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Thursday round-up

Yesterday’s coverage and commentary continued to focus on Monday’s announcement that the Court will review several of the pending challenges to the Affordable Care Act.

Several new commentators offered opinions on when and how the Court should rule. In an op-ed for the Washington Post, Ruth Marcus argues that “the best thing for the country” would be for the Court to reach the substance of the constitutional challenges to the individual mandate this Term, rather than holding that the Anti-Injunction Act bars courts from deciding that issue until after the law goes into effect in 2014.  The editorial board of the Los Angeles Times weighs in as well; it urges the Court to uphold the law but also emphasizes that voters will get to weigh in again on the direction of healthcare reform — and which party will control it — in November” 2012.  Writing in the New York Times, Einer Elhauge also argues that the Court should uphold the law, reasoning that the individual mandate “does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.”  And at the Christian Science Monitor, economics professor David C. Rose takes a different tack, arguing that it is “important that all Americans understand the threat President Obama’s health-care law poses to freedom in the US.”

Some commentators focused on the Court’s decision to review the constitutionality of the Affordable Care Act’s expansion of the Medicaid program.    Writing at Forbes’s The Apothecary blog, Avik Roy characterizes the issue as having “large repercussions for our new health law, and also for the future of federal-state relations.” N.C. Aizenman of the Washington Post describes the law’s supporters as “reeling” over the announcement.

Coverage of and commentary on the potential recusal (or lack thereof) of individual Justices continued as well. Ariane de Vogue of ABC News reports on efforts to pressure Justices Thomas and Kagan to sit out the health care cases, while Jennifer Rubin of the Washington Post’s Right Turn blog argues that “[w]e want the entire country to have confidence that the decision was rendered by those who have no stake (financial, political, ideological) in the outcome” and opines that she doesn’t “see how that is possible in Kagan’s case.” However, Dahlia Lithwick of Slate counters that “calls for Elena Kagan to recuse herself from the Obamacare case are ridiculous.”

Some stories and blog posts stepped back to take a broader view of the health care challenges. Lyle Denniston of this blog has the first of a series of articles explaining the health care law and the history of the constitutional challenges to this point. Reuters has a similar overview of the cases and what they “could mean on several fronts.”

Still others focused on the potential political consequences of the Court’s eventual decision.  At the Washington Post’s The Insiders blog, Ed Rogers contends that regardless of how the Court rules, a decision on health care in 2012 is a “can’t lose, win-win scenario” for Republicans. In another post at the same blog, Carter Askew suggests that “both sides could be hoping for a loss” that would stoke their respective party bases ahead of the 2012 elections.

Several other stories from yesterday also had a health care bent. At the Wall Street Journal Law Blog, Jess Bravin reports on remarks by retired Justice John Paul Stevens on the effect that the decision by conservative Judge Jeffrey Sutton, who wrote an opinion rejecting a facial challenge to the Affordable Care Act in Thomas More Law Center v. Obama, could have on Sutton’s prospects of becoming a Supreme Court Justice.  In the wake of the Court’s decision to allot five-and-a-half hours for oral arguments in the health care challenges, Thomson Reuters News & Insight reports on the Court’s “lengthiest oral arguments ever.” And in addition to several stories that Conor noted in yesterday’s round-up, Joe Palazzolo of the Wall Street Journal Law Blog, the Huffington Post, and Ariane de Vogue of ABC News also report requests by C-SPAN and Senator Charles Grassley of Iowa to televise the Court’s health care hearings.


  • Ilya Somin of the Volokh Conspiracy discusses recent comments by now-retired Justice Stevens regarding the Court’s decision in Kelo v. City of New London.
  • Alexis Bergelt of the Cronkite News Service (via the Tucson Sentinel) reports on the Court’s recent denial of cert. in a challenge to an Arizona law concerning restraining orders.
  • David Eldridge of the Washington Times reports on a statement made by Arizona Governor Jan Brewer, who expressed hope that the Court would soon grant review in Arizona v. United States, in which her state is seeking review of a lower court decision blocking enforcement of Arizona’s controversial immigration law.
  • Douglas Berman of Sentencing Law and Policy observes that “a pretty sleepy sentencing Term for the Court could quickly become one of the most interesting to watch in recent years” if the Court were to grant cert. in two re-listed cases, Fisher v. United States Dist. Court for the Northern Dist. of Texas and Davis v. United States.
  • Massimo Calabresi of Time Magazine’s Swampland blog recaps last week’s oral arguments in United States v. Jones, the GPS tracking case, and discusses its implications for “the accumulation of vast databases on individual behavior.”
  • Bob Egelko of the San Francisco Chronicle reports on a speech that Justice Breyer delivered yesterday at the UC Hastings College of Law about the “dangers of unchecked presidential power in wartime”.
  • Kelly Phillips Erb of Forbes reports on the Court’s decision to grant cert. in Armour v. City of Indianapolis.

Recommended Citation: Kiran Bhat, Thursday round-up, SCOTUSblog (Nov. 17, 2011, 10:58 AM),