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Thursday round-up

With the Court still in recess, the fall-out from last week’s arguments on the constitutionality of the Affordable Care Act continues to dominate the headlines.

As Nabiha and Conor noted in the Tuesday and Wednesday round-ups, coverage has shifted towards the President’s comments expressing confidence that the Court would uphold the Affordable Care Act and his subsequent efforts to clarify his position. The editorial board of the Los Angeles Times lists “several things wrong” with the President’s initial remarks, while Jared A. Favole of the Wall Street Journal’s Washington Wire blog reports on the reaction of law professor Laurence Tribe, who taught the President at Harvard; Tribe indicated that the President “obviously misspoke” on the matter. James Vicini of Thomson Reuters News & Insight places President Obama’s remarks about the Court in historical context, as do Randy Barnett and Mike Seidman on the PBS NewsHour (video). At the Atlantic, Andrew Cohen posits that “the real question here is not whether President Obama, the constitutional scholar, has gone too far in rendering his opinion about the Constitution and the Care Act but instead whether he has not gone far enough.” Peter Wallsten and Robert Barnes of the Washington Post, Brooks Jackson of (via USA Today), and Mike Sacks of the Huffington Post also have coverage of the President’s remarks, while Sandy Levinson has commentary at Balkinization.

As Lyle reported for this blog, yesterday a Fifth Circuit panel ordered the Department of Justice to clarify the Administration’s position on judicial review following the President’s remarks.  Other coverage comes from Bloomberg’s Laurel Brubaker Calkins, Warren Richey of the Christian Science Monitor, David Jackson of USA Today’s The Oval blog, Sam Stein of the Huffington Post, and Avik Roy of Forbes.  The Associated Press (via NPR) and Martha Neil of the ABA Journal report that Attorney General Eric Holder plans a formal response acknowledging that courts do indeed have the “final say on the constitutionality of statutes.”

Commentary on the substance of the health-care cases continues to roll in as well.  At Constitution Daily, Carl Cecere discusses the Framers’ views on the scope of the Commerce Clause, while at ACSblog, Jeremy Leaming covers recent remarks by former Michigan Governor Jennifer Granholm urging the Court to consider the practical consequences of invalidating the mandate. Writing at the New Republic, Andrew Koppelman compares the progression of the health care cases to the 1918 child labor case Hammer v. Dagenhart. In his column for The Hill, Brent Budowsky argues that a decision invalidating the ACA would “tarnish the reputation of the chief justice and the conservative majority of justices for centuries to come.” In an op-ed for Forbes, Mark W. Hendrickson ties the health-care case to the distinction between positive and negative conceptions of rights.  In the wake of the arguments, Debra Cassens Weiss of the ABA Journal reports on posts debating whether law professors who asserted that the Court would certainly find the health care law constitutional were “lying or just mistaken.”  At the Huffington Post, Terry Connelly predicts that the “Chief Justice will write” a five-to-four opinion either upholding or striking the health care law.

In other health-care-related news, Jennifer Bendery of the Huffington Post and Kim Geiger of the Los Angeles Times report on comments by former Speaker of the House Nancy Pelosi, who followed the President in predicting that the Court will ultimately uphold the constitutionality of the Affordable Care Act. At the Opinion L.A. blog of the Los Angeles Times, Michael McGough     argues that the media was mostly conscientious in taking sound bites from the health-care arguments, and he urges the Court to consider releasing same-day audio for every argument. Louise Radnofsky of the Wall Street Journal’s Washington Wire blog gets the broccoli lobby’s take on the health-care arguments, while Debra Cassens Weiss of the ABA Journal looks to trading and prediction websites handicapping the outcome of the health care cases.

Finally, commentary on Tuesday’s decision in the strip-search case Florence v. Board of Chosen Freeholders continues. [Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the petitioner in Florence.] Several commentators compare the decision in Florence with the health-care cases:  In the New York Times, for example, Maureen Dowd criticizes the Court’s decision in Florence and argues that this Court “is well on its way to becoming one of the most divisive in modern American history.” Linda Greenhouse analyzes the tea leaves of the Florence opinion for the Opinionator blog of the New York Times and cites the decision to illustrate the broader point “that there are obviously tensions and even rifts within the Supreme Court that don’t map readily onto the one-dimensional 5-to-4 narrative. This is the challenge facing Chief Justice Roberts as he tries to lead the court to an outcome.”  In an op-ed for the Chicago Tribune, Andrew Trees complains that “a majority of justices view a strip-search for something as trivial as failing to use a turn signal as perfectly acceptable, but requiring a citizen to buy health care is an unwarranted intrusion on personal liberty.” Other criticism of Tuesday’s decision comes from the editorial board of the Los Angeles Times, which describes the decision as “going too far” and John W. Whitehead at the Huffington Post.  By contrast, in a post at PrawfsBlawg, Michael J.Z. Mannheimer calls the reactions to the decision “somewhat overblown, given the fairly narrow issue resolved by the case.”


  • At this blog, Timothy Coates analyzes the Court’s opinion in Rehberg v. Paulk, in which the Court held that a witness in a grand jury proceeding is entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial.
  • At Forbes, Steve Forbes praises the Court’s decision in Sackett v. EPA.
  • CrimProf Blog reviews an article by David Cole on the place of Holder v. Humanitarian Law Project in First Amendment doctrine.
  • Debra J. Groom of the Syracuse Post-Standard reports that the Court denied cert. in the case of a New York man convicted on child pornography charges.
  • At the Volokh Conspiracy, David Bernstein discusses (and asks readers for suggestions on) which Court cases have the most “ridiculous reasoning.”
  • The Associated Press (via the Washington Post) reviews a book about the world of Supreme Court clerks.
  • Bruce Vielmetti of the Milwaukee Journal-Sentinel reports on recent remarks by Justice Kagan at the Marquette University School of Law.

Recommended Citation: Kiran Bhat, Thursday round-up, SCOTUSblog (Apr. 5, 2012, 10:06 AM),