Articles Posted in Supreme Court

Today, the U.S. Supreme Court handed down its decision in the much-anticipated case Burwell v. Hobby Lobby Stores, Inc. (formerly Sebelius v. Hobby Lobby Stores, Inc., consolidated with Conestoga Wood Specialties Corp. v. Burwell and Autocam Corp. v. Burwell).

In a 5-4 opinion by Justice Samuel Alito, the Court held that the Religious Freedom Restoration Act (RFRA) permits a closely held for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by the federal Patient Protection and Affordable Care Act of 2010 (ACA), based on the religious objections of the corporation’s owners.

Here is some commentary tracking the progress of these cases before the Court’s ruling:

• Vikram David Amar and Alan Brownstein, Consistency in the Treatment of Religious Liberty Claims: Hobby Lobby and Town of Greece Viewed Side by Side (February 28, 2014)
• Vikram David Amar and Alan Brownstein, The Narrow (and Proper) Way for the Court to Rule in Hobby Lobby’s Favor (April 11, 2014)
• Michael Dorf, Supreme Court Oral Argument Shows How Religious Freedom Claims Have Become Ideologically Charged (March 26, 2014)
• Marci Hamilton, Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible (July 11, 2013)
• Marci Hamilton, The Insatiable Demand for Extreme Religious Liberty Under the RFRAs, Part I: Why Hobby Lobby Falls Outside RFRA’s Protections (March 6, 2014)
• Marci Hamilton, The Lessons of the New Mississippi RFRA that Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court (May 15, 2014)
• Marci Hamilton, What RFRA Has Wrought: Hobby Lobby, Onionhead, and the Perils of Religious Triumphalism (June 16, 2014)

Below are the relevant dockets and opinions in the lower courts:

Hobby Lobby

• U.S. District Court for the Western District of Oklahoma
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (November 19, 2012)
• U.S. Court of Appeals for the Tenth Circuit
  • Docket: Hobby Lobby Stores Inc. v. Sebelius
  • Opinion: Hobby Lobby Stores Inc. v. Sebelius (June 27, 2013)

Conestoga Wood

• U.S. District Court for the Eastern District of Pennsylvania
  • Docket: Conestoga Wood Specialties Corp. v. Sebelius
  • Opinion: Conestoga Wood Specialties Corp. v. Sebelius (January 11, 2013)
• U.S. Court of Appeals for the Third Circuit
• • Docket: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs.
  • Opinion: Conestoga Wood Specialties Corp. v. Sec’y U.S. Dep’t of Health & Human Servs. (July 26, 2013)

Here are some resources for the consolidated cases before the U.S. Supreme Court:

• Oral Argument and Transcript (via SupremeCourt.gov)
• Merit and Amicus Briefs Filed (via American Bar Association)
• Opinion: Burwell v. Hobby Lobby Stores, Inc.

By now, you’ve all read that Justice Antonin Scalia made a series of mistakes in the dissenting opinion of EPA v. EME Homer City Generation, L.P. The Supreme Court issued a corrected version of the opinion on its website. For more on the story, read the coverage in the WSJ Law Blog, the Volokh Conspiracy, or SCOTUSBlog. They’ll give you the background – this post will discuss publishing implications, and why it’s problematic that the Court doesn’t notify the public when they make revisions to opinions.

Here’s how the Supreme Court’s electronic publishing process works. The first version of the opinion, called the bench opinion, is released in XML format to a handful of publishers (the “Project Hermes” feed). Later that day, a PDF version – the “slip opinion” – is released on the Court’s website. The slip opinions may be further edited, and then the official opinions are published in the bound volumes as citable opinions.

The Supreme Court’s website issues the following disclaimer about the slip opinions found therein:

Caution: These electronic opinions may contain computer-generated errors or other deviations from the official printed slip opinion pamphlets. Moreover, a slip opinion is replaced within a few months by a paginated version of the case in the preliminary print, and–one year after the issuance of that print–by the final version of the case in a U. S. Reports bound volume. In case of discrepancies between the print and electronic versions of a slip opinion, the print version controls. In case of discrepancies between the slip opinion and any later official version of the opinion, the later version controls.

The Court occasionally issues new versions of slip opinions, but they don’t always notify the public when they do so.  Professor Emeritus of Cornell Law School and legal information expert Peter Martin has written about this, noting that most changes are for minor typographical errors. However, there have been instances where a significant change was made:

Far more recent history includes the removal of a lengthy footnote from the majority opinion in Skilling v. United States, 561 U.S. 358 (2010).  The slip opinion file now at the Court’s web site carries no notice of the revision beyond the indication in the “properties” field that it was modified over two weeks after the opinion’s filing date.  To see the original footnote 31 one must go to the CourtListener site or a collection like that of Cornell’s LII built on the assumption that a slip opinion distributed by the Court on day of decision will not be changed prior to its appearance in a preliminary print.

The changes made to Scalia’s dissent in EME Homer were arguably significant. They were also very public. As far as I can tell, it was Law Professor Richard Lazarus who first discovered the error. He blogged about it, it was picked up by national news, and that’s why we know that the change was made. The Supreme Court notified Professor Lazarus of the change, but there is no mention of it on their site. They simply swapped opinions.

Would televising U.S. Supreme Court proceedings promote transparency in the country’s highest legal institution and help generate public confidence in the judiciary, or would putting the court’s oral arguments on TV or the Internet demean the institution?

These and other questions were raised in a Senate Judiciary Committee hearing this morning on “Access to the Court: Televising the Supreme Court.”