Breaking News

Wednesday round-up

The Court’s announcement on Monday that it will review challenges to the Affordable Care Act continues to generate an abundance of coverage and commentary.

At Bloomberg Greg Stohr predicts that the Court’s review of the health care law “all but guarantees a legacy-shaping ruling for both President Barack Obama and Chief Justice Roberts,” and at Politico Glenn Thrush observes that “Obama’s eagerness for a final resolution to the wrangling over the law represents no small roll of the political dice.”  Tony Mauro in USA Today catalogs “a few key issues and watchwords to track,” while the Associated Press’s Ricardo Alonso-Zaldivar suggests that notwithstanding the Court’s cert. grant, “[i]t may take another decade to find the balance between private and public responsibility for health care in America.”  At NPR Andrew Christy remarks on the “nearly unprecedented” five-and-a-half hour time allotment given to argue the case.

Several commentators opined on how the Court should rule.  At CNN, Professor Stephen B. Presser contends that “if sustained, the law opens the door to federal regulations of unprecedented scope,” while at the New York Times, the editorial board urges the Court to “follow its own precedents” and find “the [health care] reform law and [the] provision requiring most people to obtain health insurance . . . constitutional.” The Wall Street Journal editorial board would “like to see the entire law overturned” and adds that “[t]he Court itself deserves credit for deciding to take this case this year.”  Likewise Jennifer Rubin of the Washington Post’s Right Turn blog takes issue with the law, and seeks to “expand the debate beyond the individual mandate.”

Several commentators also weighed in on the subject of whether some of the Justices should recuse themselves, including John Hudson of the Atlantic Wire and David Jackson at the USA Today blog The Oval, who writes that “[c]onservative groups are calling for Justice Elena Kagan to recuse herself because she worked for the Obama administration during the crafting of the . . . bill,” while “[l]iberal groups . . . have called for Justice Clarence Thomas to recuse himself because his  wife has worked for the Tea Party organizations that are seeking repeal of the health care law.”  Echoing the latter sentiment, at the Huffington Post Reverend Al Sharpton calls for the recusal of Justices Scalia and Thomas as a result of their ties to conservative lobbying groups and fundraisers.  Rick Ungar also addresses this topic at Forbes, as does George Zornick at The Nation (via NPR).

Anticipating strong civic interest in the oral arguments in the case, C-SPAN chairman Brian Lamb has sent a letter to Chief Justice Roberts asking the Court to allow live television coverage of those arguments.  Lyle provides coverage of the request here as do the Associated Press, Reuters, and the Los Angeles Times.  Todd Zywicki also weighs in on C-SPAN’s plea at the Volokh Conspiracy.  And in an op-ed for the Philadelphia Inquirer, former United States Senator Arlen Specter suggests that “[o]ne way the court could improve [its] public perception is by televising its proceedings,” which would “provide[] insight into the legislative and judicial process.”  (H/t Howard Bashman.)

In the New York Times Adam Liptak reports on Professor Richard Fallon’s decision not to sign an amicus brief urging a federal court to uphold the health care law as an illustration of broader issues relating to academic amicus briefs, which prompted this anecdote from Kent Scheidegger of Crime and Consequences.  Michael D. Shear at the Times blog The Caucus reports on how the Supreme Court’s health care ruling may pose risks for Republican presidential candidate Mitt Romney.  Gerard N. Magliocca at Balkinization discusses the potential for the Court to issue a “preemptive opinion,” meaning “a Supreme Court decision that comes during a transition between constitutional generations and crafts new doctrine.”

Elsewhere in the news the Chicago Tribune’s David Savage and James Vicini of Reuters James Vicini both discuss Astrue v. Capato, in which Court will consider whether a child conceived after the death of a biological parent is eligible for Social Security benefits as a child survivor.  The Associated Press (via the Washington Post) the Sacramento Bee, and the blog Crime and Consequences report on the Court’s denials of last-minute appeals from two men scheduled to be executed yesterday in Florida and Ohio.  And Lyle Denniston of this blog, Jennie Ryan at JURIST, and Debra Cassens Weiss of the ABA Journal all provide coverage of Louisiana v. Bryson, a case filed directly in the Supreme Court on Monday in which the state of Louisiana contends that undocumented immigrants should not be counted in the ten-year national census for purposes of deciding how to allot seats in the U.S. House of Representatives.


  • The New York Times blog The Caucus reports on Republican presidential candidate Rick Perry’s proposal to “‘reform’ the federal judiciary” which would include eighteen year terms for new Supreme Court justices; At PrawfsBlawg Dan Markel comments on the candidate’s suggestion.
  • At Balkinization Professor Ken Kersch discusses “outlier” criminal sentences—like life-without-parole sentences for juveniles, the constitutionality of which the Court has decided to address in Jackson v. Hobbs and Miller v. Alabama—in the context of “the function of national judiciaries.”
  • Mark Kende at PrawfsBlawg addresses Chief Justice Roberts’s opinion in Parents Involved in Community Schools v. Seattle School District No. 1.
  • Nic Corbett at the New Jersey Star-Ledger reports on a recent speech given by Justice Alito at the Rutgers School of Law-Newark.
  • At the Atlantic Conor Friedersdorf suggests that the Supreme Court should move to Los Angeles, or anywhere else that’s not Washington, D.C.

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Nov. 16, 2011, 9:21 AM),