seize redistricting authority away from their own legislature?
  • Johnson v. U.S.: Is the Armed Career Criminal Act unconstitutionally vague for penalizing the mere possession of a sawed-off shotgun? Even by a neo-Nazi?
  • Glossip v. Gross: Challenge to Oklahoma’s lethal injection protocol.

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