on Mar 23, 2010 at 9:50 am
Commentators continue to speculate on the role of the Court in potential challenges to Congressâ€™ passage of health care reform late Sunday.Â At theÂ ACS blog, Simon Lazarus writes in an issue brief that mandating the purchase of health insurance is â€œlawful and clearly soâ€ under the Commerce Clause and/or the General Welfare Clause.Â At Vanity Fair, Andrew Cohen predicts that in a possible 5-4 Supreme Court decision, Justice Kennedy and his swing vote would be â€œquite open and warm to the notion of federal intervention on health care.â€Â 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.Â At The Volokh Conspiracy, Ilya Somin asserts that the bill should not pass constitutional muster and opines that â€œa two-track strategy that combines litigation with political action has a much better chance of success than either taken alone,â€ though he notes that even the Courtâ€™s thin conservative majority is unlikely to strike the plan down in practice.Â Also atÂ 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 Courtâ€™s Monday activity.Â At the Constitutional Law Prof Blog, Ruthann Robson also previewsÂ 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.Â Robson also predicts that Justice Sotomayor will play an important role in the Courtâ€™s attempts to balance gender equality and citizenship in the case.
Jeff Jeffrey at the BLT recaps Justice Ginsburgâ€™s Friday remarks at an awards ceremony hosted by the Pro Bono Institute.Â The Justice defended the Justice Department lawyers who defended Guantanamo detainees while in the private sector, telling attendees that â€œ[t]he truth is that justice is served when there is quality representation by lawyers for everyone.â€Â Justice Ginsburg also addressed her health, assuring attendees that she is â€œalive and well.â€
Ashby Jones at the WSJ Law Blog recaps recent speculation on the possible retirement of Justice Stevens and the selection of his potential replacements.Â Jones notes that though we â€œmight not know [a frontrunner] until a nomination comes down,â€ President Obama will likely ensure that the Court â€œmaintain[s] its political shape.â€ 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 Courtâ€™s denial of cert. in the â€œsecondâ€Â Kiyemba v. Obama.Â The ACS Blog notes that this action lets stand the decision that â€œfederal judges have no authority to review the executive branchâ€™s determinationsâ€ as to how to release their detainees, an outcome that SCOTUSblogâ€™s Lyle Deniston calls a â€œsignificant victory for the federal government.â€Â James Vicini of Reuters also covers the story.
- At theÂ BLT, Tony Mauro also reports on the Courtâ€™s Monday decision not to â€œtake the bait and reverseâ€ by denying cert. inÂ Nurre v. Whitehead, a Ninth Circuit First Amendment case, over the dissent of Justice Alito.Â 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 Courtâ€™s criminal justice docket, including next weekâ€™s oral arguments in Dillon v. U.S. and Barber v. Thomas.
- Tony Mauro at the BLT reports on Mondayâ€™s decision to grant cert. inÂ Connick v. Thompson, a case Mauro asserts â€œcould be an important test of prosecutorial immunity in a death penalty case.â€Â Douglas Berman at the Sentencing Law Blog also highlights the order.
- Mark Guarino at theÂ Christian Science Monitor reports the Courtâ€™s refusal to grant an emergency injunction to prevent the expansion of the Asian carp population in Lake Michigan.Â 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 organizationâ€™s 2010 Spring Legal Malpractice Conference on Thursday, April 15 (note: link is to a PDF file).Â 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.