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Friday round-up

The Affordable Care Act – and disputes over the Court’s role in deciding the case – continue to dominate coverage.

Yesterday, the Department of Justice filed a three-page, single-spaced memo in response to an order by Judge Smith of the Fifth Circuit asking the Administration to clarify its views regarding judicial authority to invalidate unconstitutional laws.  Lyle covered the memo for this blog; other coverage comes from Bloomberg, CNN, Reuters, ACSblog, the Washington Post, the Blog of the Legal Times, the Christian Science Monitor, Politico, Constitutional Law Prof Blog, the New York Times, ABC News, USA Today, the Los Angeles Times, and the Associated Press.  At Balkinization, Jack Balkin criticizes Judge Smith for requesting the memo; at the Washington Post, Charles Krauthammer criticizes President Obama’s comments about the Court; at Lawfare, Jack Goldsmith steps back and comments that “[j]ust about every player in connection with the President’s remarks about the Supreme Court seem to me to be acting oddly or imprudently.”

Commentators also debated the Court’s relationship with the President.  Greg Stohr and Seth Stern of Bloomberg Businessweek warn that “taking on the court would mean fighting an institution that polls show is historically the most admired branch of government,” while Anne Gearan of the Associated Press reports that President Obama may be planning to make the Court a major campaign issue.  Andrea Tantaros of the New York Daily News, Peter Ferrara of Forbes, and Jeffrey Kuhner of the Washington Times criticize Obama’s recent remarks about the Court, Michael Tomasky of the Daily Beast defends the “heart of [Obama’s] criticism,” and Eric Segall of the Huffington Post offers thoughts on what Obama should have said about the Court and the Affordable Care Act.  Richard Wolf of USA Today and Michael Doyle and David Lightman of McClatchey Newspapers offer historical perspective on disputes between presidents and the Court; at Balkanization, Rick Pildes warns against too-easy analogies to FDR, noting that “it is also important to realize just how different that moment was — in terms of both the Court and the political branches — than where we are for now.”

In other commentary on the ACA, Harvey Rosenfield  argues in the Huffington Post that the Court will invalidate the ACA in a fit of anti-government ideology, while Aziz Huq warns at NPR that “the Court may be ready to embark on a dramatic reconstruction of federal-state relations.”  Ilana Haramati and Michael A. Zuckerman contend in an op-ed at CBS that “striking down the healthcare law may require reverting back to Lochner era conceptions of the Constitution”; David Ariosto of CNN also discusses Lochner in relation to the ACA.  At the Huffington Post, Nan Aron argues that “the true crisis of this case is the emergence of the broadly held view that this is a political Court with an ideological agenda.”  Dick Polman echoes this theme in the Phildelphia Inquirer, noting that “it’s naive for us to assume the justices have ever been insulated from partisan emotion.”  At the Wall Street Journal Law Blog, Joe Palazzolo reports on Justice Scalia’s comments at the University of Southern Mississippi, where he told students that the Justices “don’t respond to criticism.  Judges use what’s known as the rope-a-dope trick.  It’s judicial tradition.”

In other Affordable Care Act news:  Joan Biskupic of Reuters reports that “[d]uring three days of arguments … Justice Elena Kagan put on a display of rhetorical firepower, reinforcing predictions that the newest liberal justice is best equipped to take on the conservative, five-man majority controlling the bench”;  Sylvia Rusnak of the Cornell Daily Sun discusses reactions to and predictions regarding the oral argument by Cornell faculty; Mitch Berman argues at Balkinization that “Paul Clement’s arguments to the effect that the Medicaid provisions of the ACA are unconstitutionally coercive are mistaken … [but] his conclusion is nonetheless correct”; and Mary Dudziak, also at Balkinization, contends that Justice Kennedy’s co-authored opinion in Planned Parenthood v Casey provides a ready template for the stare decisis section of an opinion upholding the ACA.

The Court’s opinion in the strip-search case of Florence v. Board of Chosen Freeholders also drew additional commentary. [Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the petitioner in Florence.].  At TIME, Adam Cohen argues that “the court’s 5-4 ruling turns a deeply humiliating procedure – one most Americans would very much like to avoid – into a routine law enforcement tactic.”  Writing at ACSbog, Angela J. Davis criticizes the majority opinion and notes that, when Florence is linked to other search and seizure cases allowing broad official discretion, “the consequences could be devastating for young black and Latino men, who are stopped, searched and arrested in numbers far greater than their similarly situated white counterparts.”  NPR‘s “On Point with Tim Ashbrook” hosted a discussion with Orin Kerr, Erik Luna, and Susan Chana Lask to discuss the case; at the Volokh Conspiracy, Orin shares a few additional thoughts about the opinion.


  • For this blog, Sam Wieczorek previews Christopher v. SmithKline Beecham Corp., a case about the “outside salesmen” exemption to the Fair Labor Standards Act.
  • Kedar Bhatia has posted an updated OT11 Stat Pack, noting that “the Supreme Court is well above its normal pace of opinions for the Term, having released 37 signed opinions and 7 summary reversals.”
  • For this blog, Allison Orr Larsen discusses her recent study of Supreme Court fact-finding; she concludes that “as the pace of accessing information accelerates exponentially – and judges are understandably tempted to take advantage of it – we need to seriously contemplate the implications of in-house judicial fact finding and to update our approach to accommodate them.”
  • The Lexington Herald Leader and the Associated Press (via the Washington Post) cover Justice Thomas’s recent visit to the University of Kentucky.
  • Lynnley Browning of Reuters reports on a new study showing that “the government won 61 percent of the 137 cases heard by the Supreme Court from 1909 through 2011 that involved allegations by the federal government of abusive tax-motivated transactions by corporations.”
  • Wired reports on Bowman v. Monsanto Co. and discusses the Court’s recent CVSG in that case.
  • Adam Hersh of Penn Political Review’s Soapbox Magazine provides colorful commentary on Justice Sotomayor’s visit to the University of Pennsylvania, where she delivered wide-ranging remarks and a scholarship was named in her honor.

Recommended Citation: Joshua Matz, Friday round-up, SCOTUSblog (Apr. 6, 2012, 4:58 PM),