Stuart Gerson

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The day after the Gallup organization reported that public confidence in the Supreme Court has reached new lows, the Court has added what, to many, will be more fuel to that fire. The long-awaited, hotly contested, and divisive opinion in Dobbs v. Jackson Women’s Health Organization has officially come down and, given reactions to the premature release of a draft of Justice Alito’s majority opinion, the public’s expectations on both sides of the abortion debate have been realized.
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Continue Reading Dobbs Overrules Roe v. Wade: SCOTUS Today

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I’m currently in the wilds of Alaska, learning about the training of sled dogs. Nevertheless, word of the Supreme Court’s five most recent decisions has traveled northward. While none of these decisions is earthshaking, they are not uninteresting or unimportant, especially to those like health care and employee benefits lawyers.
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Continue Reading Five More Opinions and Justice Gorsuch Shows an Independent Streak: SCOTUS Today

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On June 15, the Court decided five cases and dismissed a sixth. A case of great importance to health care lawyers, regarding the availability of judicial review of Medicare rates for pharmaceuticals, and another of great importance to labor and employment lawyers, holding that a significant portion of the California Private Attorneys General Act’s (PAGA’s) delegation of state enforcement power is preempted by federal law, lead the pack.…

Continue Reading Six Down, 24 to Go: An Important Day for Health Care and Employment Lawyers – SCOTUS Today

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The Court has had a busy day, having decided cases of significance to litigators and interest groups, but none is the blockbuster decision in societally divisive matters that the general public has been awaiting. In short, this is a business-as-usual day, with opinions sometimes showing broad consensus on the Court, but with some not-unexpected dissents.…

Continue Reading A Cluster of Decisions on Federal Procedure, Immigration, and Arbitration, but Plenty to Go: SCOTUS Today

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Notwithstanding the fact that, as we approach the end of the term, the Court still had 30 cases to decide as of Wednesday morning, June 8, the day’s count has only been reduced by one. So, expect a flurry of cases with the most controversial of them (think firearms and reproductive rights) perhaps coming down at the end.…

Continue Reading Court Refuses to Extend Bivens to Excessive Force and Retaliation Claims: SCOTUS Today

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The Court has started the week with three decisions emphasizing textual readings, two of them unanimous and a third drawing Justice Kagan into the majority with the Court’s six nominal jurisprudential conservatives.…

Continue Reading A Peaceful Resolution of Cases Concerning Arbitration, Medicaid, and Bankruptcy—All Involving Textual Analysis: SCOTUS Today

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Despite a large list of argued cases pending decision, the Court decides just two of them today—neither of them Dobbs.…

Continue Reading Court Holds That Judges Can’t Invent Rules Governing Arbitration Waiver and Makes It Harder for Prisoners to Show Ineffective Assistance: SCOTUS Today

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It is fair, I think, to say that a substantial majority of those who heard the argument in the case of Federal Election Commission v. Ted Cruz for Senate doubted that, irrespective of whatever they might think of Ted Cruz, it was highly likely that he and his campaign organization would prevail in challenging the federal campaign finance law limitation on the use of post-election funds to repay a candidate’s personal loans as violative of the First Amendment rights of candidates who want to make expenditures on behalf of their own candidacy through personal loans. But, by a six-three division between the Court’s judicial conservatives and liberals, that is precisely what has occurred. Those who criticize the Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), likely will feel much the same way about the Cruz case.…

Continue Reading Divided Court Supports Ted Cruz’s Campaign Debt Reimbursement but Denies Would-Be Citizen Chance to Correct Bureaucratic Error: SCOTUS Today

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Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment’s Establishment Clause and an individual’s or group’s right of free speech, we find this morning’s unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:
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Continue Reading When Government Does Not Speak, It May Not Discriminate on the Basis of Religion as to Access to a Public Facility: SCOTUS Today

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Cummings v. Premier Rehab Keller, P.L.L.C. is a very important case for employment and benefits practitioners. The Court, divided 6-3 along conservative/liberal lines, has held that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act. In fact, the case affects potential results under four statutes that Congress has enacted pursuant to its Spending Clause authority that prohibit recipients of federal funds from discriminating with respect to matters including race, color, national origin, sex, disability, or age. See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116. The Court previously held that victims of intentional violations of these statutes may bring private lawsuits seeking to recover, among other things, compensatory damages. Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992). Today, the Court holds that the damages available under these statutes cannot include compensation for emotional suffering.
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Continue Reading The Court Rules Out Emotional Distress Damages Under Anti-Discrimination Statutes: SCOTUS Today