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Friday round-up

Oral argument in the health care cases continues to dominate coverage.  On Wednesday, the Court heard argument on two issues.  In the morning, it considered the severability question:  namely, what part, if any, of the Affordable Care Act (ACA) survives if the individual mandate falls.  Bloomberg News offers audio highlights of the severability argument; the Sentencing Law & Policy Blog, CATO@Liberty, Concurring Opinions, Balkinization’s Gerard Magliocca and Gillian Metzger, the Text and History Blog, The Atlantic, and Newsday all weigh in on the argument.  On Wednesday afternoon, attention turned to whether the ACA’s Medicaid expansion is impermissibly coercive.  For this blog, Amy describes the argument “In Plain English.”  Ilya Somin and Eugene Kontorovich of the Volokh Conspiracy, Constitutional Law Prof Blog, Concurring Opinions, Balkinization, and the Los Angeles Times also provide coverage.  General commentary on Wednesday’s arguments comes from Bloomberg News, Elizabeth Weeks and Nicole Huberfeld of Concurring Opinions, CATO@Liberty, Salon, the Houston Chronicle, Forbes, and the (U.K.) Guardian.  Finally, returning to questions raised in Tuesday’s arguments, the Consumer Law & Policy Blog, Concurring Opinions, the Volokh Conspiracy, the Chicago Tribune, Balkinization’s Mark Tushnet and Deborah Pearlstein, and Reason all discuss the ACA’s individual mandate.

Commentators also offered additional perspective on the three days of argument: Bloomberg News, Verdict, Chicago Tribune, the Baltimore Sun, The Washington Post, the (U.K.) Telegraph, the Huffington Post, the Kansas City Star, David Cole and Jeffrey Rosen at NPR, National Review Online, the Boston Globe, The Daily Beast, C-SPAN, U.S. News & World Reports, the Philadelphia Inquirer, Paul Krugman of the New York Times, Mother Jones, the Economist, and New York Magazine.  At Slate, Dahlia Lithwick chats with readers about the oral arguments, while Brian Palmer explores whether Supreme Court oral arguments are predictive of outcomes (a question echoed in the Bellingham Herald).  The Wall Street Journal Law Blog reports that “the conservative justices dominated the first half of the session [on Tuesday], battering Solicitor General Donald Verrilli with questions about broccoli and burial services, while liberal justices did the vast majority of the talking in the second half as they questioned the law’s challengers.”  Finally, Balkaiization‘s Mark Tushnet cheerfully offers “gratuitous offense” in commenting on Justice Scalia’s comments at oral argument

Solicitor General Verrilli’s performance remains the subject of dueling assessments.  At The New Republic, Simon Lazarus contends that Verrilli “did a great job” and Alec MacGillis surveys a debate over whether the ACA is “simply too confusing to defend easily.”  Reynolds Holding observes in Reuters that Verrilli “has Obama’s backing – until he doesn’t,” while Balkinization’s Gerald Magliocca notes that “you know that things are going poorly for the Obama Administration when the Solicitor General is being mocked on YouTube.”  At Slate, Akhil Amar offers advice on what Solicitor General Verrilli “should have said.”  Finally, Bloomberg reports on a Republican Party advertisement that uses a doctored version of Solicitor General Verrilli’s oral argument to criticize the Affordable Care Act (the Associated Press also provides coverage); Tom shares some detailed thoughts about that strategy on this blog.

The timing, strategy, and implications of the Court’s ruling attract a great deal of attention.  Fazal Khan of ACS Blog and David Paul of the Huffington Post warn that an opinion invalidating the ACA risks compromising the Court’s legitimacy, while at Balkanization, Sandy Levinson questions whether a decision invaliding the opinion would actually generate a backlash.  John Yoo argues in the Wall Street Journal that “overturning ObamaCare by a mere 5-4 margin would show the tenuousness of the 40-year conservative campaign to alter the Supreme Court,” while William Galston contends in The New Republic that the Justices will not be “crudely political” in deciding this case.  At the Wall Street Journal, Jess Bravin contends that the health care ruling will be “a crucible for Chief Justice John Roberts” — in a related vein, the Associated Press suggests that Chief Justice Roberts and Justice Kennedy will likely control the outcome of these cases, and Reuters focuses on the Chief Justice’s vote.  Turning to next steps, the Associated Press, the Washington Post, the Boston Globe, USA Today, Ezra Klein’s Wonk Blog, and NBC News all note that the Justices will cast initial votes on the health care cases at today’s Conference (and that these votes will be kept a carefully guarded secret).  Finally, the Christian Science Monitor, Bloomberg News, ABC News, the Washington Post, Reuters, and the Washington Times report on potential reactions to the Court’s opinion.

In other healthcare-related news: NPR reports on the full menu of food analogies deployed during the oral argument; TVNewser reports on covering the Court without cameras; David Kopel discusses the search for limiting principles at the Volokh Conspiracy; and the Election Law Blog reports on a Buckley v. Valeo “cameo” in the health care oral arguments.

Finally, on a lighter note:  McSweeney‘s has published an opinion entitled “The Supreme Court Issues a 5-4 Decision on Where to Order Lunch” (preview: Justice Ginsburg writes for the majority in the case of Domino’s v. That One Greek Place Over on N Street).  The Onion also offers a unique perspective on the Court with a brief article headlined “Scalia Unable To Name All 9 Supreme Court Justices.”


  • Nate Silver of the New York Time’s Five Thirty Eight Blog reports that the current Supreme Court may be the most conservative in modern history; the Economist also reports on the “polarised Supreme Court.”
  • The New York Daily News reports on the Court’s recent opinion in Vartelas v. Holder, in which the Court held that because the Illegal Immigration Reform and Immigrant Responsibility Act burdens lawful activity on the basis of nothing more than past criminal activity, it was retroactive within the meaning of the Court’s precedents.
  • At Greenwire, Lawrence Hurley argues that “Justice was blind to some facts” in the Court’s recent Sackett v. EPA opinion.
  • Simon Meiners and Perry Stein of The New Republic report on the Court’s “ineffective archival methods.”


Recommended Citation: Joshua Matz, Friday round-up, SCOTUSblog (Mar. 30, 2012, 8:29 AM),