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Tuesday round-up

Discussion of the Affordable Care Act’s future before the Court has continued apace. As the Wall Street Journal, AP, and USA Today all report, President Obama recently predicted during a town hall meeting in Minnesota that the Court will uphold the law under its existing precedent (the Affordable Care Act is the subject of an ongoing symposium on this blog). Politico discuses why – in light of the decision by the Eleventh Circuit striking down the Act’s “individual mandate” provision – the Court is now very likely to review the constitutionality of the Act, while the editorial board of the Christian Science Monitor urges the Court to support what it describes as a “long-term trend toward people taking charge of their health – and not having others make decisions for them.” At the Legal News Line, Professor Stephen Presser argues that President Obama will seek to stall the appeal until after the 2012 presidential election for political reasons. Discussing the likely outcome of these challenges at the Court, Nick Bravin argues at Dorf on Law that, although “all eyes will be focused on Justice Kennedy,” the Justice’s oft-repeated emphasis on liberty and states’ rights might instead lead supporters of the law to seek an “unlikely ally” in Justice Scalia. James Vicini of Reuters takes a different tack, suggesting that Chief Justice Roberts and Justice Kennedy hold ACA’s fate in their hands.


  • Adam Winkler provides a history of gun rights at The Atlantic, concluding that Justice Scalia’s opinion in District of Columbia v. Heller – which held that the Second Amendment protects an individual right to bear arms – embraced elements of “a living Constitution” in crafting an exception to his broad originalist ruling that lower courts have relied upon to uphold nearly all gun laws challenged post-Heller.
  • Kenneth Jost argues at Jost on Justice that the Roberts Court has sought to close the courthouse doors to plaintiffs across a wide swath of cases, concluding that it “sees no need to read laws and interpret past decisions when possible to open the courthouse door and assure plaintiffs a viable path to legal remedy.”
  • Patrick Lee reports in WSJ that New Haven, Connecticut appears “to be in double jeopardy” two years after the Court held in Ricci v. DeStefano that the city could not decline to certify the results of an exam that would make white applicants disproportionately more eligible for promotion than minority applicants; now, the Second Circuit has reinstated a lawsuit by an African-American firefighter in New Haven who is suing the city for denial of promotion and contesting the validity of the same test at issue in Ricci.
  • Nina Totenberg reports at NPR that the Court “is being buffeted by interest groups” – particularly liberal ones – with concerns about the ethics of individual Justices, and she discusses reactions by legal ethics experts.
  • The Chicago-Kent College of Law will host its second annual Supreme Court Intellectual Property Review on September 15, 2011. Commentators will include Judge Kathleen O’Malley, Judge James Holderman, USPTO Director David Kappos, Professor Rochelle Dreyfuss and Professor Mark Lemley. More information and registration instructions can be found here

Recommended Citation: Joshua Matz, Tuesday round-up, SCOTUSblog (Aug. 16, 2011, 8:37 AM),