Tag Archives: court

Supreme Court Broadens Hobby Lobby Ruling to All Forms of Birth Control

by AdolfoZ30nd Posted on July 3, 2014

Mother Jones

Less than a day after the United States Supreme Court issued its divisive ruling on Burwell v. Hobby Lobby, it has already begun to toss aside the supposedly narrow interpretation of the decision. On Tuesday, the Supremes ordered lower courts to rehear any cases where companies had sought to deny coverage for any type of contraception, not just the specific types Hobby Lobby was opposed to.

The Affordable Care Act had listed 20 forms of contraception that had to be covered as preventive services. But Hobby Lobby, a craft supply chain, claimed that Plan B, Ella, and two types of IUD were abortifacients that violated the owners’ religious principles. The science was against Hobby Lobby—these contraceptives do not prevent implantation of a fertilized egg and are not considered abortifacients in the medical world—but the conservative majority bought Hobby Lobby’s argument that it should be exempted from the law.

Justice Samuel Alito, who wrote the the 5-4 opinion, used numerous qualifiers in an attempt to limit its scope, but a series of orders released by the court Tuesday contradict any narrow interpretation of the ruling.

The court vacated two decisions by the US Court of Appeals for the Sixth Circuit—Autocam Corp. v. Burwell and Eden Foods v. Burwell—and commanded the appeals court to rehear the cases in light of the Hobby Lobby decision. In both instances the Sixth Circuit had rejected requests from Catholic-owned businesses that sought to exempt the companies from offering insurance that covered any of the 20 mandated forms of birth control. The Supreme Court also compelled the US Court of Appeals for the District of Columbia to reopen a similar case, Gilardi v. Department of Health & Human Services. “With Tuesday’s orders,” wrote The Nation‘s Zoë Carpenter, “the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit.”

Justice Ruth Bader Ginsburg predicted this outcome in her dissent, noting that the logic of Alito’s decision went far beyond the limited scope he initially claimed. “The court, I fear, has ventured into a minefield,” Ginsburg wrote.

No matter what Alito and other justices may claim, court decisions set precedent and offer opportunities for lower courts to expand the logic of the initial case. (See Bush v. Gore.) The immediate turnaround to broaden the scope of Hobby Lobby won’t do anything to dispel fears that the case has opened the way for a broad swath of businesses to object to any government regulation they dislike based on the religious whims of corporate owners.

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Supreme Court Broadens Hobby Lobby Ruling to All Forms of Birth Control

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How Obama Can Make Sure Hobby Lobby’s Female Employees Are Covered

by mirorita02 Posted on June 30, 2014

Mother Jones

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The Supreme Court on Monday blew a hole in an Obamacare provision that required employers to provide employees with contraceptive coverage. Specifically, companies whose owners have religious objections to covering contraception are now off the hook—regardless of whether their objections are based in reality.

More MoJo coverage of the Supreme Court’s Hobby Lobby decision.


Hobby Lobby’s Hypocrisy: The Company’s Retirement Plan Invests in Contraception Manufacturers


The 8 Best Lines From Ginsburg’s Dissent


Why the Decision Is the New Bush v. Gore


How Obama Can Make Sure Hobby Lobby’s Female Employees Are Covered


The Supreme Court Chooses Religion Over Science


Hobby Lobby Wasn’t About Religious Freedom. It Was About Abortion.

So what does this mean for women who work for Hobby Lobby—or one of the 70 other companies that challenged Obamacare’s contraception mandate? The White House is considering whether President Obama can take unilateral action to ensure that they are covered. Health care experts say his administration can cover woman affected by today’s ruling similar to how it currently covers women working for nonprofit, religiously affiliated organizations.

Under the accommodation the federal government has worked out with religious nonprofits, the government waives fines for organizations that do not wish to cover contraception; the organization’s insurer or a third-party plan administrator provides the coverage instead. The cost is borne by the insurer, or in the latter case, the government.

“The obligation to provide contraception is technically on the insurers,” explains Timothy Jost, who runs Health Affairs Blog. “It’s just the government’s preference that the employers administer the coverage.”

Using the same workaround, the government can ensure that employees of companies such as Hobby Lobby still get the contraception coverage they are entitled to under the Affordable Care Act, says Sara Rosenbaum, chair of the health policy school at George Washington University. “The only difference is that the employer is not exposed to the cost,” she says.

Jost notes: “I don’t see any reason why the Obama administration couldn’t do it this way. The Supreme Court more or less told them to do it, or strongly suggested they do it.”

Indeed, the five justices who ruled in favor of Hobby Lobby made the accommodation a key piece of their decision. “HHS has…effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services,” the court noted in its opinion. The justices suggested extending that exemption, which “does not impinge on the plaintiff’s religious beliefs.”

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How Obama Can Make Sure Hobby Lobby’s Female Employees Are Covered

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Unions Should Brace Themselves for a Major Supreme Court Loss

by KianHeinrich Posted on June 26, 2014

Mother Jones

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It’s official: The Supreme Court will wait until Monday, the final day of the current term, to issue its decision in Harris v. Quinn. As I explained in May, Harris is a blockbuster case that could, in a worst-case scenario, wipe public-employee unions such as SEIU and AFSCME off the map. And the chances of a damaging decision in Harris just increased—here’s why.

Heading into Thursday, the Supreme Court had Harris and three other cases left to decide. The justices chose to issue their opinions concerning presidential recess appointments (Noel Canning v. National Labor Relations Board) and so-called buffer zones keeping protesters at a distance from abortion clinics (McCullen v. Coakley). Justice Stephen Breyer, a liberal member of the court, wrote the Canning opinion; Chief Justice John Roberts, a conservative, took the lead in McCullen.

This makes it more likely that Justice Samuel Alito, who we’ve yet to hear much from, will write the opinion in Harris, which points to bad news for public-employee unions. “There’s almost no question Justice Alito has this opinion unless he lost his majority along way,” tweets Rick Hasen, a University of California-Irvine law professor. “Anti-union is his signature issue.”

Labor officials can only hope Hasen is wrong. Alito is strongly anti-union. In the 2012 case Knox v. SEIU, Alito essentially invited labor’s foes to challenge the basic model of public-employee unionism, in which non-union employees can be made to pay dues to a union for bargaining on their behalf, representing them in grievance issues, etc. Harris makes such a challenge; it’s what Alito asked for.

Unions like to call those non-member payments “fair share” dues. If it’s the union’s job, they reason, to represent all members and nonmembers in a unionized workplace, then all those workers should pay their fair share for that representation. Conservatives—and Alito—say fair-share fees violate the First Amendment rights of non-union workers.

The outcome in Harris could cut a number of ways. The Supreme Court could uphold the lower court’s decision dismissing the suit—a big union victory. It could strike down fair share fees—the equivalent of Congress passing a national right-to-work bill. (Right-to-work laws ban unions from collecting those fair-share fees from non-members.) Public-employee unions would survive that decision, but it would be a blow. The court could also effectively enact right-to-work nationwide and kneecap a union’s ability to exclusively represent employees in a unionized workplace. That would be catastrophic for public-employee unions.

If there’s any judge who might go that far, it would be Samuel Alito.

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Unions Should Brace Themselves for a Major Supreme Court Loss

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Supreme Court Rules That Even a Sham Recess is Still a Recess

by BradforRitz Posted on June 26, 2014

Mother Jones

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See? If you take President Obama to court over an issue of executive overreach, you might win:

The Supreme Court on Wednesday limited the president’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.

The court’s first-ever case involving the Constitution’s recess appointments clause ended in a unanimous decision holding that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal.

Republicans had argued that the Senate wasn’t really in recess when Obama made those appointments. Obama argued that, in practice, the Senate was indeed in recess, and simply gaveling open a few pro forma “sessions” during the break didn’t change that. In this case, the justices decided to go with the letter of the law, and Obama lost.

This result doesn’t bother me much. I actually agree with Obama that these pro forma sessions are shams, but sometimes the law allows you to get away with technicalities like this. In any case, it’s good that we have a definitive ruling here.

On the other hand, the related ruling on a tea party hobbyhorse—that virtually all recess appointments are illegal anyway because the only real recess is the annual end-of-year break—is more problematic. This one struck me as completely ridiculous and contrary to 200 years of precedent, but the court rejected it only by a 5-4 margin. That’s four votes for an entirely invented bit of nonsense, and that’s not a good sign.

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Supreme Court Rules That Even a Sham Recess is Still a Recess

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Supreme Court: Aereo Looks Just Like Cable TV, So It Has to Follow the Same Laws as Cable TV

by JaniPerdriau Posted on June 25, 2014

Mother Jones

I’ve been reading the Supreme Court’s opinion in the Aereo case, and it’s kind of fascinating. As you may know, Aereo is a company that installs thousands of tiny antennnas in a warehouse and then lets users “rent” one of the antennas, as well as some storage space. Users connect to their antenna via the internet, and can either watch broadcast TV in real time or set up times for shows to be recorded.

Broadcast networks claim that Aereo is retransmitting their content to the public, which is a violation of copyright law. Aereo, naturally, disagrees. The court’s decision appears to hinge on a single key question: can Aereo be said to be an active infringer when it’s merely a passive conduit for users, who are the ones who choose what to watch and record?

The majority said yes, because Aereo is essentially just like a cable TV operator, and the Copyright Act of 1976 specifically says that cable TV operators are retransmitting content. Antonin Scalia, writing in dissent, calls this specious:

The Court’s reasoning fails on its own terms because there are material differences between the cable systems at issue in Teleprompter and other decisions on the one hand and Aereo on the other. The former (which were then known as community-antenna television systems) captured the full range of broadcast signals and forwarded them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times selected by the user. The Court acknowledges this distinction but blithely concludes that it “does not make a critical difference.”

….Even if that were true, the Court fails to account for other salient differences between the two technologies….At the time of our Teleprompter decision, cable companies “performed the same functions as ‘broadcasters’ by deliberately selecting and importing distant signals, originating programs, and selling commercials,”, thus making them curators of content—more akin to video-on-demand services than copy shops. So far as the record reveals, Aereo does none of those things.

The key distinction here is that Aereo doesn’t actively “curate” its content or retransmit everything at all times. It just makes everything available and users then choose what to watch. “Some of those broadcasts are copyrighted; others are in the public domain. The key point is that subscribers call all the shots.”

I can’t say that I find this very persuasive. For one thing, cable operators don’t forward everything to all subscribers at all times. You have to turn on your cable box and then set your tuner to pick up a particular station. More substantively, I suppose it’s true that there are bits and pieces of broadcast television that are in the public domain, but come on. Virtually everything Aereo makes available is copyrighted material and they know it. Scalia says Aereo is a lot like a copy shop, which isn’t held liable for the occasional customer who infringes copyright because, in practice, most of their customers aren’t infringing. But if a shop ran a service where they copied entire books from their library, they’d be held liable—even if a few of their books were in the public domain and even if their users had to physically press a button to start up the copying process.

In any case, as near as I can tell this case is based almost entirely on extremely fine points like this. Is Aereo essentially the same as a cable TV operator, and thus something that Congress intended to regulate in the Copyright Act of 1976? Can Aereo be held liable for infringement even though it’s users who make the decisions about what to watch and what to record? Are Aereo’s transmissions “public” even though each individual antenna is rented out to only a single individual person?

I could have seen this case going either way, but in the end the majority decided the case based on their conclusions about (a) the intent of Congress and (b) whether Aereo is so similar to a cable TV operator that it falls under the same laws. In the end, they decided that if it looks like a duck and quacks like a duck, it’s a duck. And Aereo lost.

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Supreme Court: Aereo Looks Just Like Cable TV, So It Has to Follow the Same Laws as Cable TV

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The Supreme Court Just Decided an Internet Case No One Understands

by AlanKXQWcflxcog Posted on June 25, 2014

Mother Jones

On Wednesday, the Supreme Court, in a 6-3 decision, handed over-the-air broadcasting giants—including ABC, NBC, and Disney—a big victory over Aereo, a tiny, internet-based startup. Aereo’s lawyers had warned the high court that a ruling against the company would sound a death knell for other Internet technology, such as cloud-based computing. But in all likelihood, the internet will be fine.

Here’s a brief history of the case: Aereo, a small Brooklyn based start-up, operates thousands of tiny antennas that capture signals from public television broadcasts. It charges its customers about eight bucks a month to select programs and record and stream this content to their Internet devices via the cloud. It has been touted as the VCR of the future.

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The Supreme Court Just Decided an Internet Case No One Understands

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Read the Supreme Court’s Unanimous Decision Telling Cops They Need a Warrant to Search Your Cellphone

by Kyle3094ioyoxj Posted on June 25, 2014

Mother Jones

Read our explainer of the decision here.

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Supreme Court Cell Phone Search Decision (PDF)

Supreme Court Cell Phone Search Decision (Text)

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Read the Supreme Court’s Unanimous Decision Telling Cops They Need a Warrant to Search Your Cellphone

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Awlaki Assassination Memo Finally Released

by AnnabelCorrigan Posted on June 23, 2014

Mother Jones

A federal court has finally released the Obama administration’s memo justifying the targeted killing of Anwar al-Awlaki, an American citizen living in Yemen who was apparently a top Al Qaeda operative. I think we mostly knew this already, but the memo confirms that the decision to kill Awlaki was based primarily on the Authorization to Use Military Force passed a few weeks after 9/11:

“We believe that the AUMF’s authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy authorization within the scope of the force authorization,” reads the Justice Department memorandum, written for attorney general Eric Holder on 16 July 2010 and ostensibly intended strictly for Awlaki’s case.

Among those circumstances: “Where high-level government officials have determined that a capture operation is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to US persons or interests.”

I’ve never taken a firm stand on the decision to kill Awlaki. Everything I’ve read persuades me that he was, indeed, a high-ranking Al Qaeda operative, and a dangerous one. If we were engaged in a normal war, there would be no question about our right to treat him like any other enemy combatant.

But we aren’t engaged in a normal war, are we? There’s no specific enemy, no specific battlefield, and no way of knowing if and when the war is over. The AUMF is open-ended, both in time and geography, and is famously vague about just who it authorizes the president to make war against. It specifies “those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” and that takes in a helluva lot of ground.

Thus, the problem I’ve always had isn’t specifically with the targeting of Awlaki, but with the fact that the targeting was based on such a flimsy legal pretext. However, despite the fact that I’m disappointed in Obama’s decision to interpret the AUMF widely, most of the blame on that score should be directed not at Obama, but at Congress. The AUMF is now more than a dozen years old, and it’s long past time for Congress to emerge from its fetal crouch and write a new law specifically designed for our present circumstances. Among other things, it should address the president’s ability to target American citizens for killing. If Congress wants to give the president that power, it should debate and pass a law and the courts should rule on its constitutionality. That’s the rule of law. And regardless of whether I liked the law, I’d accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Instead, as usual, Congress prefers to do nothing. This leaves them free to kibitz if they don’t like what the president is doing, or to simply avoid having to take a stand at all. It’s shameful.

Read the full Justice Department memo here.

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Awlaki Assassination Memo Finally Released

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Supreme Court Narrows Scope of Software Patents. Slightly.

by ShannonKortig Posted on June 19, 2014

Mother Jones

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The Supreme Court unanimously tossed out an egregiously vague software patent today, and that’s good news. Unfortunately, it was a fairly narrow ruling that didn’t provide much guidance about which software patents are and aren’t valid. Tim Lee explains:

The patent claimed a method of hedging against counter-party risk, which is a fancy word for the risk that you make a deal with someone and later he doesn’t uphold his end of the bargain. The Supreme Court unanimously held that you can’t patent an abstract concept like this merely by stating that the hedging should be done on a computer.

….But the Supreme Court rejects Alice’s patent because “each step does no more than require a generic computer to perform generic computer functions.” But many computer programmers would point out that this describes all software.

Software is nothing more than a long list of conventional mathematical operations. If you think a list of conventional operations isn’t patent-eligible, that implies that any “invention” you can implement by loading software on a generic computer isn’t patent-eligible. The problem is that judges lose sight of this fact as software gets more complex, leading to a de facto rule that only complicated computer programs can be patented.

This problem is hardly unique to software. An ordinary physical invention, after all, is usually just a collection of previously known parts put together in an innovative way. So when do you decide that the invention, taken as a whole, is truly innovative? It’s a judgment call.

Now, I happen to think that this judgment is harder in the software realm than elsewhere, and that patent offices are inherently less competent to judge software implementations than other inventions. The algorithms themselves are typically impenetrable, and deducing prior art is all but impossible. At a guess—and that’s all I can do since there’s really no data available—I’d say that hardly any software inventions are truly innovative. They’re simply solutions to problems that are put in front of a coding team. For the vast bulk of them, any other coding team given the same problem would probably come up with a pretty similar solution.

Unfortunately, it’s essentially unknowable whether I’m right or wrong about that. What’s not unknowable, however, is what the world would be like without software patents. That’s because we used to live in such a world, and guess what? Software development thrived. So it’s hard to see what benefits we get from all this. It’s great for patent trolls, and I suppose it works OK for giant corporations that use their patent portfolios as bargaining tools with other giant corporations, but that’s about it. So why bother?

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Supreme Court Narrows Scope of Software Patents. Slightly.

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GOP Governors Paying Big Bucks to Contoversial Marriage Therapist to Defend New Abortion Laws

by MaryannPHIE Posted on June 12, 2014

Mother Jones

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Over the past two years, at least four Republican-controlled states have paid nearly $200,000 in taxpayers funds to Vincent Rue—a marriage therapist whose testimony has been repeatedly disregarded by judges—to help defend ultra-strict abortion laws in court.

Rue, who holds a doctorate in family relations from the University of North Carolina School of Home Economics, has claimed that “abortion reescalates the battle between the sexes” and “abortion increases bitterness toward men.” For decades, he has strived to convince mainstream researchers to recognize “post-abortion syndrome,” a supposed mental illness resulting from abortion.

But “after submission for peer review by scientists with the Center for Disease Control, the National Center for Health Statistics and other scientific institutions, Rue’s study was found to have ‘no value’ and to be ‘based upon a priori beliefs rather than an objective review of the evidence,'” according to Daniel Huyett, a federal judge who disregarded Rue’s testimony in Planned Parenthood v. Casey, a landmark 1990 abortion case that eventually ended up before the Supreme Court. “His testimony is devoid of…analytical force and scientific rigor,” Huyett added. “Moreover, his admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias.” Rue “possesses neither the academic qualifications nor the professional experience of plaintiffs’ expert witnesses,” another federal judge wrote in 1986 after hearing Rue’s testimony in another landmark abortion case, Hodgson v. Minnesota.

Rue “has been really thoroughly discredited by trial courts,” says Priscilla Smith, who faced Rue many years ago as a litigator and now directs the Yale Law School’s reproductive justice studies program. (Rue said he couldn’t comment for this story without the permission of the state attorneys general who’ve hired him.)

But Rue’s history hasn’t prevented Republican administrations in Alabama, North Dakota, Texas, and Wisconsin from giving him lucrative work as a legal consultant. These days, though, he rarely testifies himself. Instead, he works behind the scenes to handpick expert witnesses, write reports, and guide states’ legal strategies for defending abortion restrictions. From 2012 to 2014, North Dakota paid Rue $19,936 to help defend its six-week abortion ban—which legal scholars criticized as patently unconstitutional. (A federal court struck down the ban in April; the state is appealing.) In the same time period, Alabama paid Rue $79,087.50 to defend a law that requires abortion providers to obtain admitting privileges with a local hospital. (The law threatens to shut down three of Alabama’s five abortion clinics; the case, brought by Planned Parenthood, is ongoing.) In 2014, Texas paid Rue $36,392 in “other witness fees” for work on an unspecified lawsuit.

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GOP Governors Paying Big Bucks to Contoversial Marriage Therapist to Defend New Abortion Laws

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