Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Monday morning read:
The Supreme Court on Tuesday denied a request from Oklahoma to reinstate over $4 million in funding for family-planning projects while the state’s challenge to the termination of the grant by the federal Department of Health and Human Services continues in the lower courts. Federal law requires states to provide abortion counseling and referrals as part of the funding parameters, which Oklahoma law now bars.
The denial came in an unsigned order
, without any explanation of the court’s reasoning. Three justices – Clarence Thomas, Samuel Alito, and Neil Gorsuch – indicated that they would have granted the state’s request.
The challenge arises under Title X of the Public Health Service Act of 1970, which provides funding for family planning programs throughout the country, targeting lower-income and adolescent patients. To be eligible for grants from the Title X program, family-planning projects must offer pregnant patients counseling about prenatal care, adoption, and abortion, as well as referrals for those services if requested.
The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization revived an Oklahoma law that both bans abortion except to save the life of the mother and makes it illegal to advise someone to obtain an abortion. With that state law in place, Oklahoma objected to Title X’s requirement that programs in the state offer counseling and referrals for abortions.
HHS offered the state an alternative: Providers could give patients seeking pregnancy counseling or referrals the telephone number of a national call-in hotline instead. When Oklahoma rejected that option, HHS terminated the state’s grant.
Oklahoma went to federal court, challenging the termination and seeking to require HHS to renew the grant for 2024-25. The district court denied the state’s request for temporary relief, and the U.S. Court of Appeals for the 10th Circuit upheld that ruling.
Oklahoma came to the Supreme Court on Aug. 5, asking the justices to step in by Aug. 30. The state argued first that requiring family-planning projects to provide counseling and referrals for abortion violates the Constitution’s spending clause, which gives Congress the power to impose and collect taxes. Title X, the state contended, does not provide the kind of clear and unambiguous notice of those requirements that the Supreme Court has said is required when Congress is acting under its spending clause power.
Oklahoma next asserted that the counseling and referral requirements violate the Weldon Amendment, a federal law that bars HHS funding from going to federal agencies and programs or state or local governments that “discriminate” against health-care providers that decline to (among other things) provide referrals for abortions. That amendment, the state insisted, “clearly protects health care organizations from being forced to provide abortion referrals.”
Oklahoma emphasized that the county health department that receive the Title X funds “are part of the frontline of health care in Oklahoma.” “Depriving those communities of Title X services would be devastating,” the state told the justices.
Representing the Biden administration, U.S. Solicitor General Elizabeth Prelogar urged the justices not to intervene in the dispute, downplaying it as one with “modest practical stakes.” “This case,” she observed, involves only “a single discretionary grant to a single state agency, and the amount of that grant ($4.5 million) is a tiny fraction of the state agency’s budget.”
But in any event, Prelogar continued, there is no merit to Oklahoma’s argument that the counseling and referral requirements violate the Constitution’s spending clause. Congress, she wrote, “routinely conditions federal grants on compliance with requirements contained in agency regulations, and this Court has repeatedly upheld such requirements.”
Nor do the requirements violate the Weldon Amendment, Prelogar added, because state administrative agencies like the Oklahoma State Department of Health are “not protected under” the amendment. Moreover, she noted, HHS had suggested an accommodation that would have allowed providers to give patients a hotline number, rather than refer them for an abortion.
On Aug. 27, Prelogar told the court that the U.S. Court of Appeals for the 6th Circuit had recently upheld a district court’s denial of a request for a preliminary injunction that would require HHS to issue a $7 million grant to Tennessee. Like Oklahoma, HHS had indicated to Tennessee that its Title X project could fulfill its obligations by providing patients with the telephone number for a national call-in hotline. The 6th Circuit, Prelogar stressed to the justices, “expressly agreed with the Tenth Circuit’s Spending Clause holding.”
But Oklahoma countered that Tennessee had not raised the Weldon Amendment as a separate reason to order HHS to reinstate the grant. By contrast, Oklahoma noted, “the Weldon Amendment has been squarely presented.”
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:
Justice Samuel Alito did not report any reimbursements for travel-related expenses in 2023, according to a financial disclosure form made public on Friday
. The form also revealed that Alito accepted concert tickets worth $900 from a German princess.
Each justice is required to file a financial disclosure every year by May 15 with the Administrative Office of the U.S. Courts, which makes the forms available online in early June
. However, the justices can receive an extension of up to 90 days to submit the forms, as Alito did this year. The disclosures are relatively opaque, and they are intended to provide information about potential conflicts of interest and the justices’ compliance with ethical standards rather than snapshots of the justices’ wealth.
Alito’s form indicated that he holds three honorary positions, two of which intersect with Catholic causes and scholarship. He serves as an honorary chair of the advisory council for the Center for the Constitution and Catholic Intellectual Tradition
, a program at the Catholic University School of Law that “promotes scholarship that explores the relevance of the Catholic intellectual tradition for American constitutionalism.”
And along with his wife, Martha-Ann, Alito serves as a member of the honorary board for the Franciscan Monastery for the Holy Land
, a Washington, D.C., monastery “whose purpose is to support the Holy Land, its people, and its holy sites.” The monastery also has more than 50,000 visitors per year to see its gardens and “full-sized replicas of shrines from the Holy Land.”
Alito serves as an honorary advisory board member for the Bolch Judicial Institute
, a program established at Duke Law School in 2018 to (among other things) create educational opportunities for sitting judges in the United States
Alito reported two trips for which he received transportation, food, or lodging in 2022. He received lodging and meals during a trip to Duke University to teach a class, and he was reimbursed for a four-day trip to Rome paid for by Notre Dame Law School.
Interest in the justices’ financial disclosures intensified last year in the wake of reporting by ProPublica about luxury travel (among other things) that was not included in several financial disclosures. In April 2023, ProPublica reported
that a Dallas billionaire, Harlan Crow, had repeatedly hosted Justice Clarence Thomas on cruises on his super-yacht and private-jet travel. ProPublica also reported last year that Alito did not report a 2008 fishing trip to Alaska in which he flew on a private jet chartered by billionaire Paul Singer. Singer’s hedge fund came before the court several times in the years that followed, ProPublica noted, but Alito did not recuse himself.
Alito reported one gift in 2023: concert tickets worth $900 from Gloria von Thurn und Taxis. A recent article in Tatler
, the British high society magazine, indicated that von Thurn und Taxis, a German princess, is best known these days “as a Catholic activist and proselyte.” The form does not indicate who played at the concert.
Alito continues to maintain a robust investment portfolio that contains mutual funds but also shares in individual companies – including Molson Coors, 3M, Abbott Laboratories, Boeing, Caterpillar, and Dow – that sometimes appear at the court.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Tuesday morning read:
The Supreme Court on Wednesday temporarily barred the Biden administration from implementing one of its latest efforts to provide debt relief to Americans with student loans. In a brief unsigned order
, the justices declined to allow the Department of Education to put into effect a July 2023 rule, known as the SAVE Plan, intended to provide debt relief for lower-income borrowers while challenges to the rule continue in the lower courts.
There were no dissents recorded from Wednesday’s order, which instructed the U.S. Court of Appeals for the 8th Circuit, which is currently considering the government’s appeal, to act quickly.
In a second order issued on Wednesday
, the justices turned aside a request from a different group of states to bar the Biden administration from implementing the July 2023 rule. That brief unsigned order pointed to a letter from lawyers for the states indicating that they did not need the Supreme Court to step in as long as a related order by the 8th Circuit remains in place – which, with Wednesday’s order, it now does.
Either or both cases could return to the Supreme Court once the federal appeals courts rule on the merits of the dispute.
The Department of Education issued the rule at the center of the dispute last year after the Supreme Court quashed an effort by the Biden administration to cancel up to $400 billion in student loans in the wake of the COVID-19 pandemic. In that decision, Biden v. Nebraska, a divided court ruled that the Biden administration had overstepped its authority when it announced the debt relief program, which relied on the HEROES Act, a law passed in the wake of the Sept. 11 attacks that gives the secretary of education the power to respond to a national emergency by “waiv[ing] or modify[ing] any statutory or regulatory provision” governing the student-loan programs so that borrowers are not worse off financially because of the emergency.
The 2022 debt relief program, Chief Justice John Roberts wrote for the majority, did not waive or modify the existing student loan laws, but instead “created a novel and fundamentally different loan forgiveness program.” The 2022 debt relief program, Roberts continued, also ran afoul of the “major questions” doctrine, which is the idea that if Congress wants to give an administrative agency the power to make decisions of vast economic or political significance, it must say so clearly. In this case, Roberts said, the HEROES Act did not authorize the debt-relief program at all, much less clearly.
The Higher Education Act of 1965 requires the Department of Education to offer student loan borrowers repayment plans tailored to their incomes. The SAVE Plan, announced in July 2023, is a new repayment plan intended to provide debt relief for low-income borrowers. Among other things, the plan modifies how a borrower’s “discretionary” income (which is used to determine the repayment amount) is calculated, allows borrowers to pay 5%, rather than 10%, of that discretionary income toward their undergraduate loans, and shortens the repayment periods for borrowers whose original balances were smaller.
Two different challenges, both filed by groups of Republican-led states, followed. A federal appeals court in Denver allowed the government to implement most of the plan, while a different appeals court in St. Louis blocked the government from implementing the major provisions of the plan.
Eleven states brought the first challenge in March of this year. A federal district court in Kansas allowed three states – Alaska, South Carolina, and Texas – to continue the challenge to the SAVE Plan. It found that they had “just barely” established a legal right to sue, known as standing, because each of them has state agencies that service federal loans and will lose money as a result of the plan.
The district court entered an order barring the Biden administration from implementing the provision that reduced the percentage of discretionary income used to calculate payments from 10% to 5%, and it also blocked other provisions of the rule that had not yet taken effect. It declined, however, to block the two other provisions of the July 2023 rule because they had already gone into effect, and so the challengers could not contend that they had been permanently harmed by their implementation.
On June 30, the U.S. Court of Appeals for the 10th Circuit temporarily put the district court’s order on hold, and it agreed to fast-track the government’s appeal (as well as the states’ appeal of the portion of the district court’s order that ruled against them) and heard arguments on Aug. 21. (It later temporarily discontinued review of the appeal in light of the 8th Circuit’s order.)
The states came to the Supreme Court on July 5, asking the justices to reinstate the district court’s order and grant review without waiting for the court of appeals to weigh in. They argued that the justices “will rarely see a more clear-cut case where the Court is likely to grant” review and rule for the states.
In a letter to the justices on Aug. 10
, Texas Solicitor General Aaron Nielson urged the court to either take the very unusual step of ordering the district court to strike down the SAVE plan now, without any additional briefing, or at the very least “set this case for argument.”
The second challenge to the SAVE Plan was filed by seven states in Missouri in April of this year. A federal district judge on June 24 blocked the provision of the rule that shortens the timelines for loan forgiveness for borrowers whose original loan balances were smaller. But on Aug. 9, the U.S. Court of Appeals for the 8th Circuit issued an order that temporarily put most of the SAVE Plan on hold while that appeal continues.
The Biden administration came to the Supreme Court on Aug. 13, asking the justices to lift the 8th Circuit’s order and allow it to implement most of the SAVE Plan. The filing by U.S. Solicitor General Elizabeth Prelogar characterized the plan as a “straightforward exercise” of the Department of Education’s power to set the “parameters of income-contingent repayment plans.” To invalidate the plan, Prelogar contended, the court of appeals “relied almost entirely on an (unofficial and inaccurate) estimate of the rules aggregate cost” – an analysis, she argued, that was a “caricature of the major-questions doctrine, which is supposed to be a tool for discerning Congress’s intent using text and context,” rather than “a license for reflexive judicial veto of any policy a court deems too expensive.”
Prelogar suggested that if the justices do not lift the 8th Circuit’s order, they might instead want to hear oral argument on the merits of the dispute, fast-tracking the case for review in November.
The justices rejected both of Prelogar’s suggestions in their brief order on Wednesday, instead turning down the request to allow the Department of Education to implement the July 2023 rule in a brief order. Although the court did not provide any explanation for its decision, it noted that it “expects that the Court of Appeals will render its decision with appropriate dispatch.”
The student loan dispute is one of several now pending on the court’s emergency appeals docket, sometimes known as the “shadow docket.” The justices are also currently considering (among others) requests to reinstate federal grants for family planning services to Oklahoma, which lost the funding after it refused to provide referrals for abortions to patients in the state, and to temporarily block the Environmental Protection Agency from enforcing a rule regulating emissions from power plants.
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:
Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:
