Monday round-up

By Joshua Matz
on Sep 26, 2011 at 9:19 am

The Affordable Care Act’s path to the Supreme Court continues to generate discussion and commentary. (The ACA was also the subject of a symposium on this blog). Writing for the Los Angeles Times, David Savage describes the decision facing the Obama Administration – whether to seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate as unconstitutional or to instead seek Supreme Court review directly – as carrying a “high political risk.” The York Daily Record examines the prospect that Goudy-Bachman v. Department of Health and Human Services, in which a federal judge from the Middle District of Pennsylvania struck down the ACA’s individual mandate, could reach the Court. (Hat tip to Howard Bashman of How Appealing for this link.) Finally, writing at Verdict, Michael Dorf argues that although litigation over the ACA is likely to produce “the most closely watched case” of the coming Term, it “actually presents a relatively unimportant constitutional question” and is significant primarily in “the realms of politics and policy.”

The execution of Troy Davis last Wednesday prompted more debate over the weekend about the Court’s role in executions. Responding to criticism by Dahlia Lithwick and Lisa McElroy in the New York Times (which Kiera covered in Friday’s round-up), Kent Scheidegger countered at Crime and Consequences that “[u]nexplained denials are, of course, standard operating procedure at the discretionary review stage.” The editorial board of the New York Times cites the Davis case as an example of how the Court has failed to create procedures that render the death penalty constitutionally permissible. But Kenneth Jost contends at Jost on Justice that the case for Troy Davis’s actual innocence is ultimately unpersuasive.

Justices Scalia and Kagan also drew coverage this past weekend. On Saturday, Justice Scalia delivered a speech at Duquesne University in which he argued for the importance of moral judgment in higher education; the Pittsburgh-Gazette and Pittsburgh Tribune-Review both have coverage. Writing in the Washington Post, Robert Barnes surveys Justice Kagan’s first year on the Court, observing that although she “came to the bench as something of a mystery,” the Justice now stands out as a “conversational, confident writer, at times as sarcastic and cutting as a veteran.”

Briefly:

• At CATO@Liberty, Ilya Shapiro links to an entertaining video by the Institute for Justice that explores the basics of trial and appellate procedure to illustrate how a case reaches the Supreme Court.

• In the Washington Post, Robert Barnes surveys the procedural posture of the various same-sex marriage cases and concludes that “it’s anyone’s guess how long the legal appeals are going to take and which cases are likely to reach the Supreme Court first.”

• In the New York Times, Steven Greenhouse reports that labor unions have reacted to the Court’s ruling in Citizens United v. FEC by “developing ambitious plans to influence nonunion households in the 2012 election and counter corporate money flowing into outside conservative groups.”

• At Concurring Opinions, Daniel Solove discusses United States v. Jones, in which the Court will consider the constitutionality of using a GPS tracking device on a suspect’s car without a warrant. He proposes a “coherent line” to demarcate when the Fourth Amendment will apply to the use of surveillance technology in public.

• In the Los Angeles Times, Meg Waite Clayton commemorates Justice Sandra Day O’Connor’s arrival on the Court thirty years ago, arguing that “in her holdings themselves, and in her holding against expectation to her own sense of the law, Sandra Day O’Connor demonstrated that the time to give up traditional notions of gender roles had come.”

• In the Deseret News, Michael de Groote previews Hosanna-Tabor v. Evangelical Lutheran Church and School v. EEOC, in which the Court will consider the scope of the ministerial exception to anti-discrimination statutes in the employment context. (Hat tip: Howard Bashman of How Appealing.)

• At Lubbock Online, Logan G. Carver reports on a speech given by General William Suter, the Clerk of the Court, at Texas Tech Law School last Friday.

• Howard Wasserman argues at Prawsblog that lower courts have begun to “take the Supreme Court at its word about backing away from drive-by jurisdictional rulings, especially those on the margins of jurisdiction and merits.”