Issues > Supreme Court Of The United States

SCOTUS - History

John G. Roberts, Jr., Chief Justice of the United States,
was born in Buffalo, New York, January 27, 1955. He marriRoberts - 1.2021ed Jane Marie Sullivan in 1996 and they have two children - Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.

Clarence Thomas, Associate Justice,
was born in the Pinpoint community near Savannah, Georgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from College of the Holy Cross in Thomas - 1.20211971 and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative Assistant to Senator John Danforth, 1979-1981. From 1981–1982 he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission, 1982-1990. From 1990–1991, he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia Lamp on May 30, 1987 and has one child, Jamal Adeen by a previous marriage.

Stephen G. Breyer, Associate Justice,
was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children - Chloe, Nell, and Michael. He received an A.B. from Stanford UniveBreyer - 1.2021rsity, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.

Samuel A. Alito, Jr., Associate Justice,
was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children - Philip and LaurAlito - 1.2021a. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006.

Sonia Sotomayor, Associate Justice,
was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cSotomayor - 1.2021um laude and receiving the university’s highest academic honor. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979–1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. She served as a judge on the United States Court of Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.

Elena Kagan, Associate Justice,
was born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge Abner Mikva Kagan - 1.2021of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She also served for four years in the Clinton Administration, as Associate Counsel to the President and then as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010.

Neil M. Gorsuch, Associate Justice,
was born in Denver, Colorado, August 29, 1967. He and his wife Louise have two daughters. He received a B.A. from Columbia University, a J.D. from Harvard Law School, and a D.Phil. from Gorsuch - 1.2021Oxford University. He served as a law clerk to Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia Circuit, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995–2005, he was in private practice, and from 2005–2006 he was Principal Deputy Associate Attorney General at the U.S. Department of Justice. He was appointed to the United States Court of Appeals for the Tenth Circuit in 2006. He served on the Standing Committee on Rules for Practice and Procedure of the U.S. Judicial Conference, and as chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on April 10, 2017.

Brett M. Kavanaugh, Associate Justice,
was born in Washington, D.C., on February 12, 1965. He married Ashley Estes in 2004, and they have two daughters - Margaret and Liza. He received a B.A. from Yale College in 1987 and a J.D. from Yale Law School in 1990. He served as a law clerk Associate Justice Bret M. Kavanaugh; photograph by Fred Schilling, 2018.for Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit from 1990-1991, for Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit from 1991-1992, and for Justice Anthony M. Kennedy of the U.S. Supreme Court during the 1993 Term. In 1992-1993, he was an attorney in the Office of the Solicitor General of the United States. From 1994 to 1997 and for a period in 1998, he was Associate Counsel in the Office of Independent Counsel. He was a partner at a Washington, D.C., law firm from 1997 to 1998 and again from 1999 to 2001. From 2001 to 2003, he was Associate Counsel and then Senior Associate Counsel to President George W. Bush. From 2003 to 2006, he was Assistant to the President and Staff Secretary for President Bush. He was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 2006. President Donald J. Trump nominated him as an Associate Justice of the Supreme Court, and he took his seat on October 6, 2018.

Amy Coney Barrett, Associate Justice,
was born in New Orleans, Louisiana, on January 28, 1972. She married Jesse M. Barrett in 1999, and they have seven children - Emma, Vivian, Tess, John Peter, Liam, Juliet, and Benjamin. She received a B.A. from Rhodes College in 1994 and a J.D. from Notre Dame Law School in 1997. She served as a law clerk for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit from 1997 to 1998, and for Justice Antonin Scalia of the Supreme Court of the United States during the 1998 Term. After two years in private law practice in Washington, D.C., she became a law professor, joining the faculty of Notre Dame Law School in 2002. She was appointed a Judge of the United States Court of Appeals for the Seventh Circuit in 2017. President Donald J. Trump nominated her as an Associate Justice of the Supreme Court, and she took her seat on October 27, 2020.

 

What type of cases heard by the SCOTUS?

Birth, death, marriage, life, what it means to be a person, to have equal rights, to be fair—this is the stuff the Supreme Court of the United States (SCOTUS) examines every year, making decisions that become the law of the land.

“The justices of the Supreme Court establish—by interpreting laws and a constitution—a set of laws for the country. Without that we have no laws,” says Nina Totenberg, legal affairs correspondent for National Public Radio.

Thousands of cases are sent to the Court every year. If four of the nine justices agree a case should be heard, the Court asks the federal courts to send up all the information about the case so they can review it (known as granting a writ of certiorari). The Court chooses cases with national significance: Do kids have the right to pray in school? Should workers pay fees to labor unions if they don’t want to be a member? Did President Obama exceed his powers in trying to protect illegal immigrants from deportation? They also take cases when the lower courts can’t agree how to interpret the law involved; SCOTUS’ decision then becomes the precedent that every court in the U.S. has to follow.


DID YOU KNOW?

  • The Supreme Court building is one of the only federal buildings ever to come in under budget. Congress authorized $9,740,000 for its construction; the building was completed and furnished for $94,000 less. The remainder was returned to the Treasury.
  • 10,000 - Approximate number of cases that appeal every year to the Supreme Court
  • 75–80 - Number of cases the Court agrees to hear
  • $249,300 - Yearly salary of the justices (the chief makes $11,400 more)
  • 30 - Maximum number of minutes an attorney has to argue a case
  • 100–150 - Number of first-come, first-served public seats in the courtroom
  • 0 - TV cameras in the courtroom. Proceedings are never televised for security reasons and to discourage lawyers from playing to the camera or being intimidated or influenced by the presence of the media.

 

Test your knowledge about the SCOTUS - Here!

SCOTUS 'Shadow Docket' - What is it and why is it important?

Congress Finally Scrutinizes One of SCOTUS’s
Most Disturbing Practices

There’s one court reform Democrats and Republicans
might actually agree on.
By Mark Joseph Stern | February 

Over the past few years, the Supreme Court has dramatically altered the way it decides most cases—without acknowledging or justifying this radical shift. More and more often, the justices forgo the usual appeals procedure in favor of rushed decision-making behind closed doors in what’s known as “the shadow docket.” They issue late-night opinions on the merits of a case without hearing arguments or receiving full briefing, and often refuse to reveal who authored the opinion, or even how each justice voted. The public is then left to guess why or how the law has changed and what reasoning the court has embraced. These emergency orders are supposed to be a rare exception; today, however, the court regularly uses them to make law in hugely controversial cases, including disputes over the border wall, COVID-19 restrictions, and executions. On Thursday, the House Judiciary Committee held a hearing to decide what, if anything, Congress can do to address a problem that’s spiraling out of control.

The House’s interest in the shadow docket is an encouraging sign that at least some members of Congress want to exercise their own constitutional powers to help fix the Supreme Court. It’s easy to forget that the democratic branches of government have real power over the federal judiciary. Congress can force SCOTUS to hear certain cases and prevent it from hearing others; it created the lower courts and gave them authority to decide a wide array of controversies, a privilege it can also strip away. In 1996, for instance, Congress revoked federal courts’ power to hear many lawsuits filed by state prisoners. Back then, lawmakers decided that courts were granting relief to too many people behind bars, so it took away the tools judges needed to safeguard due process. Progressives hate that law, and rightly so, but it’s a reminder that Congress can rein in a judiciary that it perceives to be out of control. Will Democrats take advantage of that power now that they hold Congress and the White House?

After Thursday’s two-hour hearing, it appears the short answer is: maybe. Members of both parties asked good, sometimes surprisingly sharp questions of the four witnesses: Steve Vladeck, a professor at the University of Texas School of Law (and Slate contributor); Amir Ali of the MacArthur Justice Center; Loren AliKhan, the solicitor general of the District of Columbia; and Michael Morley of Florida State University College of Law. Vladeck, probably the foremost expert on the shadow docket, laid out the issue succinctly. Shadow docket decisions are rushed and regularly unsigned. They disrupt the normal appeals process, allowing favored plaintiffs to leapfrog over lower courts to claim a quick victory at SCOTUS. They divide the court along partisan lines more often than normal decisions. They routinely give lower courts little to no guidance, forcing judges to guess what the majority is thinking. All of these features undermine public confidence in the court, which, in turn, threatens its legitimacy.

Between 2017 and 2020, the number of divided shadow docket decisions increased roughly tenfold. There are a number of reasons why: The Trump administration aggressively lobbied the Supreme Court to issue emergency orders approving some executive actions, and got what it wanted with alarming frequency. For example, SCOTUS never issued a decision upholding Trump’s raid of federal funds to build his border wall without authorization, or affirming the legality of multiple restrictions on asylum. Yet Trump was able to build (part of) his wall and impose draconian limits on asylum-seekers anyway, because SCOTUS authorized these policies through the shadow docket (sometimes by 5–4 votes). The Trump administration also urged SCOTUS to lift stays of execution during its eleventh-hour killing spree, and the conservative majority happily obliged. Republican activists and office holders joined in before the 2020 election, racing to SCOTUS to clear away decisions that expanded voting rights in their states.

But there are other factors within the court driving the explosion of the shadow docket—most importantly, the abrupt rightward shift of the majority since 2018. As soon as Justice Brett Kavanaugh replaced the much more moderate Justice Anthony Kennedy that year, the court began to issue more divisive shadow docket decisions upholding Trump policies and allowing executions. Kennedy had a moderating influence on the court, forcing the other conservatives to compromise or slow-walk their goals. When Kavanaugh took his seat, he joined his fellow conservatives in ramming through emergency orders over the dissents of the liberal justices. Justice Amy Coney Barrett may accelerate that trend: In her brief time on the court, she has consistently joined the conservatives in issuing brash shadow docket orders. There is one notable exception—her decision to block an execution on religious liberty grounds—but that decision illustrates another flaw: We do not know who cast the fifth vote to halt the execution, because the justices are not obligated to note their votes on the shadow docket.

While every Democrat who participated in Thursday’s hearing seemed to agree that this shift poses a real problem, not all were certain that they could legislate a solution. Rep. Greg Stanton of Arizona came out swinging hard for reform, condemning SCOTUS over issuing “decisions with sweeping implications” in “the dark,” using a “rationale hidden from the public.” How, he wondered, could Congress compel the justices to at least “record its vote” instead of “going unchecked”? Rep. Ted Lieu of California asked if Congress could force justices to “put their names on opinions.” Vladeck questioned whether such a measure would pass constitutional muster. But, remarkably, Republican Rep. Louie Gohmert of Texas endorsed the idea. “I am a fan of judges and justices making clear who is making decisions,” the lawmaker said. “I think Congress does have authority to require such a thing.” (Gohmert’s fellow Republicans spent much of the hearing asking Morley about the rise of nationwide injunctions under Trump, a phenomenon that does not actually explain the rise of the shadow docket.)

Rep. Zoe Lofgren sounded less sure than her fellow Democrats about the significance of the problem at hand. The phrase “shadow docket,” she warned, “probably is unnecessarily pejorative.” She vaguely endorsed “thoughtful deliberation” about putting “some guardrails on this” by requiring “more transparency and a more deliberative process.” These “guardrails,” she clarified, are not an effort to weaken SCOTUS, but to “protect the reputation of the court.” The generational divide between Democrats on the topic of court reform was strikingly clear when, a few minutes later, freshman Rep. Mondaire Jones attacked the “rogue” Supreme Court for its “partisan” and “highly secretive” use of the shadow docket to greenlight voter suppression and approve stringent new limits on immigration under Trump.

Jones, who supports expanding the Supreme Court, is almost certainly to the left of Democrats like Lofgren when it comes to court reform. But it’s notable that no Republicans tried to defend the shadow docket as a valid way of doing day-to-day business; no one, it seems, wants to argue that unsigned opinions issued in the wee hours of the morning are a good way to make law. Yet hard-line responses, like forcing the court to publicize how every justice voted, are still a long way off.

For now, the most likely reforms are a series of nudges Vladeck has proposed. Some are minor, like shortening the timeline for appeals and requiring the Supreme Court to hear certain cases that Congress deems important. Others are more direct. SCOTUS is already supposed to withhold emergency relief unless the litigant has demonstrated that they will suffer irreparable harm without a stay, and to balance the interests of the parties and the public. In the past few years, it has simply abandoned these rules. Congress can order the court to restore this standard, requiring the justices to stop treating shadow docket decisions like normal cases and, hopefully, stem the flow of emergency orders.

In truth, though, the House Judiciary Committee may have already taken the first step toward a solution by holding a hearing. The more that lawmakers scrutinize the shadow docket, the less attractive it becomes for the justices—especially those, like Chief Justice John Roberts, who are conscious of the court’s public image. Thursday’s hearing proved that Democrats are serious about exploring court reform. The justices are now on notice that they cannot keep doing their work under cover of darkness much longer.

The ACA - Back in court...again

https://www.healthcare.gov/

 

At a Supreme Court argument on Tuesday,
Chief Justice Roberts and Justice Kavanaugh
suggested that striking down one provision
would not doom the balance of the law.

November 10, 2020 | Updated November 13, 2020

WASHINGTON — At least five Supreme Court justices, including two members of its conservative majority, indicated on Tuesday that they would reject attempts by Republicans and the Trump administration to kill the Affordable Care Act.

It was not clear whether the court would strike down a provision of the act that initially required most Americans to obtain insurance or pay a penalty, a requirement that was rendered toothless in 2017 after Congress zeroed out the penalty. But the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, appeared likely to survive its latest encounter with the court.

Both Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said striking down the so-called individual mandate did not require the rest of the law to be struck down as well.

“Congress left the rest of the law intact when it lowered the penalty to zero,” Chief Justice Roberts said.

Justice Kavanaugh made a similar point. “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place — the provisions regarding pre-existing conditions and the rest,” he said.

The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — also indicated their support for the law. That suggested there were at least five votes to uphold almost all of it.

Three members of the court’s conservative majority, Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, seemed poised to vote to strike down the law. The court’s newest member, Justice Amy Coney Barrett, was harder to read, though she has been publicly critical of earlier rulings sustaining key provisions of the law.

Striking down the Affordable Care Act would expand the ranks of the uninsured in the United States by about 21.1 million people — a nearly 70 percent increase — according to new estimates from the Urban Institute.

The biggest loss of coverage would be among low-income adults who became eligible for Medicaid under the law after all but a dozen states expanded the program to include them. But millions of Americans would also lose private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

In the decade since the enactment of the health care law, Republicans have worked hard to destroy it, and President Trump has repeatedly criticized it. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law has gained in popularity and been woven into the fabric of the health care system in ways big and small.

President-elect Joseph R. Biden Jr. vowed Tuesday to preserve and expand the law when he takes office on Jan. 20, and he assailed the arguments made in court by lawyers for Republican officials and the Trump administration.

Mr. Biden lashed out at what he called “far-right ideologues” in the administration who had asked the court to strike down the law, saying the impact of such a move for millions of Americans would be severe.

Campaigning for president, Mr. Biden said he wanted to strengthen the law by offering a public option that allows people to receive coverage the way Medicare enrollees do, through a system of government-run insurance. People who would prefer to stay on private insurance would be able to do so.

The new case, California v. Texas, No. 19-840, was brought by Republican officials who said the mandate requiring insurance became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain health insurance because it could no longer be justified as a tax.

They went on to argue that the mandate was a crucial feature of the law, and so the entire law should be thrown out.

The challenge has largely succeeded in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In December, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

Officials in states led by Democrats instead asked the Supreme Court to hear the case, saying the justices should act to resolve the uncertainty created by the appeals court’s ruling.

The law includes popular provisions on guaranteed coverage for pre-existing medical conditions, emergency care, prescription drugs and maternity care. A lawyer for Texas and other Republican-led states, supported by a lawyer for the Trump administration, argued that all of those provisions should be ended as a consequence of the 2017 change to the individual mandate.

Those arguments were largely based on a decision in an earlier Supreme Court case, in 2012, when the court upheld the law’s requirement that most Americans obtain insurance or pay a penalty. The vote was 5 to 4, with Chief Justice Roberts writing the controlling opinion, which said the mandate was authorized by Congress’s power to assess taxes. He was joined by what was at the time the court’s four-member liberal wing.

Since the mandate no longer raises revenue, said Kyle D. Hawkins, Texas’s solicitor general, it cannot be justified as a tax and was therefore unconstitutional.

In assessing the narrow question of the constitutionality of the revised mandate, the justices discussed hypothetical laws that merely urged people to do things without penalizing them if they disobeyed.

Michael J. Mongan, California’s solicitor general, said that without penalties for noncompliance, such laws present no constitutional problems. As for the revised mandate, he said, “it doesn’t require anybody to do anything.”

At Justice Barrett’s confirmation hearings last month, Democratic senators questioned her closely about critical statements she had made about the two major Supreme Court decisions sustaining the law. At Tuesday’s argument, she questioned the constitutionality of the mandate.

“Why can’t we say that when Congress zeroed out the tax, it was no longer a tax because it generated no revenue and, therefore, it could no longer be justified as a taxing power?” she asked.

But Justice Barrett did not tip her hand on the more important issue of whether the rest of the law should survive if the mandate is struck down.

Justice Kagan noted what she said was a curious features of the challengers’ argument. In 2012, she said, the Supreme Court had ruled that the mandate backed by a penalty was not an unconstitutional command. In 2017, she said, the law became less coercive.

“How does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” she asked.

Chief Justice Roberts noted that the mandate had in the earlier case been said to be “the key to the whole act.” Justice Thomas said the court had been told that “this provision was the heart and soul of the Affordable Care Act.”

Indeed, when the earlier challenge to the health care law was argued in 2012, the Obama administration did say that the mandate could not be severed from two related provisions, one prohibiting insurers from turning away applicants and the other barring them from taking account of pre-existing conditions.

Donald B. Verrilli Jr., who successfully defended the law in 2012 as solicitor general in the Obama administration and appeared as a lawyer for the House of Representatives on Tuesday, said experience had shown that the practical importance of the mandate had been overstated.

The health care law, he said, included both carrots, like subsidies, and the stick that was the mandate. “It’s turned out that the carrots worked without the stick,” he said.

The elimination of the law’s financial penalty for going without health insurance has indeed had little effect on how many people signed up for coverage through the law’s marketplaces. Enrollment in the marketplaces has decreased slightly since 2017, but it has not shown any signs of a “death spiral,” when only sick people buy coverage and costs skyrockets as a result.

Whether the mandate was now unconstitutional or not, Mr. Verrilli said, the balance of the law must stand. It was far-fetched, he said, that Congress had intended to doom the law by adjusting a monetary penalty as opposed to repealing it outright.

“There were efforts to repeal the entire A.C.A.,” Mr. Verrilli said, “Those efforts failed.”

Chief Justice Roberts said that adjusting the penalty while leaving the rest of law in place was telling. “It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down,” the chief justice told Mr. Hawkins, “when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”

Justice Kavanaugh also said that the whole law was not tied to the fate of the mandate. “I tend to agree with you,” he told Mr. Verrilli, “that it’s a very straightforward case for severability under our precedents.”

The law’s defenders hoped that the Republican challengers could not run the table on three separate legal arguments they would need to win: that they have suffered the sort of injury that gives them standing to sue; that the zeroing out of the tax penalty made the individual mandate unconstitutional; and that the rest of the law cannot stand without the individual mandate.

Judging by the questioning on Tuesday, in an argument that lasted for two hours, the law’s defenders seemed poised to prevail on at least the third issue. A ruling is expected by June.

 

The Texas Challenge:
The Supreme Court Will Decide
the Fate of the Affordable Care Act — Again

Timothy S. Jost - Emeritus Professor,
Washington and Lee University School of Law | March 3, 2020


On March 2, 2020, the U.S. Supreme Court accepted an appeal by 21 state attorneys general (AGs) led by California, in California v. Texas (formerly Texas v. United States), to decide whether the Affordable Care Act (ACA) should remain in place. The Court also accepted a cross-appeal by Texas and other states opposing the ACA asking that the entire law be invalidated. The Court will issue its decision either in the fall of 2020 or, more likely, in 2021.

A lawsuit challenging the law was originally brought by Texas, 19 other states, and two individuals in early 2018. They claimed that the 2017 Tax Cuts and Jobs Act had rendered the ACA’s individual mandate unconstitutional since the mandate could no longer be justified as a tax after the Act reduced the mandate’s penalty to zero. (The Supreme Court had upheld the mandate as a tax only in 2012.) The states further argued that the mandate was “essential” to the rest of the ACA, and the entire ACA was therefore invalid if the mandate was unconstitutional. Judge O’Connor, a Texas federal court judge, accepted these arguments in full in December 2018.

The U.S. Department of Justice (DOJ) refused to defend the ACA, which was defended instead by a coalition of Democratic AGs led by California and by the U.S. House of Representatives. California appealed the decision to the Fifth Circuit Court of Appeals, which in late 2019 agreed with Judge O’Connor that the mandate is now unconstitutional, but sent the case back down to him to reconsider how much of the ACA should be invalidated along with it.

The Fifth Circuit instructed Judge O’Connor to “explain with more precision what provisions of the post-2017 ACA are indeed inseverable from the individual mandate.” It also asked him to consider an argument made by the DOJ that the court should block enforcement “only of those provisions that injure the plaintiffs” or to declare “the Act unconstitutional only as to the plaintiff states and the two individual plaintiffs.” That is, they argued that the court should only block the enforcement of certain provisions of the ACA and only to the plaintiffs in the case.

THE COURT WILL RESOLVE THE UNCERTAINTY SURROUNDING THE ACA . . .

California and the House argued to the Supreme Court that the Fifth Circuit should have decided the question of “severability,” which is essentially a question of law, instead of sending it back to Judge O’Connor. They argued that the Supreme Court should find that the mandate is constitutional but, failing that, that the remainder of the ACA remains valid without it. The Texas group countered by saying that the entire ACA cannot be separated from the mandate and must fall with it.

The grant of review means that at least four of the nine justices believed the Supreme Court should resolve this dispute. It will take at least five votes to decide the issues raised by the case and there is no way of knowing how many justices voted to accept the case or how they will vote in the final decision. It is likely, however, that at least the four Democratic appointees on the Court supported resolving the case sooner rather than later.

The decision to take the case now was eminently sensible. Denying review would have sent the case back down to the district court where it could have lingered for many months while the health care coverage of 20 million Americans hung in the balance. The Supreme Court would have had to decide the case eventually, but probably not until 2022 or 2023.

Several health care stakeholders filed friend of the court briefs urging the Court to take the case now. America’s Health Insurance Plans contended: “In remanding rather than resolving the severability question, the decision below casts a long shadow of uncertainty over ACA-based investments and denies health insurance providers, states, individuals, and other stakeholders of much needed clarity.” AARP and other senior advocacy groups noted: “the [Fifth Circuit] decision plunges millions of Americans into an abyss of prolonged uncertainty because they do not know if they will lose access to life-sustaining health care coverage and consumer protections.” The nation’s five hospital associations asserted that the uncertainty attendant to the Court not deciding the case would, “have serious, perhaps irreparable, consequences for hospitals and the patients they serve.”

. . . BUT NOT SOON

The case will still not be resolved any time soon. The Court had earlier denied a request from California and the House that the case be briefed on an expedited basis, which would have allowed it to be decided this term. Under Supreme Court rules, final briefs in the case should be filed by mid-June at the earliest, too late for the case to be heard by the Court’s last day of oral argument this year, April 29. In the meantime, the Court has before it two other severability cases, which involve other statutes. The Court’s decision in those cases may affect this one.

Most likely the case will be argued in the fall. The first day for oral arguments is October 5. This past year, the earliest decision was released on December 10, but the Court usually announces controversial decisions at the end of the term — which would mean June 2021. In any event, the case will be pending before the Court during this year’s election, and will no doubt be an issue in the campaigns.

This month the Affordable Care Act is 10 years old. It has been under threat from litigation from the moment it was signed. The Texas case is the most far-fetched challenge to the law yet. It remains to be seen whether the Supreme Court will finally uphold the ACA, consolidating all the gains that our health care system has made under the law.


Liberty University vs Lew - Case #13-306
 
Petition Denied - 12.02.13

Supreme Court dismisses challenge to Obamacare mandate
by Joan McCarter

12.02.13 - The last, great hope of Republicans to see Obamacare killed outright is officially dead. They haven't been able to repeal it. They ran a presidential campaign on ending it, and were overwhelmingly rejected. The Supreme Court decided not to overturn the entire law once already, and has now dismissed the last big case challenging the underpinnings of the law.

The court rejected a petition filed by Liberty University, a Christian college in Virginia, which had raised various objections to the law, including to the key provision that requires individuals to obtain health insurance. [...]

By rejecting the Liberty University case, the justices left intact a 4th U.S. Circuit Court of Appeals of a May 2013 decision that dismissed the claims made by the college and two individuals, Michele Waddell and Joanne Merrill.

They're not going to kill it outright. They're officially out of opportunities. They're out of time legislatively, since they're going on the long recess on December 13. They'll have to change strategies now, because after January 1 repeal means taking people's insurance away, something even most Republicans will recognize isn't politically smart.  So now it's going to be more efforts to chip away, to refuse to allow any fixes, to create as many obstacles as possible at the state level for implementation. All of which they will do, because it's now their entire reason for being.

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6.28.12 —
The United States Supreme Court upheld in its entirety President Obama's health care law, The Affordable Care Act, today.  In a 5-4 decision with Chief Justice John Roberts, a conservative appointed by President George W. Bush, providing the swing vote.  This is a major victory for President Obama as Republican Senate Minority Leader Mitch McConnell vows to double Republican efforts to repeal the entire law.

What the Supreme Court's ruling means for your health care.

Today, the Supreme Court issued a historic ruling: They upheld the Affordable Care Act and ensured that millions of American families will have access to health care and protection from the worst abuses of the insurance industry.

Lots of people have questions about the Affordable Care Act, the Supreme Court's decision, and their health care coverage. We've pulled together the most useful information — including President Obama's remarks after the announcement — at WhiteHouse.gov.

Watch the video and get the facts here.

Read the President's full remarks here.

Health Reform providing security to working families

  • Working families are protected from losing their health care or being forced into bankruptcy when a family member gets sick or is in an accident. Families have the security of knowing their health insurance will be there when they need it most.
  • Insurance companies are now required to justify rate hikes, and consumers have the ability to appeal to an independent third party when insurance companies refuse to cover services or care.
  • Starting in 2014, all Americans will have access to affordable health insurance no matter their circumstances — whether they change jobs, lose their job, decide to start a business, or retire early. Purchasing private insurance in the new state-based health insurance exchanges could save middle-class families who can’t get employer-provided insurance thousands of dollars.
  • Once fully implemented, the law will slow health care premium growth rates, adding another $2,000 to family savings by 2019.
  • The Affordable Care Act is expected to reduce the deficit by $127 billion from 2012 to 2021.

Women and Health Reform

20.4 million women with private insurance now can soon get free preventive care. That means they can get life-saving cancer screenings like mammograms and can have their contraception covered without paying a co-pay or deductible. Women are living healthier lives while saving money at the same time.  The Affordable Care Act will also prevent insurance companies from discriminating against women so that being a woman is no longer considered a pre-existing condition.

Young People and Health Reform

Young adults are now eligible to stay on their parents’ health insurance plans as they enter the workforce, until they turn 26. Since the health care law passed, 2.5 million young adults — traditionally the group least likely to be insured — gained insurance because of The Affordable Care Act.

Small Business and Health Reform

Under The Affordable Care Act, help for small businesses — including the new insurance exchanges — will reduce small business health care spending by nearly 9 percent, according to independent estimates.  Millions of small businesses are now eligible for a tax credit to help pay for their health care premiums. The credit will increase to cover 50 percent of premium costs in 2014.

Ending discrimination for pre-existing conditions

The Pre-Existing Condition Insurance Plan (PCIP) provides insurance to people of all ages with health conditions who have been uninsured for six months, helping those with cancer or other serious conditions to get the treatment they need.  Before The Affordable Care Act, insurance companies could deny coverage to children with medical conditions. Thanks to The Affordable Care Act, as many as 17 million children with pre-existing conditions can no longer be denied health insurance.

Ending lifetime limits

Before The Affordable Care Act, more than half of all private insurance plans included a lifetime limit on coverage — and nearly 20,000 people hit a lifetime cap each year. The Affordable Care Act banned these caps, and those who had already hit a lifetime limit will be eligible for unlimited coverage.

Strengthening Medicare

More than 47 million Medicare beneficiaries now have access to free health services — including an annual wellness visit, mammograms, and other health screenings — to help detect and treat medical conditions early.  Thanks to The Affordable Care Act, nearly 3.6 million seniors who fell into the Medicare “doughnut hole” during 2011 saved an average of $604 on prescription drugs.  In 2011, The Affordable Care Act saved women who fell into the 'doughnut hole' on Medicare more than $1.2 billion on the cost of prescription drugs.

Top 10 benefits received from
The Affordable Care Act

  1. Before health reform, insurance companies used a practice called 'gender rating' which means women could be charged more than men for the exact same insurance policy.  By 2014, The Affordable Care Act will end 'gender rating'.
  2. Insurance companies now cover all FDA approved contraception without extra co-pays.
  3. Insurance companies now cover mammograms and pap smears without extra co-pays.  In the future, well-woman visits and domestic violence screenings will be included.
  4. Insurance companies now cover maternity care.
  5. Insurance companies now cover breastfeeding equipment and support.
  6. Children with pre-existing conditions are now protected.  Soon insurance companies will not be able to deny women coverage for 'pre-existing conditions' such as pregnancy, having had a C-section or being a survivor of domestic violence.  
  7. Insurance exchanges will help consumers compare insurance policies.  Women make 80% of the health care decisions in the United States.
  8. New tax credits are now available to help small businesses provide coverage to all their employees.  Women are more likely than men to work for small businesses that don't offer health insurance.
  9. Young adults now benefit from a new rule that allows young adults to remain on their parents' health insurance policy as a dependent until age 26.  Young women under the age of 26 are more likely to be uninsured than women in any other age group.
  10. Seniors now benefit from a provision that is starting to close the Medicare Part D 'doughnut hole' gap which requires Seniors to spend a considerable amount out-of-pocket for prescription drugs.  The 'doughnut hole' gap will be completely closed by 2020.