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Tuesday round-up

Commentators continue to speculate on the role of the Court in potential challenges to Congress’ passage of health care reform late Sunday.  At the ACS blog, Simon Lazarus writes in an issue brief that mandating the purchase of health insurance is “lawful and clearly so” under the Commerce Clause and/or the General Welfare Clause.  At Vanity Fair, Andrew Cohen predicts that in a possible 5-4 Supreme Court decision, Justice Kennedy and his swing vote would be “quite open and warm to the notion of federal intervention on health care.”  At Jost on Justice, Kenneth Jost reviews relevant Supreme Court Commerce Clause jurisprudence and concludes that the bill is likely to survive potential legal challenges. Ashby Jones at the WSJ Law Blog also weighs in on the subject.

Not all pundits believe that the plan should survive judicial review, though.  At The Volokh Conspiracy, Ilya Somin asserts that the bill should not pass constitutional muster and opines that “a two-track strategy that combines litigation with political action has a much better chance of success than either taken alone,” though he notes that even the Court’s thin conservative majority is unlikely to strike the plan down in practice.  Also at The Volokh Conspiracy, Orin Kerr puts the odds at less than 1% that the Court would invalidate the individual mandate.

Adam Liptak of The New York Times previews Flores-Villar v. U.S. in his coverage of the Supreme Court’s Monday activity.  At the Constitutional Law Prof Blog, Ruthann Robson also previews Flores-Villar and notes that application of heightened scrutiny to the gender-based statute may cause the Court to rule in favor of the petitioner.  Robson also predicts that Justice Sotomayor will play an important role in the Court’s attempts to balance gender equality and citizenship in the case.

Jeff Jeffrey at the BLT recaps Justice Ginsburg’s Friday remarks at an awards ceremony hosted by the Pro Bono Institute.  The Justice defended the Justice Department lawyers who defended Guantanamo detainees while in the private sector, telling attendees that “[t]he truth is that justice is served when there is quality representation by lawyers for everyone.”  Justice Ginsburg also addressed her health, assuring attendees that she is “alive and well.”

Ashby Jones at the WSJ Law Blog recaps recent speculation on the possible retirement of Justice Stevens and the selection of his potential replacements.  Jones notes that though we “might not know [a frontrunner] until a nomination comes down,” President Obama will likely ensure that the Court “maintain[s] its political shape.” At ABC News (via How Appealing), Ariane de Vogue reports on the upcoming Ninth Circuit confirmation hearing for Berkeley law professor Goodwin Liu, who some Republicans view as a future Supreme Court nominee.

Warren Richey of the Christian Science Monitor covers the Court’s denial of cert. in the “second” Kiyemba v. Obama.  The ACS Blog notes that this action lets stand the decision that “federal judges have no authority to review the executive branch’s determinations” as to how to release their detainees, an outcome that SCOTUSblog’s Lyle Deniston calls a “significant victory for the federal government.”  James Vicini of Reuters also covers the story.


  • At the BLT, Tony Mauro also reports on the Court’s Monday decision not to “take the bait and reverse” by denying cert. in Nurre v. Whitehead, a Ninth Circuit First Amendment case, over the dissent of Justice Alito.  Bill Mears at CNN and Lynn Thompson of the Seattle Times have additional coverage.
  • Douglas Berman at the Sentencing Law Blog catches up on the Court’s criminal justice docket, including next week’s oral arguments in Dillon v. U.S. and Barber v. Thomas.
  • Tony Mauro at the BLT reports on Monday’s decision to grant cert. in Connick v. Thompson, a case Mauro asserts “could be an important test of prosecutorial immunity in a death penalty case.”  Douglas Berman at the Sentencing Law Blog also highlights the order.
  • Mark Guarino at the Christian Science Monitor reports the Court’s refusal to grant an emergency injunction to prevent the expansion of the Asian carp population in Lake Michigan.  Gabriel Nelson also reports in the The New York Times’ Greenwire column.
  • Finally, the ABA announced that Justice Scalia will speak at the opening of the organization’s 2010 Spring Legal Malpractice Conference on Thursday, April 15 (note: link is to a PDF file).  The Justice will discuss the principles outlined in his recent book, Making Your Case: The Art of Persuading Judges, with his co-author Bryan Garner.