Indiana University experts comment on upcoming Supreme Court decisions

  • June 22, 2015


BLOOMINGTON, Ind. -- Indiana University faculty experts are available to speak to news media about several decisions that the U.S. Supreme Court is expected to issue this month. Issues before the court that the experts address include:

Same-sex marriage

The Supreme Court tossed out a key part of the federal Defense of Marriage Act in 2013. Lower federal courts have since applied the reasoning of that decision to invalidate more than a dozen state-level bans on same-sex marriage, which is now legal in 37 states. Obergefell v. Hodges and two other cases now before the court may settle the question for the entire country.

Steve Sanders, associate professor of law in the IU Maurer School of Law in Bloomington, believes it is likely that a majority of the justices will hold that marriage equality is required by the U.S. Constitution.

“The real questions of interest are what legal rationale the court will apply and how the various justices might align themselves with the various constitutional theories that have been suggested for striking down these state bans,” Sanders said.

For example, Sanders said, Chief Justice John Roberts, who usually votes with the court’s conservatives, may be reluctant to join an anti-marriage-equality opinion that could be seen as being on the wrong side of history.

“The chief justice showed interest at oral argument in the idea that anti-gay-marriage laws might be a form of sex discrimination, an area where the Constitution provides relatively robust protection,” Sanders said. “He might also get on board with the idea that State A must recognize a same-sex marriage performed in State B, even if State A shouldn’t be required to license such marriages.”

Sanders’ work focuses on the Constitution’s Equal Protection Clause and on issues affecting same-sex couples and their families at the intersection of constitutional law, conflict of laws, federalism and family law. He also has extensive experience as a practicing lawyer briefing and arguing before courts, and he co-authored an amicus brief in support of marriage equality for the Human Rights Campaign. He can be reached at 734-904-2280 or Top

Death penalty by lethal injection

Following botched executions in Oklahoma, Ohio and Arizona, death-row inmates in Oklahoma are challenging that state’s method of administering the death penalty: lethal injection using a series of three drugs in succession. The case is Glossip v. Gross.

Maurer School of Law professor Jody Madeira, whose research includes the intersection of law and emotion in criminal and family law, said authorities are eager for clearer guidance on whether certain methods of administering the death penalty violate the Constitution’s ban on cruel and unusual punishment.

She said a ruling in the case could be especially helpful if it clarifies a key element of a 2008 court decision on lethal injection: whether inmates who challenge the method of execution must point to an alternative drug that would do the job more effectively or with less pain.

“Courts have told states to select more effective lethal injection procedures but given them no guidance on how to do that,” Madeira said. “And because markets for execution drugs have shut down one by one, this creates the ideal conditions for organizational experimentation and mistake. So the Supreme Court could potentially provide needed guidance on this very complex and ethically problematic issue. Even a narrow ruling would be helpful guidance.”

Madeira, professor of law and Louis F. Niezer Faculty Fellow in the Maurer School of Law, is the author of the book “Killing McVeigh: The Death Penalty and the Myth of Closure” and has written widely on responses of victims' families to the death penalty. To speak with her, contact Ken Turchi at 812-856-4044 or or James Boyd at 812-855-0156 or Top

State redistricting commissions

Arizona voters adopted a ballot initiative in 2000 creating an independent commission with responsibility for drawing congressional and legislative district boundaries. But the state legislature has fought back in recent years, arguing that only it can create the districts. The resulting dispute, Arizona State Legislature v. Arizona Independent Redistricting Commission, is now before the court.

Gerard Magliocca, a constitutional law expert at the IU McKinney School of Law in Indianapolis, said removing districting authority from the legislature is one way to address the problem of partisan gerrymandering. In Indiana, the legislature this year created a study committee to examine alternatives to the current system, in which lawmakers draw congressional and legislative district maps.

“The parties are mainly arguing over the meaning of Article 1, Section 4 of the Constitution, which states: ‘The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,’” Magliocca said. “Does this provision mean that a state cannot give districting power to an independent commission without the legislature’s consent, which is what Arizona did with a constitutional referendum in 2000?

“If the court says yes, then any state constitutional provision that deals with voting in congressional elections could be vulnerable to attack.”

Magliocca is the Samuel R. Rosen Professor of Law at the McKinney School of Law. To speak with him, contact Rebecca Trimpe at 317-274-8019 or Top

Spider-Man, intellectual property and innovation

Kimble v. Marvel Enterprises, a dispute involving a Spider-Man toy that shoots foam string, raises the question of whether the Supreme Court should revisit a controversial 1964 decision that said royalty payments couldn’t continue beyond the expiration date for a patent.

Kimble created the Spider-Man toy and assigned its patent to Marvel in exchange for a share of sales revenue. But under the guidance created by the court in Brulotte v. Thys Co., the payments would have to stop.

Mark Janis, an intellectual property expert at the Maurer School of Law who submitted a brief in favor of Kimble, said it’s time for another look at Brulotte v. Thys Co., which creates disincentives for licensing inventions and harms innovation.

“As cases like Kimble illustrate, the Brulotte rule hinders innovation in two important ways, neither recognized in 1964,” he said. “First, the rule discourages flexibility in licensing patents, frustrating the public interest in promoting the commercialization of patented inventions. Second, the rule favors keeping inventions secret, frustrating the public interest in their disclosure.”

He said the Supreme Court should reject the Brulotte rule and permit parties’ flexibility to arrange payment terms that suit their needs. Such an approach, he said, is far better suited to serve the public interest in promoting the exploitation and disclosure of inventions.

Janis is the Robert A. Lucas Chair of Law and director of the Center for Intellectual Property Research at the Maurer School of Law. To speak with him, contact Ken Turchi at 812-856-4044 or or James Boyd at 812-855-0156 or Top

Affordable Care Act

The King v. Burwell case challenges the payment of subsidies to people who buy health insurance on the federal exchange established by the Affordable Care Act. The plaintiffs argue the subsidies are illegal because the law refers to exchanges “established by the state.” Supporters of the law say it clearly intended to allow the federal government to establish an exchange.

Thirty-four states, including Indiana, chose not to establish their own insurance exchanges. If the court sides with the plaintiffs, 7.5 million people in those states could lose their subsidies, making health care coverage unaffordable.

Concern about ‘death spiral’

If the court were to rule the federal exchange isn’t authorized, states might act quickly to create their own exchanges, said Kosali Simon, a professor of health economics and policy in the School of Public and Environmental Affairs at IU Bloomington. But that wouldn’t necessarily avert any problems.

“We are concerned not only that the size of the federal marketplaces would shrink if they lose subsidy status, but also that those remaining in the insurance pools would have high expenses and cause premiums to rise,” she said. “Because marketplaces have to charge the same premium to the sick and the healthy, this means that even those healthy customers currently buying coverage without subsidies will see their premiums rise through the adverse selection ‘death spirals’ that result when insurance markets disproportionately include the sickest, most expensive customers.”

Simon said, however, that interesting parallels can be drawn between the Affordable Care Act exchanges and Medicare Part D, the drug benefit plan that took effect in 2006.

“Drug coverage for seniors is thought to be another example of a market that could not exist on its own because of adverse selection,” she said, “but its large subsidy -- approximately 75 percent -- through Medicare Part D financing makes it possible to have what is thought to be a fairly well-functioning market, adverse selection-wise.”

Simon’s research involves applying economic analysis in the context of health insurance and health care policy. She has published research on the impact of the Affordable Care Act on insurance coverage, labor markets and health care use, including mental health treatment and emergency department visits. To speak with her, contact Jim Hanchett at 812-856-5490 or

Federalism, revisited

Ironically, the emphasis on states’ rights that helped ACA opponents win a victory against aspects of the law in 2012 may end up defeating this latest challenge, said Beth Cate, a professor of law and public affairs at IU Bloomington.

“In 2012, ACA opponents persuaded a majority of justices -- including Chief Justice Roberts and Justice Kennedy, the two votes likely in play with this current challenge -- that letting Congress condition existing Medicaid funds on greatly expanding eligibility would gut federalism and unlawfully coerce states to do what the federal government wants,” Cate said.

She said a majority of justices may conclude that it would be similarly coercive -- and unconstitutional -- for Congress to effectively force states into establishing their own exchanges by withholding subsidies from federally run exchanges and sending those states’ insurance markets into "death spirals."

“Justice Kennedy emphasized this concern at oral argument, and it could lead him and others to interpret the statute to authorize subsidies on the federally run exchanges and avoid this Constitutional problem,” Cate said.

"Constitutional avoidance" is a basic rule of statutory interpretation; Roberts invoked it in 2012 when voting to uphold the Affordable Care Act’s individual mandate as a tax.

Cate said such an outcome would be ironic for states like Indiana which have argued that subsidizing insurance on the federally run exchanges undermines federalism by eliminating a state’s ability to choose whether to expose its employers to ACA penalties. Those penalties kick in if an employer doesn’t offer relevant coverage and an employee buys subsidized insurance on the exchange.

Cate is an associate professor in the School of Public and Environmental Affairs. Her expertise includes intellectual property law, data privacy and security, research regulation and constitutional law. To speak with her, contact Jim Hanchett at 812-856-5490 or

‘Whole text’ vs. legislative purpose

Justices are on record as insisting that the whole text must be read to interpret a statute, said William Popkin, a scholar on tax policy and legislation at the Maurer School of Law. But the trouble is, no one knows exactly what that means, in part because a “whole text” approach may require looking at evidence beyond the text to understand the purpose of the legislation.

“King v. Burwell will be a textbook example of drawing the line between relying on the whole text versus relying on legislative purpose,” he said. “Those of us who teach statutory interpretation will be looking closely at how Justice Scalia and the other justices who are generally considered textualists will draw that line.”

Popkin, the Walter W. Foskett Emeritus Professor of Law, is the author of the widely used texts “Fundamentals of Federal Income Tax Law” and “Materials Legislation: Political Language and the Political Process.” To speak with him, contact Ken Turchi at 812-856-4044 or or James Boyd at 812-855-0156 or

Congress could fix problem

A Supreme Court ruling to invalidate federal exchange subsidies under the Affordable Care Act would put the ball back in Congress’ court, according to David Orentlicher, a health law expert at the McKinney School of Law. And he doubts Congress would let the subsidies expire.

Even though Republicans who control Congress don’t like the program they call Obamacare, he said, they're already talking about extending the subsidies for up to two years, creating time to find a solution.

“They understand that it’s not workable to pull these subsidies from people in two-thirds of the country who are going to lose their ability to buy insurance,” he told Indiana Public Media. “That’s a catastrophic outcome.”

The simple approach, he said, would be to convert the existing federal exchanges into state exchanges, with the federal government continuing to operate the exchanges under contract with the states. Indeed, a few state exchanges already follow that kind of model. Orentlicher said the outcry against letting 7.5 million people lose access to health insurance would be too great for Congress to ignore.

Orentlicher is the Samuel R. Rosen Professor of Law and co-director of the William S. and Christine S. Hall Center for Law and Health at the McKinney School. He can be reached at 317-658-1674 or Top

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Steve Sanders

Steve Sanders

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Gerard Magliocca

Gerard Magliocca

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William Popkin

William Popkin

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David Orentlicher

David Orentlicher

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Media Contacts

Jim Hanchett

Steve Hinnefeld

Ken Turchi

Assistant dean for finance and administration

Rebecca Trimpe