The weekend’s clippings continued to focus on last week’s oral arguments in the challenge to the Affordable Care Act. NPR has two segments on the case from this weekend: the first is an interview with Nina Totenberg and Julie Rovner, and the second is with E.J. Dionne and David Brooks.

Reuters’s James Vicini and Joan Biskupic report that, in all likelihood, the Justices cast their preliminary votes at conference on Friday; however, they add that “no leaks are likely before formal opinions have been written and announced from the bench” in late June. Covering the same Friday conference, Adam Martin at the Atlantic Wire agrees that a leak is unlikely, but notes that “the health care decision [is] the most sought-after scoop in D.C.” and already has journalists “salivating.”

Commentators dispute whether, if the Court strikes down the law, the decision will constitute “judicial activism.” The editorial board of the New York Times argues that such a ruling would signal the Court’s “willingness to replace law made by Congress with law made justices.” Writing for Slate, Rick Hasen opines that a “5-4 decision striking the law down for exceeding congressional power will reveal a … Court unafraid of ignoring well-established legal precedent in favor of its own ideological preferences.” As the Los Angeles Times’s David Savage reports, a number of Reagan administration lawyers have recently “worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.” And voicing similar concerns, Eric Schepard at the Christian Science Monitor urges the Court not to overrule the law. The Wall Street Journal, however, responds that “[t]he activism charge is a political canard intended to obscure these grave issues and intimidate the Court.”

Additional commentary included more predictions of how the Court might rule, as well as discussion of possible political consequences and the decisions facing Justice Anthony Kennedy and Chief Justice John Roberts. David Savage of the Los Angeles Times predicts that the Justices will hold the law unconstitutional, but the editorial board of the Los Angeles Times believes that “reports of the death of the law may be greatly exaggerated.” At Businessweek, Joshua Green hones in on the potential impact of a decision against the law, speculating that, “[A]lthough a negative ruling could conceivably catalyze liberals … [i]t seems much more likely … that such a ruling would hurt Obama, possibly quite badly.” The Wall Street Journal’s Dante Chinni concludes that “the issue is difficult to project into the fall.” Also at the Wall Street Journal, Jess Bravin discusses the considerations—both legal and strategic—that Chief Justice Roberts may take into account when he decides how he will vote. Chicago Tribune columnist Clarence Page and the Daily Beast’s Peter Boyer try to determine how Justice Kennedy might vote from his comments at oral arguments.


  • The Associated Press’s Ricardo Alonso-Zaldivar covers the Medicare payroll tax.
  • At the Volokh Conspiracy, Orin Kerr rejects claims that legal elites were surprised by the oral arguments because they are out of touch with conservative thought.
  • At the Atlantic, Andrew Cohen offers some final thoughts on the oral arguments.
  • In the wake of last week’s oral arguments, Chicago Tribune columnist Jules Witcover reiterates the arguments in favor of televising the Court’s proceedings.
  • In an interview with Brad Joondeph, the Washington Post’s Sarah Kliff explores how the arguments against the Affordable Care Act gained traction over time.
  • At Jost on Justice, Kenneth Jost argues that the comments at oral arguments demonstrate that the conservative Justices do not fully grasp the economics of the health care market.
  • Michael Kirkland of UPI discusses the impact of the Court’s recent opinion in Sackett v. EPA, in which the Court held that the Administrative Procedure Act allows citizens to challenge EPA actions as soon as they received a compliance order, rather than waiting for the EPA to enforce the order against them.


Posted in Round-up

Recommended Citation: Marissa Miller, Monday round-up, SCOTUSblog (Apr. 2, 2012, 9:48 AM),