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Monday round-up

The Court may announce this morning whether it has granted review (and if so, on what grounds) in any of the five cases on last week’s Conference involving challenges to the Affordable Care Act.  MSNBC, the New York Times, McClatchy, the Huffington Post, and the Los Angeles Times all have coverage of the ACA’s path to the Court and the constitutional issues at stake.  (Our recent SCOTUSblog symposium on the law’s constitutionality can be found here; Lyle Denniston posted a thorough analysis of the cases and issues on this blog last week.)  At Bloomberg Businessweek, Noah Feldman argues that Justice Kennedy may rely on the Anti-Injunction Act to avoid deciding whether to strike down the ACA before next year’s presidential election.  The editorial board of the New York Times discusses last week’s decision by the D.C. Circuit rejecting a constitutional challenge to the Act; the board emphasizes that “prominent Republican judges have agreed with the Obama administration that a core element of the health reform law is constitutional” and urges the Court to “affirm these judgments.”  Bruce Brown echoes this sentiment in The New Republic, arguing that the D.C. Circuit’s decision is “deeply significant and a genuine surprise to court watchers—and an extreme disappointment to those opposing the law—because it provides the most authoritative, truly conservative defense of the Act thus far, a defense that should buttress the legal position of the Obama administration before the Supreme Court next year.”  Finally, Robert Barnes of the Washington Post notes “unmistakable comparisons to the court’s action on the Social Security Act of 1935” (which the Court upheld in a pair of cases in 1937).

Commentary on the privacy and law enforcement interests at stake in United v. Jones, the warrantless GPS tracking case, continued through the weekend.  (Lyle previewed Jones for this blog, Orin discussed the case here and here, and Amanda covered it in her academic round-up).  Greg Stohr of Bloomberg Businessweek has coverage of the case, while Greg Dihlmann-Malzer at Just Enrichment, L. Gordon Crovitz at the Wall Street Journal Online, the Los Angeles Times editorial board, Jonathan Turley at Post Politics, Alex McLesse at the Harvard Political Review, Brandon Gee of the Tennesseean, Cindy Swirko of the Gainesville Sun, the (Minneapolis-St. Paul) StarTribune editorial board, Rob Pegoraro of Discovery News, the Augusta Chronicle editorial board, US Politics Today, and David Cole at the Washington Post all weighed in.

Last Friday, Stephen Wermiel discussed the constitutional issues in Miller v. Alabama and Jackson v. Arkansas, in which cert. was granted last week.  In those cases, the Court will consider whether the Eighth Amendment prohibits sentences of life without parole for juveniles convicted of murder.  At Ipsa Loquitur, Scott Hechinger “contextualize[s] these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing.”


    • For this blog, Rory Little analyzed the Court’s opinion last week in Greene v. Fisher clarifying the meaning of “clearly established federal law” under AEDPA.  [Disclosure:  Some of the attorneys of Goldstein & Russell, who contribute to this blog in various capacities, represented petitioner Eric Greene in the case.]
    • At Verdict, Vikram David Amar discusses the Court’s summary reversal of the Ninth Circuit last week in the habeas case of Cavazos v. Smith (Lyle covered this opinion here).
    • At the Associated Press, Mark Sherman explains why the Court does not always have the “last word on legal issues,” citing as examples cases involving detainees in the “war on terror,” punitive damages awards, and pro-defendant criminal rulings.
    • Peter Yost of the Associated Press reports on the brief in opposition filed last week by the federal government in Arizona v. United States, in which the state seeks review of a Ninth Circuit decision blocking the enforcement of key provisions of Arizona’s immigration law.
    • After last week’s argument in Smith v. Cain, the editorial board of the New York Times urges the Court to “strengthen the criminal system by simplifying the Brady rule so that no prosecutor can hide behind an easy excuse to withhold exculpatory evidence.” (Lyle previewed the case and recapped the oral argument for this blog.)
    • At Slate, Lawrence Baum and Neal Devins discuss implications of the fact that, “[f]or the first time in a century, the Supreme Court is divided solely by political party.”
    • At The Huffington Post, Nan Aron comments on the involvement of Justices Scalia and Thomas in the Federalist Society National Convention.
    • At PrawfsBlawg, Mark Kende assesses Justice Scalia’s criticism of the role of empirical evidence in Brown v. Plata, the California prison overcrowding case decided in June.
    • At UPI, Michael Kirkland reports on a proposed Securities and Exchange Commission regulation designed to “undo at least some of the effects” of the Court’s opinion in Citizens United v. FEC.
    • At the National Law Journal, Tony Mauro argues that the Justices should welcome cameras into their courtroom.

Recommended Citation: Joshua Matz, Monday round-up, SCOTUSblog (Nov. 14, 2011, 9:23 AM),