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Monday round-up

Commentary on the Court remains focused on the Court’s announcement that it will weigh in on the challenges to the Affordable Care Act this Term.  As Amy reported for this blog, on Friday the Court appointed two Supreme Court veterans to brief and argue two of the questions before the Court:  H. Bartow Farr, III will defend the Eleventh Circuit’s determination that the individual mandate provision is severable from the rest of the Act, and Robert Long will argue that the Anti-Injunction Act precludes any challenge to the individual mandate until it goes into effect in 2014.  The WSJ Law Blog, the Blog of the Legal Times, The Hill, Reuters (via the Baltimore Sun), and Adam Liptak at the New York Times Prescriptions Blog all provide coverage of these appointments.

Many commentators assessed the cases’ constitutional merits, policy significance, and potential implications for the Court’s reputation.  In his column for the Washington Post, George Will argues that Judge Silberman’s abandonment of Commerce Clause limits in the D.C. Circuit opinion of Seven-Sky v. Holder “might galvanize a Supreme Court majority to say ‘Enough!’”  Michael Kirkland of UPI has an extensive analysis of how the Court might rule; he concludes that “the odds at the Supreme Court are still weighted in favor of the challengers, if only slightly, and the high court probably will rule against the law.”  And at Just Enrichment, Adam Chandler considers whether the “long arc of history” may “bend toward health care reform,” while in the New York Daily News Jamal Greene contends that “[i]f Supreme Court Chief Justice John Roberts rules against Obamacare, he will prove himself a political partisan.” Walter Zelman offers a “conservative case” for the Affordable Care Act in an op-ed for the Los Angeles Times, and J. Stephen Clark argues at the (Albany) Times Union that “the people challenging Obamacare’s individual mandate are asking the court to . . . [u]se the Constitution as a pretext to set aside an unpopular policy.”  At Forbes, Daniel Fisher discusses the inevitable “broccoli question.”  Finally, while Mike Norman insists in the Kansas City Star that Congress is not prepared to act swiftly in response to the Court’s ultimate decision, Andrew McCarthy argues in the National Review Online that “[w]hat Obamacare needs now, what it has always needed, and what it will continue to need after the Supremes issue their ruling next year is a political repeal.”

Last week’s orders granting cert. in the health care cases led to renewed calls for Justices Thomas and Kagan to recuse themselves.  Senate Republicans have called on the Department of Justice to disclose information pertaining to Justice Kagan’s involvement with the ACA during her tenure as Solicitor General, while House Democrats have asked the U.S. Judicial Conference to seek an investigation of Justice Thomas’s failure to properly disclose his wife’s income on his tax returns.  Joan Biskupic has coverage for the USA Today; Roll Call, Politico, and The Hill also report on the story.

Finally, Adam Cohen of TIME argues in favor of cameras at the Supreme Court; he contends that “[t]elevision cameras would be a sudden jolt of accountability for a body that is not used to it.”


  • Adriane de Vogue of ABC News reports on remarks by Justice Ginsburg on gender equality at an event sponsored by the National Women’s Law Center
  • At the Washington Post, Laura Hambleton interviews Justice Stevens on his activities since retirement
  • The editorial board of the New York Times urges the Court to review the D.C. Circuit’s opinion in Latif v. Obama, a recent detainee case, arguing that “the appellate court has made the standard of review toothless” and that the Court “must reject this willful disregard of its decision in Boumediene v. Bush”
  •, Constitutional Law Prof Blog, and the Washington Post all discuss allegations of ethical lapses by Justice Thomas.
  • Scott Turow discusses the Occupy movement at Bloomberg, contending that the Court is an important source of its frustration because “post-Buckley jurisprudence has figuratively allowed the rich to speak through microphones while the poor can barely whisper, and tolerates a situation in which the voices of contributors are amplified to the point that they drown out the opinions of mere voters.”
  • Jeff Gill of the Gainesville Times reports the latest developments in a water dispute among Georgia, Florida, and Alabama; the latter two states are expected to seek Supreme Court review of the dispute.
  • Sabrina Eaton of discusses First American Financial Corp. v. Edwards, a case about the scope of standing under the Real Estate Settlement Services Act; she notes that “a decision against Edwards could weaken a broad range of consumer protection statutes and curtail class-action suits.”

Recommended Citation: Joshua Matz, Monday round-up, SCOTUSblog (Nov. 21, 2011, 10:21 AM),