The main theme of today's oral arguments, considering whether or not the rest of the Affordable Care Act can stand if the Court finds that the individual mandate is unconstitutional, boiled down to what constitutes judicial restraint in this context. What is the most limited yet effective solution the Court can adopt?

Advocates today offered three potential outcomes for the Court to consider if the individual mandate fell: (1) Striking down the entire law to allow Congress to work from scratch, (2) Expunging the community rating and guaranteed coverage requirements (those obligating insurance companies to cover everyone regardless of preexisting conditions), but allowing the seemingly-unrelated aspects of the law to continue, or (3) Removing only the individual mandate so that Congress can determine and fix any problems that arise from the remaining provisions.

Normally judicial restraint is shown by the Court deferring as much as possible to elected officials (i.e. not striking down laws), which would imply that the opposite (occasionally referred to as judicial activism) is for the Court to declare more laws unconstitutional. Today the Justices wondered if stepping into the muddled territory of which provisions would effect each other and which ones could stand alone (and as Congress intended them to stand) would be an unwelcome intrusion, even if it meant more of the law would survive.

Justice Sotomayor argued that leveling any provisions beyond just those that the Court deemed unconstitutional would be an undemocratic, intrusive step outside the Court's traditional role.

Justice Sotomayor: What's wrong with leaving it to -- in the hands of the people who should be fixing this, not us?...Are you suggesting that we should take on more power to the Court?...Unless Congress tells us directly, it's not severable, we shouldn't sever. We should let them fix their problems.

Justice Scalia, on the other hand, indicated he supported a complete upending of the law to avoid any unnecessary complications that might occur by salvaging bits and pieces.

Justice Scalia: So you're just put to the choice of, I guess, bankrupting insurance companies and the whole system comes tumbling down, or else enacting a Federal subsidy program to the insurance companies, which is what the insurance companies would like, I'm sure. Do you really think that that is somehow showing deference to Congress and -- and respecting the democratic process? It seems to me it's a gross distortion of it.

 Justice Kennedy, who is presumed by many to have the final say in the outcome of this case, appeared to side with Justice Scalia.

Justice Kennedy: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -than striking the whole. I just don't accept the premise.

But the lawyers came well prepared for these responses.

Paul Clement argued for the petitioner that each of the provisions relied on one another so that if the individual mandate fell, the Court's investigation would find that the periphery clauses would have to as well. The mandate is connected to the exchanges, which is connected to the tax credits, which is connected to the employer mandates and revenue offsets, and so on and so forth like dominoes.

H. Bartow Farr, appointed by the Court to argue that the rest of the law could stand without the mandate, argued that the mandate was just one of many tools that Congress relied on to fund the monetary fallout insurance companies would absorb. If the Court found the mandate unconstitutional, Congress would simply fill in the gap with a different mechanism.

By the end of the argument it appeared that, as expected, the liberal justices wanted as much of the act as possible to remain, while the more conservative justices were content with wiping the slate clean. Only Justice Roberts appeared willing to allow some of the periphery provisions to remain.

A few initial observations from oral arguments today:

(1) There were many missed opportunities for Solictor General Verrili to alleviate the Justices' concerns that the individual mandate lacked a limiting principle.

One in particular came in the first 15 minutes, when Chief Justice Roberts asked Verrili how requiring health care is any different from requiring everyone to buy a cell phone to mitigate future disasters. After all, the point to health care is that you never know when you'll get sick, just as you don't know when you'll need to call an ambulance.

GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's -- We -- I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they -

CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it.

This question appeared to be Justice Roberts offering Verrilli an early opportunity to provide a limiting principle - an opportunity Verrilli failed to take. At the very least, he should have stated that the Court could reserve the right to strike down a mandate that affected a different market, since healthcare is unique. (Unique in that insurance provides the only affordable means of receiving healthcare, and thus everyone is involved in the insurance/healthcare market).

(2) Arguments against the mandate relied heavily on creating a distinction between the healthcare insurance market and healthcare services.

Both Paul Clement and Mike Carvin responded to the Justice's comments that the mandate sought to regulate a market that already existed and everyone is a natural part of by drawing a line between buying insurance and receiving healthcare. It is true that most people have to participate in healthcare at some point in their life, but that doesn't mean that they have to buy insurance. Insurance allows a participant to take a risk based on their individual circumstances and reduce the costs for services they expect to receive.  There are plenty of people, usually younger, who decide that the risk is low enough that they don't need insurance and the healthcare law will infringe on this decision.

(3) Justice Kennedy's strange silence is more indicative of his lack of a strong opinion on the mandate's constitutionality than his support for striking it down.

Many commentators are already pointing to the lack of questions asked by Justice Kennedy during the second half of the arguments (when advocates argued against the mandate) to show that he supports ruling the law as unconstitutional.  But Justice Kennedy is usually just as vociferous in his questioning when he supports a law as when he is against it. Questions are often used by the justices to draw out arguments they find more compelling to persuade their judicial companions.

It could be that Justice Kennedy simply saw no point in arguing when it was likely the liberal bloc would vote to uphold the law, or that he didn't want to show his hand to the wide and thirsty audience that has made him the focal point of their predictions. The questions he did ask show his hesitance to grant Congress an expansion in the commerce clause, but whether the unique nature of the healthcare market provided a justification for doing so was largely left unanswered.

Which is why I believe Chief Justice Robert's vote will be crucial to the outcome of the case. Justice Kennedy has a reputation for wavering on his vote throughout the opinion drafting process. My guess is that he will side with Roberts in whatever direction that takes him.

(It is fairly clear that Justices Thomas, Alito, and Scalia will vote to strike it down, as Justices Breyer, Sotomayor, Kagan, and Ginsburg will vote to uphold it.)

After waking up once again to an abrupt 3:00am shower (thank you Supreme Court sprinklers - what would this experience be without you?), I took another head count and our line had grown to 80 participants over night. About half of the people I spoke with expressed interest in Tuesday's oral argument, but many others had been worn out by the cold night and acquiesced to hearing Monday's case.

At 7:30 the police instructed the line that 60 people would be admitted, and no one would be allowed a second viewing. The police walked down the line, handing out small slips of paper that held a viewer's official number in the line to the Courtroom. In half an hour the line separated, leaving approximately 40 people still standing on the sidewalk waiting for Tuesday and 12 who were unable to receive a seat. The latter were happily escorted inside the building when the police returned with more seats for the general public.

He felt a lot differently when the initial cut-off said no one after 60 would get in.

No one who wanted to see the Court's Monday arguments was left out. Even those who had arrived the morning of were able to claim the additional seats allocated to the public. From the point of view of someone who was expecting a line of epic proportions, I was a little disappointed. It's possible that Tuesday will see a significant turn out for the debate over the individual mandate, but as of 9:00 tonight it still looks like everyone in line will be able to get a seat. Not that this is a bad thing, but it gives me a different perspective on sleeping on the sidewalk for four days.

Protests continued throughout the day, including several tea party members and ACA supporters. Rick Santorum appeared briefly for a comment, but other than the emphatic chanting of pro-healthcare slogans, the event was uneventful.

As for the Anti-Injunction Act arguments that were heard today, the general consensus from viewers is that it is extremely unlikely the Court will rule that that the healthcare requirement is a tax, not a penalty, and that case should be postponed until after the law goes into effect.

Sunday evening has passed in a flash. After the protest ended around 4:00 the sun broke through the cloud cover for some much welcomed sunshine.  Kathie and I decided to skip the rest of the religious protest to make a trip to Starbucks and charge our batteries (technological and physical).  

Our line has quadrupled in size, rounding the corner on East Capitol. A count at 8:00 put the number at approximately 47.  If the Court continues its policy as stated on Friday - 60 chairs for the general public - everyone in line will get a seat. If they want one. 

The line now goes down the street and around the corner.

The crowd is buzzing with strategies for tomorrow morning. No one knows for sure how the Supreme Court police will handle the difference between those waiting for Monday and those willing to stick through the extra night for Tuesday and Wednesday. If you go inside tomorrow morning, do you automatically sacrifice your seat for future arguments? 

For a standard oral argument, watchers know which day they want to attend because any other day would be an entirely unrelated case. The healthcare arguments, however, are split over three days, with different topics marked for discussion on separate days. Very few people in line (really no one) are interested when I ask them about the Anti-Injunction Act that will be heard on Monday. But it will be the historic first day of oral arguments, and that has a certain attractive symbolism. 

Tuesday will be the constitutionality of the individual mandate, and most people perk up for that. Then they pause to consider the extra night sleeping on the DC streets. Who goes in tomorrow and who will wait it out is still anyone's guess, and probably will be until 7 AM tomorrow (or now that it's after midnight, today).

If there was ever a night to skip, apparently last night was it. A heavy rain unleashed itself on the crowd at 2:00am, waking everyone who had managed to fall asleep sitting upright in their chairs.

The paid line standers had been betting against the rain, and were fully exposed when it started coming down. To make matters worse, the company that hired them never delivered their promised rain supplies, and most had few ways to protect themselves.

And at 4:00am the coup de grace - just as the rain had stopped the automatic sprinklers shot to life and drenched everyone from behind. Even one of the security guards was caught standing in the grass on top of a sprinkler head. When I arrived in the morning, however, everyone somehow appeared to be in good spirits. Dana was happy to be relieved of his duty, but turned down an offer for a hot breakfast.

By 10:00 the reporters began filtering in. Those in line who had declined to share their stories and viewpoints were now more willing, but the paid line standers were reminded of their explicit instructions not to speak with reporters (occasionally even by the physical presence of their supervisors).

The Christian Defense Coalition held a rally in front of the Court that consisted of a call to prayer and arranging flowers in a line around the Supreme Court while participants listened to religious anti-ACA rhetoric. It was a respectful protest, and the crowd was careful to stay on public property.

As the uncomfortable conditions wore our patience thinner, and the air continued to polarize, the line began debating the act. Many of the paid line standers have better stories than those of us who are there to personally attend: a 40-year-old man who has never had health insurance in his life and two young men from Africa and the Middle East who have strong opinions about the availability of healthcare in their home countries compared to that in the U.S. (hint: we don't win). Others refer to the law as a "driving the nation off a financial cliff" or a moral transgression. But despite the agitation, we have all made an effort to stay friendly.

The line is continuing to grow as we sneak closer to Monday. A head count at 2:00 put the number at 25.

Saturday night has been quiet. The rain stopped around mid-afternoon, but everything and everyone is wet and cold.  One paid line stander decided he no longer cared to face the world and hid under his tarp. The rest of us made light conversation until the cold seeped too close to our bones and we retreated to our personal corners.

Dana stopped by to let me go home and shower, and he'll be keeping my seat for the next few hours as I catch some much needed shuteye. The line has only grown by one person (our second Carol), but she disappeared for several hours as she explored the Methodist church. We saw her briefly again as she helped the group arrange a pizza delivery, but she didn't have a sleeping bag, umbrella, or even so much as a change of clothes so I hope she decided to skip the line for the night.

Several passersby expressed interest in joining our lineup, but after hearing the weather forecast tonight (more of the same dreary rain) they felt Sunday morning would be best. I have to agree.

Day #2 started out pleasant enough. We woke up to the sounds of traffic and police chatter as the night shift was replaced with a fresh set of faces. Some of the line standers from the previous day had returned to relieve their friends and coworkers after a full night resting indoors. Carol and I walked down to Starbucks for a warm cup of coffee and a bathroom, while others took advantage of a Methodist building nearby that offered free showers and breakfast to those in line.

When we left Starbucks the overcast sky had already started to turn, and by noon the rain was coming down hard. We scrambled to cover our belongings as best we could with raised umbrellas, tarps, and spare ponchos, but everyone had something that was soaked by the end of the hour.

Reporters continued to filter in throughout the day, asking us questions about why we were dedicated enough to brave the downpour, and where we stood on the health care law. Since there were only four of us there who planned to see the arguments, we started to become very familiar with each others talking points (as much as we had any).

Carol is the only one who claimed to be against the law, though she qualified her statement by saying that she would prefer to do more research before stating a strong opinion one way or the other. (I was surprised that there weren't more people in line who were opposed to the law, especially considering the size of the tea party rallies that walked by).

Kathy is strongly in favor of the law. She has followed the health care litigation around the country to share her story as a mother of two children with pre-existing conditions who had trouble paying for health insurance as adults before their employers picked up the tab.

Despite the differences of opinion, the only tense moment between the crowd was instigated by an outsider to the group. There are two line standing companies employing people to save a seat for their clients. One of the company managers arrived at the Court line to find out that his people hadn't stayed in line where he thought they would be. He argued with the police, with the others in line who were less than pleased to be knocked down a few notches, and with the other company of line standers. Harsh words were said (including some mild threats), but the issue was finally resolved.

There is now an unofficial but written list of Supreme Court watchers waiting in line for the seats - Dana and I are 11-12 in line. The police handled it with professionalism, but how is this happening when it's only Saturday?

We arrived at 7:00 last night and already we could tell we were late. The Supreme Court announced that a line had started forming at 9:30am Friday morning, and by evening there were eleven of us lounging on the sidewalk. Dana and I came well-prepared: two folding chairs, snacks (with plenty of coffee), a small 6-cell netbook for videos, and a USB drive stocked with Dr. Who episodes.

We quickly realized, however, that it was going to get cold fast. Dana took orders for a supply run to Target for me and those in line, and came back armed with umbrellas and sleeping bags for everyone in need. We also realized the laptop was completely extraneous - everyone is so friendly we've barely cracked it open.

Many of those in line are paid line standers, holding spots for parties interested in seeing the arguments and not enduring three days of DC rain. Those who were willing to stick it out quickly bonded together: Tom, a left-wing independent journalist travelling from New York; Kathy, a trial lawyer from Atlanta with two chronically ill children; and Carol, a tourist from California exploring the city and struck with the inspiration to join us at 3:00 this morning.

The line standers are working in shifts - usually about 6-8 hours. I've yet to see someone return after their replacement takes over. The rest of us rolled out our sleeping bags and hunkered down for what turned out to be a chilly evening. Midnight sandblasting at the capitol building kept us awake, but most of us were able to sleep until it started sprinkling around 5:30. (I came with the misconception that the Supreme Court doesn't allow sleeping because it looks too much like camping, which is illegal to do on the public sidewalks in DC, but the police were perfectly fine as long as we didn't obstruct the street).

Internet is scarce, as it is only available at the Starbucks five blocks away. I will continue to report as the night continues.

My suspicions about a surreptitious relationship between the Supreme Court and the weather continue.

This is the forecast for the weekend before the heatlhcare arguments, when I plan to be stationed on the steps of the Court hoping for a ticket:

Naturally.

Howes v. Fields

An axiom of the Supreme Court is that for every issue decided there are three more ignored, and each one will inevitably find its way back to the Court's docket.

In 1968, the Court held in Mathis v. United States that a judge should not admit evidence when police officers fail to notify a prisoner of his or her Miranda rights when questioning the prisoner about a crime unrelated to their incarceration.  In Mathis, the police officers had reasoned that Miranda was inapplicable because the issue at hand, possible tax fraud, did not usually lead to criminal charges. What the Court did not address was whether or not a prisoner being questioned inside a prison always requires Miranda warnings before an interrogation. Thus, we have Howes v. Fields.

But first, a little more background.

Under Miranda v. Arizona (1966), police officers must notify anyone they take into custody of their 5th Amendment right to counsel (appointed if they cannot afford one), and that anything they say can be used against them in court (right against self-incrimination). Ever since, the Court has been trying to draw lines in the sand that allow for plain, but flexible, rules - rules that aren’t so strict as to inhibit police investigations, but clear-cut enough to define boundaries for suspects.

A problem in this is to define where and when a suspect is in custody and therefore needs to be “mirandized.” Supreme Court precedent shows that the Court prefers an “all-the-circumstances” method, where courts are instructed to consider all the facts in a situation to determine if a reasonable person would feel free to stop and leave the interrogation. For instance, a person being interviewed by a police officer in their living room might not feel restrained, but if that same person were surrounded by belligerent armed guards who had their house on lockdown, then they probably would. Several cases (Oregon v. Mathiason [1977], J.D. B. v. North Carolina [2009], Maryland v. Shatzer [2010]) reaffirm the Court’s penchant for this approach.

Which is why it’s not surprising the justices leaned toward this principle in oral argument for Howes. This case questions whether or not a prisoner, when removed from the general prison population to be questioned about a crime that occurred outside of the prison, must be given a Miranda warning even if the police officers expressly  say the prisoner is free to go at any time. Howes argued that Mathis implies a Miranda warning is needed when a prisoner is questioned for an outside crime. Fields and the United States both urged the Court to continue its long line of “all-the-circumstances” rulings.

If the Court chooses to decide the issue before it, instead of ignoring it in favor of a narrower, more technical decision,* it will most likely agree with Fields and the U.S. Solicitor General. After all, it’s going to be an uphill battle when you’re trying to tell the justices who wrote the opinion that they meant something beyond what they wrote down:

Justice Kennedy: And what you infer is the rule that incarceration constitutes custody.

Ms. Jacobs: No. Custody is when the prisoner is isolated, incommunicado, outside the general prison population, and he is being asked questions by law enforcement designed to incriminate him...

Justice Kennedy: That is Shatzer, and Shatzer was careful to say we’ve never decided that issue.

Ms. Jacobs: I think what Shatzer was saying, and I know it’s hard for me to tell you what Shatzer is saying since you decided Shatzer, but I think that Shatzer...

What is most interesting about this case, and is usually brought up when advocates argue for Miranda boundaries, is the societal impacts a broad ruling would have. If the Court rules on the merits in this case, it will affect a significant number of trials currently ongoing in lower courts. And according to both attorneys arguing last week, the ramifications involve broader questions about the cost-benefit relationship involved between personal rights and state interest.

Ms. Jacobs: And I understand the Court’s concern that you might lose, you might lose evidence; but Miranda is going to protect us from false confessions, which is even a greater cost to society than having to give the Miranda rights.

Mr. Bursch: I do want to emphasize that the Sixth Circuit’s per se test does have societal cause; it impedes prison administration and eliminates potential for voluntary truthful confessions that we all want.

The court understands this dilemma and they will have to grapple with it if they choose to issue a decision on the merits of the case. It is just as likely, however, that they will rule narrowly on Howes’ particular circumstances and defer the issue again to another term. It is after all, the Court’s favorite move.

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*Part of the case involves the writ of habeas the 6th Circuit granted for Howes, which relies on a clearly established precedent necessitating the Miranda warning in this situation. The Court could simply determine that habeas relief is based on an incorrect interpretation of Supreme Court precedent and let the lower courts sort it out.

Martinez v. Ryan

Tuesday at the Court was not a good day for the legal system's reputation.  First, the Court heard about the trifecta of bad lawyers representing Maples, then a challenge of ineffective counsel against two state-appointed lawyers in Arizona. And at the end of all that, the Court still had Martinez.

Martinez was tried and convicted for sexually assaulting his step-daughter, a girl under the age of fifteen. During his appeal, he wanted to challenge that his appointed trial lawyer was ineffective for failing to (among other things) challenge the prosecution's expert witness, provide an expert witness for his defense, and challenge information presented by the prosecution that had thin scientific value.

Under Arizona law, Martinez could challenge his conviction under a direct appeal, but could not bring up the issue of ineffective counsel until a post-conviction appeal (in shorthand it's referred to as "Rule 32"). There's a good flowchart of Arizona's criminal process here. When the state appointed him a new attorney for the process, she filed the direct appeal, but also filed a post-conviction notice that she did not find a valid claim for challenging the trial lawyer's conduct.

(This is part of her duty as post-conviction defense: she has to either file a claim for post-conviction relief or submit a statement that she did not discover any valid claim for relief. However, she is also supposed to notify her client of the decision, and Martinez' counsel sent him the notice in English, whereas he can only understand Spanish.)

Her statement made it impossible for Martinez to make his Rule 32 challenge. He filed a federal habeas challenge arguing that his appeallate counsel was also ineffective, and requested a third state-appointed counsel for his initial "ineffective trial lawyer" argument. He was denied on the basis that he had already received his appellate counsel, and the state did not need to give him another.

After all this, the question before the Supreme Court is whether or not Martinez should receive state-appointed counsel - and it seems the Court might actually give it to him (in a limited way, of course).

The biggest concern, by far, was the "slippery slope" argument - if they give Martinez a state-appointed lawyer here and he loses that appeal, then he could just challenge that his new lawyer was ineffective, and then they'd have to appoint another that he could challenge again. And so on, and so forth.

It's a meme.

This argument seemed to really strike home with Justices Alito, Kennedy, and Scalia. But the rest of the justices, including Chief Justice Roberts and excluding Justice Thomas, seemed to be searching for a limiting principle. The fact that Martinez had never really had the opportunity to challenge his first trial lawyer might make it more difficult to outright deny his claim, but the justices will never go for a principle that opens the states to the heavy-cost of supplying an endless line of lawyers for Martinez to challenge.

We will probably see an incredibly narrow principle that has little to no collateral impact outside of Arizona. When Arizona, or a state with similar post-trial procedures, decides to allow convicted criminals to argue ineffective counsel only during the post-conviction appeal, then that state must provide a lawyer. This leaves Arizona free to draw a hard line against providing post-post conviction lawyers directly after the first post-conviction lawyer.

Douglas v. Independent Living Center

The first case this term might be better described as its Sherlock Holmes counterpart, The Case of the Strange Bedfellows. On one side, the petitioners include several states (California and 30 states in support) taking sides with the U.S. government. This is a strange enough occurrence when one considers that state rights vs. federal powers is the longest running feud in our country. On the other side, the respondents include the liberal American Civil Liberties Union (ACLU), the conservative Chamber of Commerce, and several members of Congress - just in case they risked having the government act unilaterally.

Why? The answer is simple, my dear Watson, for it all comes down to the money.

When California decided that it was too broke to continue paying the high costs of Medicaid (or 'MediCal'), the legislature voted to cut reimbursements to medical providers by 1-10%. The medical providers (hospitals, daycare centers, nursing homes) protested the idea of having to watch their bottom-lines crumble. They decided to sue in federal court, arguing that reforms were illegal under the Medicaid statute (and the Supremacy Clause of the Constitution - the clause that says that all federal laws trump state laws). The ACLU for the poor and disabled who benefited from Medicaid funding, and the Chamber of Commerce for the providers.

Problem is, the Medicaid statute doesn't mention that a private person (such as patients, doctors, or hospitals) can challenge its enforcement. Medicaid is a cooperative program; states voluntarily participate in order to receive large federal checks. Technically, if they don't comply with the parameters of the program - such as not providing enough reimbursements - the government can withdraw their funding until states acquiesce. As Justice Ginsburg pointed out in oral argument this morning, this is a "drastic measure that would hurt the people Medicaid was meant to benefit,"  and the lawyer for the petitioner was forced to concede that this was a rare occurrence.

The government withdrawing its funding is not a rare occurrence because state violations are rare, but because the administrative remedy in place usually works. The law gives the Department of Health and Human Services (HHS) the ability to review all state Medicaid programs, and sets a 90-day period to consensually resolve complications that arise under any state changes. This administrative remedy usually solves any HHS conflicts with the states - no federal suits required.

The question before the Court comes down to this - is it better to let private practitioners (i.e. hospitals) sue states to stop Medicaid reforms they don't like, or for the judiciary to stay out of the fray and let the administrative body Congress created do its thing?*

Oral arguments today suggest the the Justices seem to think some middle ground is necessary. Breyer balked at the idea of letting any private entity sue the state,

There are only 50,000 kinds of reimbursements. Maybe there are a million. I don't know how many. And they only take place in like, say, 400,000 counties. And we will have Federal judges reaching different views about what is sufficient in each of those different places...Well, hm, a problem."

Justice Kennedy swung to the other side,

"You introduce the fact, or the consideration, of what's administratively workable...There are almost $400 billion of HHS expenditures that are supervised by 50 people. That works out to $800 million each; and they say, we don't have time for this...it's much more consistent with the application of Federal law to allow this action to be brought in the courts."

Bringing the Court together, Justices Ginsburg and Sotomayor proposed what may end up being the most practical compromise between the two extremes - allowing private practitioners to sue states in federal court only so far as to stop state remedies from going into effect during the 90-day administrative review process,

 "...you would be satisfied with a limitation that the Court can issue an injunction pending the administrative procedure without going on to then the substance of the question...?"

"...what's wrong with just saying that the court's power is limited to...a preventive injunction that just stops the State from acting until the administrative process concludes?"

My best sleuthing from the comments this morning is that the Supreme Court is going to follow Justices Ginsburg and Sotomayor's lead and compromise.

But this situation isn't just limited to California or Medicaid, which is why 30 additional states signed on to support California. If states decide to follow California's method of reducing the budget by cutting Medicaid financial support, this case could have drastic impacts. This case might be the difference between the disabled elderly receiving medical attention or not, simply because hospitals don't want to assume the extra costs associated with increased care, absent state reimbursements. Mr. Phillips, the respondent's counsel, summed it up perfectly when Justice Breyer argued that allowing court injunctions was a slippery slope towards a mess of suits:

Justice Breyer: "No, no. Your people have your problem. But some other people have another problem."

Mr. Phillips: "But my people have a life and death problem, Justice Breyer. So if there was ever a situation where you would say, let's look to see whether or not there is relief available, this would be the situation."

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*(Of course, the Supreme Court phrased that question as whether or not private practitioners have standing under the Supremacy Clause to challenge a state statute that does not provide a cause of action for private challenges. But where's the fun in that?)

Lions and Tigers

"Of Lions and Tigers and Contract Terminations"

I'm happy that SCOTUSblog today was just as amused as I was last week with Justice Breyer's "lions and tigers" hypothetical in oral argument for Mac's Shell Service Inc. v. Shell Oil Products Co. The case concerns the difference between "constructive termination" and "implicit termination." As the law currently stands, constructive termination denotes a situation where the franchisee (i.e. a renter) voluntarily terminates a contract because the conditions have become intolerable (a leaser shuts off the water, electricity, dumps ants somewhere, etc). Implicit termination is when a franchisor behaves in a way that any reasonable person would believe that the franchisor themselves had terminated the contract (i.e. the leaser bulldozes the house). Implicit is clearly drawn, while constructive is fuzzy law. Hence, the following quote from argument last Tuesday:

Justice Breyer: "Now, suppose it's the same situation, but this person, the franchisee, being quite indefatigable and daring, finds a way of sneaking through the barbed wire that has been put up. And there is one pump they forgot, and there is a car that comes up and he serves that person. Now is it constructive eviction?"

Mr. O'Neil: "No -- That's where an objective standard is important..."

Justice Breyer: "Objective? You would say any sensible person would clear out immediately. There are lions and tigers roaming the gas station!"

Hypotheticals can be outstanding for their ability to clarify recondite principals. But as Justice Breyer has a tendency to show, revealing his stripes from 27 years as a law professor, those same principals taken to their extremes can add some much appreciated humor to an otherwise dry subject.

 From the oral argument for Perdue v. Kenny [10/14/09] concerning discretionary increases on lodestar compensation based on quality of performance (when judges are averaging how much a lawyer should be paid in a case, can they add a bonus for good work, and good results?):

Chief Justice Roberts: "maybe we have different perspectives. You think the lawyers are responsible for a good result and I think the judges are."

Mr. Clement: "And maybe your perspective's changed, Your Honor."

Justice Roberts: "maybe your perspective has changed too, Mr. Clement. Your argument is that, for $495 an hour you really can't get a good lawyer? You need to pay more than that?"

Mr. Clement: "Well, on that my perspective has changed, Your Honor."

When scholars debate the benefits for oral argument, it's quotes like these that make the case. Certainly, the representative's personal beliefs on compensation would never have entered into his legal brief. But because Justice Roberts had Clement in front of him, because he could solicit answers to questions seemingly unrelated to the legal merits- the justices were able to illuminate an area of the practice that could make a difference to the outcome of the case.