Welcome to Supreme Court Brief! Justice Ginsburg was hospitalized Tuesday after seeking treatment for a possible infection. Plus, we look at the court's practice of revising its opinions—which rulings were changed? And although the new term is nearly three months away, lawyers in the next Obamacare showdown are arguing over argument time. Thanks for reading, and your feedback is welcome and appreciated. Contact Marcia Coyle at [email protected] and follow her on Twitter @MarciaCoyle. And contact SCB contributor Tony Mauro at [email protected] and on Twitter at @Tonymauro.

Ginsburg 'Resting Comfortably' After Treatment for Possible Infection

Justice Ruth Bader Ginsburg on Tuesday was hospitalized for treatment of a possible infection, according to a spokesperson for the U.S. Supreme Court.

The 87-year-old justice was admitted in the morning to the Johns Hopkins Hospital in Baltimore, Maryland. She was initially evaluated at Sibley Memorial Hospital in Washington, D.C., after experiencing fever and chills, according to the court.

At Hopkins, the justice underwent an endoscopic procedure in the afternoon to clean out a bile duct stent that was placed last August. The court, in a statement, said the justice was resting comfortably and was expected to remain in the hospital for a few days while she received intravenous antibiotic treatment.

Her admittance to Hopkins was her second time in two months. In May, she entered the hospital for treatment for acute cholecystitis, a benign gallbladder condition. While there, she participated in the court's historic virus-era telephonic arguments from her hospital bed.

Ginsburg has been treated in the past for lung, early-stage pancreatic and colon cancer. Last November, Ginsburg was briefly hospitalized after experiencing fever and chills. Her symptoms then abated with intravenous antibiotics and fluids. —Marcia Coyle

Revisions in Decisions

One measure of how hectic the final months of a Supreme Court's term really are may be how many errors or revisions were made in the court's printed June decisions.

By that yardstick, the court did okay in the term just ended. According to the court's docket, errors were found and fixed in two of the 17 decisions handed down in June. In the previous term, three revisions were made in June cases, and in the 2017 term, there were six.

You can be forgiven if you are surprised to learn that the often reclusive high court publicizes its hiccups. But since 2015, that's been the case because of a 2014 Harvard Law Review article written by law prof Richard Lazarus that revealed the court's secretive practice of revising decisions after they've been handed down. The court soon announced it would post revisions on the court's website whenever they occur.

Some of the revisions are minor but amusing, as in 2018 when Justice Stephen Breyer, a French-speaking francophile, misspelled "laissez faire" as "lassez faire." But other revisions have some significance. Here are the changes made in June 2020 decisions:

>> In Seila v. CPFB, Justice Clarence Thomas made reference to the 1988 Morrison v. Olson decision and "all nine members" who participated in the case. The revision clarified that Morrison was ruled on by eight justices, with Justice Anthony Kennedy recused.

>> In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment Justice Sonia Sotomayor, in a concurrence, wrote that the "people of Puerto Rico approved the modified Constitution" of Puerto Rico in 1952. The revision stated that, in fact, Puerto Rico's "constitutional convention approved the modified Constitution."

>> Three days later, a second change in Sotomayor's concurrence established that after the convention was approved, "the people of Puerto Rico subsequently ratified modifications in another referendum." So far, no revisions have been made in the 10 decisions issued by the court in the spillover period of July. —Tony Mauro

Obamacare Lawyers Jockey Over Argument

The justices' next showdown over the Affordable Care Act comes next term and even though arguments have yet to be scheduled, the parties' lawyers are fighting over a division and expansion of argument time.

The court granted one hour of argument time in California v. Texas, joined with Texas v. California: 30 minutes per side. The Trump administration's U.S. Justice Department is the federal respondent in California v. Texas, and the U.S. House of Representatives intervened on the side of California.

The case stems from a suit filed by Texas and a coalition of Republican-led states arguing that the health insurance law is unconstitutional and must fall in its entirety because Congress in 2017 eliminated the tax penalty for failure to purchase health insurance as required by the act. The Trump DOJ has also urged the court to strike down the entire law.

California and a Democratic-led state coalition are defending the entire law's constitutionality and argue if the insurance mandate is ruled unconstitutional, it should be severed from the rest of the law.

The House, represented by House general counsel Douglas Letter, has asked the court to expand argument time to 40 minutes: 30 minutes for California and 10 minutes for the House. California has agreed as long as its argument time is not less than 30 minutes.

"Given that the House is both a party to this litigation and a coequal Branch of government with vital interests in this litigation, hearing from the House at argument is especially warranted here," wrote Letter, who is assisted by Munger, Tolles & Olson partner Donald Verrilli Jr.

Texas argues the House motion should be denied, claiming that the House's briefing in the case largely duplicates California's arguments. The House, contends Texas solicitor general Kyle Hawkins, "has no legally cognizable special interest at stake in this case, and it has nothing distinct to add to the argument."

The United States, represented by then-U.S. solicitor General Noel Francisco, is seeking its own divided argument: 15 minutes to Texas and 15 minutes to the United States. And although it doesn't oppose the House motion for divided time between California and the House, the United States, Francisco wrote, does oppose an expansion of argument time. (Francisco left office on July 3 after the motion was filed. Jeffrey Wall is serving as acting U.S. solicitor.)

"The arguments made by the House and the State petitioners/cross-respondents are largely overlapping and duplicative, and there is no evident reason why they cannot present those arguments in the time allotted," he said.

And to complicate argument time even more, two states, Ohio and Montana, are asking the court to expand the argument time to allow those amici states 10 minutes in support of neither party. The United States opposes their argument motion.

"Ohio and Montana seek argument time primarily to argue for severability," wrote Ohio solicitor general Benjamin Flowers. "More precisely, they wish to argue that that modern severability doctrine, if it is to be retained, should be grounded in statutory text rather than hypothetical congressional intent." —Marcia Coyle

Supreme Court Headlines: What We're Reading

Roberts rules

The Supreme Court Is Still Capable of Shocking the Nation. "Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law. He surprised liberals and horrified movement conservatives who had hoped he would lead or at least participate in sweeping away liberal precedents they hate." [Bloomberg]

With Wave of Major Rulings, Roberts and Supreme Court Emerge As Powerful Counterweight to Trump and Congress. "This is one of the most consequential terms for a chief justice in modern history, given his role as the decisive vote in the most important cases and the landmark opinions he wrote," Latham & Watkins partner Gregory Garre said. [The Washington Post]

A Powerful Chief And Unexpected Splits: 6 Takeaways From The Supreme Court Term. "Perhaps for reasons of either ego or frustration, conservatives wrote way more separate concurring and dissenting opinions—a total of 60—compared to the liberals, who wrote far fewer concurring opinions and almost always dissented as a group." [NPR]

In a Term Full of Major Cases, the Supreme Court Tacked to the Center. "The term that just ended was a buffet of blockbusters. It was also the term in which Chief Justice Roberts emerged as the member of the court at its ideological center, his vote the crucial one in closely divided cases, a role no chief justice has played since 1937. He was in the majority in all but one of the term's 5-to-4 or 5-to-3 decisions." [NYT]

A Conservative Court and Trump's Own Appointees Declare Their Independence. "That a conservative court including two of his own appointees would so decisively slap down a Republican president's expansive claim of constitutional power served as a reminder that institutional prerogatives still matter in Washington, even in a time of extreme partisanship." [NYT]

Court administration

When Supreme Court Clerkships Become a Family Tradition. More than 2,000 men and women have served as U.S. Supreme Court law clerks since Justice Horace Gray hired the first one in 1882. Here's a look at a smaller subset where a parent and a son or daughter each clerked. [NLJ]

An Inside Look at How Trump's Supreme Court List Is Made: 'A Tremendous Investment of Time.' "In the initial stages of the list, in 2016, a relatively small group of lawyers—receiving input from the conservative and libertarian lawyers' group the Federalist Society—took on the task of combing through thousands of pages of judicial opinions, speeches and more to come up with a list of sufficiently vetted names to present to Trump." [Fox News]

Why Conservative Justices Are More Likely to Defect. "The justices are indeed acting faithfully to law, but not by enforcing the written Constitution and laws. Rather what they enforce is our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law. Justices interpret open-ended provisions ('due process of law') in light of this unwritten constitution. And because the background small-c constitution embodies a liberal order, it is unsurprising that their decisions do as well." [The Washington Post]

The cases

Supreme Court Appears Likely to Sidestep Obamacare Hearing Before Election. "The Supreme Court has all but ruled out hearing a GOP-backed challenge to Obamacare before Election Day, likely avoiding a high-stakes showdown over a lawsuit that will factor prominently into this fall's campaigns. The latest: According to a new schedule released by the court Monday, the justices will not hear the Obamacare case in October when their next term begins. Instead, the justices will spend that month hearing 10 cases left over from the previous term that ended last week and was abbreviated because of the coronavirus pandemic." [Politico] SCOTUSblog has more here.

Big Oil Repeatedly Remanded to State Courts—Will SCOTUS Come to the Rescue? "Oil companies facing suits by state and local governments that want them to bear a share of the cost of responding to the consequences of global warming do not want to litigate in state court. In case after case, when localities have filed climate change suits in state court, oil company defendants have removed the cases to federal court. They've cited all kinds of rationales for federal jurisdiction, ranging from preemption by the Clean Air Act to federal common law governing interstate pollution." [Reuters]

House to Quickly Revive Legal Effort to Get Trump's Financial Records. "In a filing late Monday, the House's top lawyer, Douglas Letter, urged the justices to immediately effectuate their July 9 ruling on the House's subpoena for Trump's records. Once the ruling is in force, the House can return to the U.S. District Court judge who initially heard the case and ask for renewed consideration." [Politico]

Supreme Court Permits First Federal Executions Since 2003. "A divided Supreme Court cleared the way for the first federal executions since 2003, issuing orders shortly after 2 a.m. Tuesday rejecting inmate claims that using pentobarbital for lethal injections would be unconstitutional. In an unsigned opinion, the court's five-member conservative majority sought to end the fusillade of litigation four condemned men and their allies filed since Attorney General William Barr announced plans a year ago to reactivate the federal death chamber in Terre Haute, Ind." [WSJ]