Tag Archives: Bankruptcy

Supreme Court Potpourri for $200

Normally, at this time of the term, there is a lot to talk about.  But this year’s docket is weird in having a lot of associated cases.  As such, the meaning of one case is not clear until you have all of the related cases.  Some terms, you will get all of the related cases on the same day.  But, in other years, like this year, the release seems to be like that leaky sink faucet . . . drip, drip, drip.

This past week, we had opinions in nine cases out of the twelve/thirteen cases left.  But many of them are related to the three/four cases left.  We had three big administrative law cases, but there is one administrative law case left for an opinion tomorrow.  We had one opinion on Free Speech and social media, but there are the two cases (and one or two opinions) left for tomorrow.  And we had cases on the charges against the January 6 defendants (and a bribery case that is also significant) but we have the presidential immunity case that will put a potential gloss on both of those decisions.  So that covers six of the nine opinions from this past week.  What’s left are the emergency abortion case, the Purdue Pharma bankruptcy case, and a municipal ordinance on homeless individuals sleeping on public property.

The abortion case, Moyle v. United Statesinvolves the conflict between Idaho’s rather draconian abortion law (which apparently only permits abortions to save the life of the mother) and the federal law on Medicaid which requires hospitals that receive Medicare to provide medically appropriate treatment (including to save the health of the patient).  Oversimplified the question is whether the Idaho statute in some way controls what is medically appropriate in Idaho or does the federal law mandate that doctors provide abortions when medically necessary even if the abortion would otherwise violate Idaho law.  The problem is that Idaho brought this case on an emergency stay request from the lower court order granting a temporary injunction and was one of the rare cases in which the U.S. Supreme Court took an appeal before the appellate court had considered the issues.  It became clear during argument that the theories of the parties on how these two statutes relate were still evolving.  So the majority of the Supreme Court decided to “dismiss as improvidently granted,” or, in plain English, the majority said that they made a mistake in taking the case as it was not (yet) ready for Supreme Court review.  While the judgment of the court is simply a one paragraph order returning the case to the Ninth Circuit for the initial appellate review, there were multiple opinions related to that order.    Justice Kagan, in an opinion joined by Justice Sotomayor, finds that it was inappropriate to take the case but suggests that Idaho is unlikely to prevail on its position that its law takes precedence over the federal statute.  Justice Barrett, joined by the Chief Justice and Justice Kavanaugh emphasized how the positions of the parties had changed since the Supreme Court took the case with the federal government disavowing the potential interpretation of its position on which Idaho based their claim for relief and Idaho relaxing what needs to be shown to support an emergency abortion.  As such, Justice Barrett felt that the need for the Supreme Court to address the novel claims on an expedited basis no longer existed.  The bottom line of these five justices is that there is no need to stay the lower court ruling and that the case should return to the lower courts to address the new positions of the parties.  Justice Jackson wrote a separate opinion agreeing that the stay should be vacated but arguing that the Supreme Court should resolve the merits now rather than sending the case back to the Ninth Circuit.   (While it is possible, and significant as far as who is writing the presidential immunity case, that Justice Jackson’s opinion started out as the majority opinion, I tend to doubt it from the text of the opinions.  Justice Jackson’s opinion does not read like an almost majority opinion, and the reasons for dismissing the case are not new.  Justice Alito’s dissent (joined by Justice Thomas and Justice Gorsuch) is along the lines of “how dare the Biden Administration use the law to frustrate our desire to allow stringent anti-abortion laws.” Continue Reading...

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Supreme Court Term 2023-24 — Two Weeks to Go (?) Update

This past week, the U.S. Supreme Court went from one opinion day (Thursday) per week to two opinion days (Thursday and Friday).  But the Supreme Court only issued three opinions on each day — four of the six have some political significance and so there will be posts on them later.  There are still 23 cases left to be decided (with 21-23 opinions) between them.  Thus unless, the pace of opinions picks up (and maybe 4 per day is likely), the Supreme Court needs at least seven opinion days between now and June 28.  The next opinion day is this Thursday.  While it is more likely than not that opinions will also be released on Friday, that would still leave four or five opinion days for the last week in June.  Maybe the last opinion day will be July 1 or July 2, but the Supreme Court tries really hard to leave town before July 4.

With this week’s opinion release, the dust has started to settle on who likely has what opinion.  Until opinions are released, such guesses are who likely initially got the opinion.  While not common, splits in how to decide a case and justices changing their minds as they dig further into writing an opinion can result in opinions being reassigned.  These predictions are based on the Supreme Court’s practice of trying to maintain a balanced workload — both within each month’s argument session and across the term as a whole.

At this point, enough opinions have been released to identify who still has opinions left to write from the first five months of arguments with two question marks.  The two question marks are two sets of companion cases — one from January in which two cases seek to overturn Chevron deference (a doctrine created by Justice Scalia that has courts deferring to administrative agencies over the proper interpretation of ambiguous regulatory statutes) and the other from February in which two cases involve state attempts to regulate interstate social media websites.  For both sets, it is possible that the Supreme Court will issue separate “authored” (i.e. the justice writing is identified) or that the Supreme Court will issue one “authored” opinion in one case with a brief per curiam (i.e. the justice writing is not identified) in the second case or that the Supreme Court will issue one opinion covering both cases.  If only one authoried opinion is released in both sets of cases, then things fall more smoothly in terms of the number of opinions per justice through February.  If either set has a second authored opinion, that adds an additional opinion for some justice making things more uncertain. Continue Reading...

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Supreme Court Update — Appropriations and Redistricting

We are at that point of the Supreme Court terms when we are waiting for the other shoe to drop.  All the arguments and briefing for the term is done, and what is left is for the opinions to slowly drip out.  For now, the Supreme Court is only holding one opinion day per week.  That will be changing soon.

In May, we tend to get the older cases (October, November, and December) that have multiple opinions and newer cases (March and April) that were “easy” unanimous decisions.  As we get later into June, we will get the 5-4 decisions from February, March, and April, and the number of cases will pick up.

So far, in May, there have been three opinion days (with one more set for this Thursday).  On those opinion days, we have gotten, two, three, and three opinions.  With eight opinions down, we still have approximately thirty-five opinions (approximately because there are a few cases that could be consolidated) left to come over the next five weeks.  That number is why we are likely to get multiple opinion days per week in the latter part of June as we need nine to twelve opinion days. Continue Reading...

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Supreme Court Preview — October Term 2023 — Part 2

Last week, we took a look at the cases that are set for argument in October and November.  This week, we look at the cases that have been accepted for argument, but have not yet been set for an argument date.  These cases will probably be heard in December or January.

The primary job of the Supreme Court (reflected in the criteria that it lists on its rules for what applicants need to demonstrate before the Supreme Court will accept review) is to assure that courts uniformly interpret and apply federal law.  As such, every case is important to some groups of people.  But the focus in these posts are on those cases which could have a political impact.

First on this list is Muldrow.  This case involves Title VII — the law barring discrimination based on race and gender in employment.  The issue in this case is “transfers.”  Basically, by transfer, we are talking about the reassignment of employees from one job to another job.  Generally, Title VII only applies to “adverse” actions.  As such, the issue is what type of damage/impact does the employee have to show.  At least the argument from the employer is that if the transfer is truly a lateral move with no impact on pay or promotion opportunity, then there is no discrimination.   Obviously, there are other things that impact what qualifies as a desirable job.  Here, the employer is a police department and the transfer is from a detective-type squad to a patrol squad.  Technically, the ranks are equal, but there are reasons why a detective squad is a preferred position.   Needless to say, this case could either indicate an approach to Title VII that would allow it to broadly apply to transfer decisions or an approach in which transfers to nominally equivalent positions will rarely implicate Title VII.  From a practical standpoint, there seems something wrong with an interpretation that would, for example, let an employer assign most women to a night shift and most men to a day shift on the theory that the positions are equivalent, but I would not put such a myopic view past some of the current justices. Continue Reading...

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A Partial Victory for Native Americans

The history of the United States is full of broken promises to Native American.  For a rather long period of time (in a pattern repeated in other places like Canada and Australia), part of the attempt of the European settlers to eliminate Native Americans was a practice of, for all intents and purposes, kidnapping children and placing them either in boarding schools or adopting them out to White parents to be raised without any knowledge of their ancestral culture.

During the Civil Rights era, several steps were taken to remedy these past sins.  In part, the federal government strengthened the powers of tribal governments.  Congress also passed the Indian Child Welfare Act to prevent a repeat of the efforts of some groups to break the tribes by stealing their youngest members.  Of course, in the U.S. no law stays the same forever, and interest groups always try to push back against the laws that are on the books.  Ultimately, these disputes end up at the Supreme Court, and recent terms have seen an ever growing number of cases related to Native Americans.  This term was no different, and this week saw the U.S. Supreme Court decide two cases related to Native Americans.

The “minor” case — Lac du Flambeau Band of Lake Suprerior Chipewa Indians vs. Coughlin — involved the intersection between tribal government and bankruptcy law.  Like other governments, sometimes an individual who owes money to a tribal government will enter bankruptcy.  If a person owes money to a private business, that business is only allowed to take further steps to collect its debt through the bankruptcy court.  In this case, the debtor tried to have the bankruptcy court enforce the stay against the tribe.  Normally, governments (including the tribes) have immunity from being sued, but the bankruptcy code contains some exceptions.  By a 7-1-1 vote, the Supreme Court found that tribal governments are inclcuded in the limited waiver of immunity contained in the bankruptcy code.  The two who did not join the majority opinion were Justice Thomas and Justice Gorsuch for very different reasons.  Justice Thomas agreed with the majority that the tribe lacked immunity from being sued because the tribe was engaged in “commerical” rather than “governmental” activity and, therefore, would not have had immunity even without the provision in the bankruptcy code waiving that immunity.  Justice Gorsuch, however, would have found no waiver of immunity.  In this case Justice Gorsuch continued his pattern of being one of the foremost defenders of the tribes on the Supreme Court.  While this case was a “loss” for the tribes, it was a loss because the Supreme Court treated tribal governments as being equal to other governments. Continue Reading...

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The Supreme Court and Puerto Rico — Part Two

As noted in Part One, the Supreme Court had two cases involving Puerto Rico this term.  The first, decided, last Thursday was the more philosophical of the two cases — focusing on Puerto Rico’s status under the Constitution.  The ink was barely dry on that opinion when the Supreme Court issued the second opinion — dealing with the more immediately practical question of how bankruptcy law applies to Puerto Rico’s debt.

As a general matter, the Constitution gives Congress the power to enact a “uniform” law governing bankruptcy — a process that allows private individuals, businesses, and even government to restructure (and in some cases partially reduce) their debts.  As the fact that it is one of the enumerated powers in the original text of the Constitution shows, bankruptcy is not a new concept and predates the United States.  The Bankruptcy Code (Title 11 of the United States Code) is divided into chapters with different chapters applying to different entities and the circumstances of that entity — one for businesses that just want to wind up their affairs, one for businesses that want to try to continue, one for private individuals, and one (which applies here) governing the debts of municipalities (Chapter 9).

Continue Reading...

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