Obamacare on Appeal: Statutory Construction of This Politically Charged Question Will Inevitably Be Called Judicial Activism
In June, I wrote here that law professors should use the Supreme Court’s reversal of a Fourth Circuit opinion (CTS Corp. v. Waldburger) as their case study to teach the complexity of statutory construction. But I fear that a subsequent pair of conflicting, high-profile opinions in the D.C. Circuit and Fourth Circuit construing the Patient Protection and Affordable Care Act (“ACA”) is what many law professors will be using to teach statutory construction. Halbig v. Burwell, No. 14-5018 (D.C. Cir. July 22, 2014), rehearing en banc granted (Sep. 4, 2014), and King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014), are attractive as important cases that present a pure question of statutory construction, but using them to teach statutory construction runs the risk that students will see statutory construction as a mere euphemism for partisan “judicial activism.” The opinions are best used to instead explore the precarious role of appellate judges in resolving politically charged controversies.
With autumn right around the corner, the air in the Old Line State may be taking on a bit of a chill, but, with a new slate of cert grants, the Court of Appeals’ calendar for the year is just getting’ warmed up. Highlights this go-around include cases addressing the legality of sentences below binding plea agreements; the application of the “woodlands exception” in adverse-possession matters; the authentication standard for social-media chats; whether the value of stolen goods is an element of theft; and, as the ripples of federal Confrontation Clause jurisprudence continue to undulate through state courts, whether that constitutional provision is violated by a DNA expert’s verification of a peer’s findings. Check out this month’s winners after the jump.
David Lat of Above the Law was kind enough to send me an advance copy of his novel, Supreme Ambitions. I face a difficult task at the outset: Judge Richard Kopf’s review at Hercules and the Umpire covered most of the bases already. So much in fact that I encourage you to read his review first and to consider this post a follow-up in the same conversation.
To get the obligatory plot summary out the way, below is the book jacket summary from Amazon:
Supreme Ambitions details the rise of Audrey Coyne, a recent Yale Law School graduate who dreams of clerking for the U.S. Supreme Court someday. Audrey moves to California to clerk for Judge Christina Wong Stinson, a highly regarded appeals-court judge who is Audrey’s ticket to a Supreme Court clerkship. While working for the powerful and driven Judge Stinson, Audrey discovers that high ambitions come with a high price. Toss in some headline-making cases, a little romance, and a pesky judicial gossip blog, and you have a legal novel with the inside scoop you’d expect from the founder of Above the Law, one of the nation’s most widely read and influential legal websites.
Saying more risks spoilers. The plot has many twists and turns – some of them unexpected, some of them telegraphed, but, critically, all of them making narrative sense. Supreme Ambitions is a legitimate page-turner. Lat knows the story he wants to tell, and he tells it well. He makes no secret of the themes he wants to convey, and he conveys them effectively. Overall, it’s smashing success. Read More…
This week brings with it events worthy of celebration and remembrance. The “Star Spangled Banner” celebrates its 200th birthday, while we again honor those who lost their lives so tragically on September 11, 2001. Each milestone sparks patriotism and appreciation for the foundation upon which this country rests — the protection of a number of freedoms and the separation of powers to ensure adequate checks and balances among the executive, legislative, and judicial branches of government.
Along with this separation of powers, the United States has taken pride in maintaining the separation of church and state as a means of avoiding the religious persecution that the early colonists sought to leave behind. Despite the effort, periodic blurring of the line occurs, as demonstrated in the debate about prayer in the schools, the refusal of health insurance coverage for birth control, displays of the Ten Commandments on government-owned property, and even whether the Pledge of Allegiance should remove the reference to God.
By Michael Wein
Attorneys have wondered in the past, “What date will the Court of Appeals decide my certiorari petition?” Wonder no more. To continue its evolution under Chief Judge Mary Ellen Barbera – who, as discussed in previous posts, has required that an opinion in each case be issued by the end of the term in which it was considered, and spearheaded a “pending cases” webpage to keep track of undecided cases – the Court of Appeals this week created an online calendar on its homepage listing dates of significant Court events, including oral arguments. Of most interest is that now, for the first time, the anticipated dates of certiorari conferences will be available to the general public. (Thursday, September 18, 2014, and Monday, October 20, 2014, are the next-scheduled conferences.) That of course does not necessarily mean that a party’s certiorari petition will be decided at any certain conference, but at least practitioners will know to check for the outcome a day or two after each conference rather than daily throughout the month. There are additional certiorari decisions that come from time-sensitive petitions (such as in some injunction, family law, and election law cases) that are unlikely to be scheduled in advance. Still, this calendar feature should give approximate notice to most certiorari applicants of when they can learn the fate of their petitions, a welcome improvement.
By Michael Wein
Two judges of the Maryland Court of Appeals, in a little-recognized and short concurring and dissenting opinion, have indicated they may be open to attorneys using the word “specialty” or similar words when describing their professional qualifications, including in advertising. In the case of Attorney Grievance Comm’n v. Zhang, Judges McDonald and Adkins noted their disagreement with Judge Watts’ majority opinion on two issues: They felt that the attorney’s actions justified not a disbarment but an indefinite suspension, and, more interestingly for the purposes of this piece, that an attorney’s use of the words “specialty,” “specializing,” or similar iterations in describing his or her practice should not be considered a potentially sanctionable offense under Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 7.4(a).
Today marks the one-year anniversary of the blog’s official launch. Here are five quick lessons I’ve learned as editor-in-chief.
- Howard Bashman is the kingmaker of appellate blogging.
The blog has featured exactly 100 posts and received just under 29,000 hits. Our two top referrers are Howard Bashman’s How Appealing blog (1,877 hits) and Twitter (1,764 hits). But looking behind the numbers, only about 9 of our posts have made it onto Howard’s blog, while almost every post was tweeted. Making SCOTUSblog’s roundup is a big deal (7 appearances, 1,038 hits), but How Appealing is, to borrow a baseball term, “The Show.” Read More…