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Monday round-up

On a big weekend for the non-judicial branches, several commentators debated the constitutionality of the healthcare legislation passed yesterday.  On the op-ed page of the Washington Post, Prof. Randy Barnett identified “potential constitutional challenges to health-care reform” but argued that although several such challenges “have a sound basis in the text of the Constitution, and no Supreme Court precedents clearly bar their success, the smart money says there won’t be five votes.”  He concluded by referring to “another recent case in which the smart money doubted there were five votes to intervene in a politicized controversy involving technical procedures. A case in which five justices may have perceived that long-established rules were being gamed for purely partisan advantage.  You might have heard of it: Bush v. Gore.”

At Balkinization, Prof. Jack Balkin discusses the Barnett op-ed piece; in an email to Balkin, Barnett to clarified that his reference to Bush v. Gore, was “simply about predicting 5 votes,” and that he was not, as Prof. Matt Bodie suggested at PrawfsBlawg, “holding out hope for Bush v. Gore II.” At the Volokh Conspiracy, he offered one more clarification, arguing “that a political climate such as this–like the climate surrounding the 2000 election–could affect the openness of some justices to constitutional arguments they might otherwise be inclined to reject.”

Although the procedure was ultimately not employed, the weekend also saw considerable discussion of the reported plan to “deem and pass” the Senate bill without a separate vote in the House.  In the Wall Street Journal, Prof. Michael McConnell argued that such a move would be unconstitutional.  At Balkinization, Prof. Balkin reprinted a letter that he had sent to the House Rules Committee in support of the controversial procedure, and addressed Prof. McConnell’s arguments against it.

In other news, recent Supreme Court decisions continued to make their effects felt.  On this blog, Lyle Denniston reported that the Ninth Circuit had decided against the estate of Anna Nicole Smith, whose case came before the Supreme Court several terms ago.  On Wall Street Journal’s Law Blog, Ashby Jones discussed the West Virginia Senate vote to offer public funding to candidates for the state supreme court in the aftermath of Caperton v. Massey Coal, as well as the Anna Nicole Smith case.  And the Boston Globe reported on the responses of states whose laws forbid corporate campaign donations prior to Citizens United.


  • David Savage (in the Los Angeles Times) and Tony Mauro (in the National Law Journal, via report on potential Supreme Court nominees, should Justice Stevens choose to retire.
  • In Forbes, Karlyn Bowman put together the recent poll on public approval of the Supreme Court and the discussion of Citizens United and the State of the Union address to argue that American support for the Court is both strong and unlikely to erode.