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Wednesday round-up

Although the Court was in recess yesterday, coverage of (and commentary on) last week’s arguments on the constitutionality of the Affordable Care Act continued.

As Nabiha noted in yesterday’s round-up, the most recent coverage shifted away from the arguments themselves to recent comments by the President expressing his confidence that the Court would uphold the Act, as well as his subsequent efforts to clarify those remarks.  Roger Runningen and Hans Nichols of Bloomberg report on the story, as do Mark Landler of the New York Times, Richard Wolf and David Jackson of USA Today, Laura Meckler and Carol E. Lee of the Wall Street Journal (subscription required), Warren Richey of the Christian Science Monitor, Carrie Budoff Brown and Jennifer Epstein of Politico,  Jeff Mason at Thomson Reuters News & Insight, Scott Horsley of NPR, Adam Sorensen at Time, Joe Palazzolo of the Wall Street Journal Law Blog, and the Associated Press. 

Reactions to the remarks ranged from indifferent to indignant.  At the Volokh Conspiracy, Orin Kerr remarks that “[t]aken in context, President Obama’s statement strikes me as pretty much what you’d expect a politician to say in such circumstances.”  The Wall Street Journal’s editorial board, on the other hand, called the remarks “astonishing,” while at Cato@Liberty Roger Pilon responds that “Obama is losing it,” and Ruth Marcus at the Washington Post’s Post Partisan blog characterizes the President’s remarks as “unsettling.”  The editorial board of the Washington Post describes the President’s clarification of his comments as “a far more nuanced and appropriately phrased argument” than the original remarks themselves.  Also weighing in on the President’s remarks were David Bernstein at the Volokh Conspiracy, Howard Wasserman at PrawfsBlawg, Joe Palazzolo at the Wall Street Journal Law Blog, Greg Sargent of the Washington Post’s The Plum Line blog, and Jennifer Rubin at the Washington Post’s The Right Turn blog.

Turning to the substance of the Affordable Care Act challenges, at the Volokh Conspiracy Orin Kerr compares the Act with President Bush’s strategy for the war on terror, explaining that “both policies boil down to judicial deference versus constitutional norms seen as embedded in the text.”  In an op-ed for the Los Angeles Times Vikram Amar and Alan Brownstein argue that “[t]here is no intellectually honest basis for concluding that the individual mandate will create a steeper slope less susceptible to judicial or political handholds and footholds than those slopes that already exist under current and accepted doctrine.”  And at CNN’s Global Politics Square blog Ilya Shapiro emphasizses that “[t]hose of us who have been challenging the constitutionality of the individual health insurance mandate have been serious the whole time.”

Commentary also centered on the lawyers who appeared before the Court last week.  In an op-ed for the Washington Post, Supreme Court veteran James A. Feldman takes to task some of the recent critics of Solicitor General Donald Verrilli: “The only good measures of a Supreme Court advocate are whether he has made the best arguments in favor of his position and whether the justices understand those arguments.  In this respect, Verrilli succeeded.”   Tony Mauro at the Blog of the Legal Times reports that Robert Long, the attorney appointed by the Court to argue the Anti-Injunction Act segment of the health care challenge, has stated that “‘there appears to be no justice’ who believes the anti-injunction law should keep the Court from getting to the merits of the health care law challenges.”  And at the Atlantic, Andrew Cohen discusses what he characterizes as an inconsistency between the arguments that Paul Clement made last week on the individual mandate and those that he is making this week defending the Defense of Marriage Act in the First Circuit.

Monday’s decision in Florence v. Board of Chosen Freeholders, in which the Court held that jail strip searches do not require reasonable suspicion, at least so long as the arrestee is being admitted into the general jail population, continues to generate coverage, including from Nina Totenberg at NPR, Inimai Chettiar at ACSblog, Jan Hefler and Mark Fazlollah at the Philadelphia Inquirer, and Jason Grant at the Newark (N.J.) Star-Ledger.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents the petitioner in Florence.]  And Michael Haggerson of JURIST covers one of Monday’s other decisions, in Rehberg v. Paulk.


  • Jess Bravin of the Wall Street Journal reports that Senator Patrick Leahy, chairman of the Senate Judiciary Committee, has asked the Justice Department “to clarify a ‘potentially misleading statement’ government lawyers made to the Supreme Court” in Nken v. Holder, a 2009 immigration case.
  • At PrawfsBlawg Michael Waterstone analyzes the Court’s opinion in Coleman v. Court of Appeals of Maryland and sees “an undercurrent on the divergent views of the role of employment discrimination and the acknowledgment of unconscious bias.” .
  • Lawrence Hurley at Environment & Energy News covers the Court’s recent cert. grant in Arkansas Game and Fish Commission v. United States, in which the Justices will consider whether purposefully flooding land is a Fifth Amendment taking.
  • Remarking on the Court’s recent publicity, Adam Frank of the NPR blog 13.7 asks “What if we created a Supreme Court of the Future?”

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Apr. 4, 2012, 10:42 AM),