The Supreme Court is scheduled to hear oral arguments at 10:00 today in two cases that present the issue of when a Social Security claimant must raise an issue. Must it have been raised before the agency in order to raise it before the federal courts? This is in the context of Lucia challenges to the authority of Administrative Law Judges to hear cases but the Court's ruling will certainly affect Seila Law litigation.
Sounds like those that preserved/raised the appointment clause issue at USDC will get new hearings. Only a few hundred cases are at stake it was at stake. 'A drop in the bucket'[!]
ReplyDeleteWeird just hearing Clarence Thomas ask a question early in the argument. He once went like 3 years without asking a question.
ReplyDeletehttps://www.cnn.com/2019/03/20/politics/clarence-thomas-question
The attorney presenting the case for the Petitioners is a former law clerk for Justice Thomas. He also asked questions to her in a Railroad Retirement case argued in November 2020.
ReplyDeleteAlso, of note, Justice Thomas wrote the majority opinion in Sims v. Apfel. The Sims case is one of the keys to the cases at issue.
@2:14
ReplyDeleteThat's my read of it. None of the justices seemed particularly interested in forcing an issue exhaustion requirement on claimants when SSA is not bothering to. Gorsuch seemed offended by it as it would be counter to an ALJ's duty to ensure the record and issues are developed. And it does seem like a real risk for Courts to create an issue exhaustion standard which SSA, never passing any regulation and Congress, never passing a statute, not providing notice to claimants they would need to raise issues or else have them forfeited.
I've never understood how it's not entirely a futility argument, given the fact SSA instructed ALJs they cannot develop the issue. Normally issue exhaustion is useful to ensure the issues are developed, but SSA literally is telling ALJs: "don't develop this issue if raised." It's absurd.
@2:52
Thomas didn't ask any questions from 02/22/06 until 02/29/16, just over 10 years. Then Thomas didn't ask any questions for ANOTHER 3 years.
I might be in the minority, but I think the rotation system the justices have been using during covid to ask questions in sequence is an improvement. As I recall, Thomas is asking more questions because in the past his colleagues asked good questions and by the end of an argument session, Thomas did not have any questions that were not already asked. Because of Thomas' seniority, he goes early in the rotation, so he's careful to make sure his questions are asked in case they are not asked by his colleagues. I think I heard that in an interview from Thomas directly, or else it was speculation that that is what is occurring.
@ 9:43 I had to read a lot of bogus decisions from Thomas in law school in the early 2000s. It always seemed to be the same in key cases - Scalia wrote the decision while Rehnquist and Thomas concurred without adding any meaningful thoughts.
ReplyDeleteI have read a few Thomas decisions in the last 10 years or so. There still is nothing really helpful usually. Then again, I feel the same about Kagan. Do not really believe Thomas or Kagan were ever built for the big league appeals court.
@1:30
ReplyDelete9:43 here, yeah I'm not praising Thomas, I just appreciate a justice or judge showing their cards, as opposed to just sitting and then issuing an opinion or a dissent without allowing the parties to address the concerns at argument. Maybe those concerns should've already been dealt with in the briefs, but if oral argument has any purpose it's to allow an opportunity to the parties to actually effectively communicate with the justice or judge.
Not a fan of Thomas' opinions. Kagan, I've literally never been able to get a good read on her position at argument or in reviewing her opinions.