Friday round-up
on Jun 29, 2012 at 1:14 pm
On Thursday, after the nation spent months transfixed by one of the highest-profile Supreme Court cases in living memory, the Court announced its long-awaited opinion in the challenges to the Affordable Care Act. It also issued its opinion in United States v. Alvarez (holding that the Stolen Valor Act, which makes it a crime to lie about having received military honors, violated the First Amendment) and dismissed First American Financial Corp. v. Edwards as improvidently granted.
The Affordable Care Act decision – in which the Court rejected the challenge to the constitutionality of the individual mandate but held that the Act’s Medicaid expansion provisions violated the Constitution – dominated news coverage; Lyle has extensive coverage and analysis of the decision here and here, while Amy summarizes the complex opinion in Plain English.
Other coverage of the opinion comes from NPR, the New York Times, the Los Angeles Times, the Wall Street Journal, the Washington Post, BBC, the (UK) Guardian, the Boston Globe, CBS, Constitutional Law Prof Blog, the Washington Times, the Philadelphia Inquirer, the Miami Herald, ABC News, Reuters, The Atlantic, the Chicago Sun-Times, the Consumer Law & Policy Blog, Bloomberg Government (here and here), and USA Today. Reuters describes five ways that “the ruling affects you,” USA Today reports on how “average Americans” view the ruling, and James Morone of the New York Times identifies seven consequences of the ruling.
Analysis of the opinion abounds. SCOTUSblog is hosting a symposium and has already posted brief essays by Adam Winkler, Richard Epstein, Randy Barnett, Alan Morrison, Laurence Tribe, Gillian Metzger, Jonathan Adler, Ilya Somin, Robert Alt, David Kopel, Clark Neily, Ilya Shapiro, David Bernstein, and Erwin Chemerinsky. Laurence Tribe at The Daily Beast and the Charlie Rose Show (video), Jed Purdy at The Huffington Post, Deborah Pearlstein at Balkanization, Michael Dorf at Dorf on Law and the Wall Street Journal Law Blog (video), John Fabian Witt at Balkanization, Nicole Huberfeld at Concurring Opinions, Judge Richard Posner at Slate, Brad Plumer of the WonkBlog, Tim Graney at Health Reform Watch, Timothy Jost at Health Affairs Blog, Lawrence Solum at Legal Theory Blog, Ed Whelan at National Review Online, and Andrew Koppelman at Salon, also share their thoughts. The Daily Beast offers reactions from sixteen experts, as well as a digital version of the opinion with expert commentary. CATO@Liberty has posted a video with responses from several Cato Scholars, the (UK) Guardian has its own slate of experts, Politico identifies six takeways, and CNN reports on reactions by prominent healthcare associations. In the Boston Review, David Johnson discusses the ruling with Pam Karlan. TIME Magazine has announced that it will publish a special issue devoted to the healthcare decision (some parts of which are already posted). The Associated Press (via the Washington Post) rounds up reactions by prominent politicians.
The Court’s opinion has drawn praise and criticism. President Obama delivered this statement (via YouTube Video) in reaction to the Court’s announcement; the Wall Street Journal covers Mitt Romney’s comments. Jessica Arons at The Daily Beast calls the ruling a win for women, while Julie Bolcer at The Advocate reports on praise from LGBT leaders; Stacey Long has similar coverage for The Huffington Post. Other support for the decision comes from The American Prospect, Eugene Robinson in the Washington Post, Bob Crittenden in the Seattle Times, Spike Dolomite Ward in the Los Angeles Times, Paul Krugman in the New York Times, and E.J. Dionne, Jr. in the Washington Post, as well as editorials in the San Jose Mercury News, the Chicago Sun-Times, the Oakland Press, the Fresno Bee, the Anniston Star, and the Sun Sentinel.
Criticism of the opinion comes from Ilya Somin in the New York Daily News, Yuval Levin at National Review Online, Stephen B. Presser at CNN, Roger Pilon at Real Clear Politics, the editorial board of the National Review, Richard Epstein in the New York Times, and David Rivkin, Jr. and Lee Casey in the Wall Street Journal. The editorial board of the New York Times offers a mixed assessment of the Court’s decision, characterizing it as “a moderate ruling with risks ahead.” The Washington Post and Bloomberg both characterize the decision as “vindication” for Solicitor General Donald Verrilli.
Neal Katyal writes in the New York Times that the victory is “Pyrrhic” and warns against the broader dangers of “a legal context that is becoming less and less democratic”; David Brooks, also in the New York Times, praises the Chief Justice for “taking the court off center stage and [] letting the political process play out.”
The Chief Justice’s role in providing the critical fifth vote to uphold the individual mandate – widely described as a surprise – was the subject of coverage from Greg Stohr of Bloomberg Businessweek, Nancy Benac of the Associated Press, Adam Liptak of the New York Times, Brad Heath of USA Today, David Goldstein of McClatchy Newspapers, Dan Eggen of the Washington Post, and Joan Biskupic of Reuters. Commentary on the Chief Justice’s vote comes from Jeffrey Rosen in an interview with NPR, Ross Douthat in the New York Times, Linda Greenhouse in The New York Times, Andrew Rosenthal of the New York Times, Dana Milbank of the Washington Post, and John Dean at Verdict. At the Volokh Conspiracy, David Bernstein speculates that the Chief Justice originally voted against the individual mandate, but later changed his mind; at that same blog, Orin Kerr offers a skeptical take on that claim. David Franklin at Slate and Charles Krauthammer at National Review Online argue that the Chief Justice voted to uphold the mandate to protect the Court. Orin Kerr at the Volokh Conspiracy and Benjamin Wittes at Brookings warn against questioning the Chief Justice’s bona fides as a conservative on the basis of his vote. Efforts to draw an analogy between the Chief Justice’s opinion and Chief Justice John Marshall’s famous decision in Marbury v. Madison are examined by Chris Geidner at The Daily Beast, Mark Moller at CATO@Liberty, Daniel Epps at The Atlantic, and Steve Vladeck at PrawfsBlawg. Ruth Marcus writes in the Washington Post that the Chief Justice kept the Court “on its axis.” At his Wonkblog, Ezra Klein notes the Chief’s “political genius,” while Jeff Shesol argues in Slate that “the lionization of John Roberts does not withstand a reading of his opinion.” Gerard Magliocca of Concurring Opinions charges the Chief Justice with “gratuitious dicta” on the Commerce Clause, while Howard Wasserman of PrawfsBlawg questions the Chief Justice’s sequential approach to commerce and tax analysis.
Coverage of the taxing power section of yesterday’s decision comes from Jack Balkin at Slate and CNN, Floyd Norris of the New York Times, Donna Smith and Joan Biskupic at Reuters, Neil Siegel at Balkinization, Orin Kerr and Ilya Somin at the Volokh Conspiracy, Rick Hills at PrawfsBlawg, and K. William Watson at CATO@Liberty. Other scholars focus on different aspects of the Court’s individual mandate opinions – David Orentlicher of Concurring Opinions discusses purchase mandates, Russell Korobkin of the Volokh Conspiracy addresses Justice Ginsburg’s commerce arguments, and Joseph Blocher of Concurring Opinions assesses the Chief Justice’s Commerce Clause reasoning
Turning to the Medicaid expansion ruling, commentators immediately joined battle over the implications of the Court’s coercion analysis. Kevin covers the opinion for this blog (here and here and here). Ilya Somin at the Volokh Conspiracy writes that “just how significant it turns out to be remains to be seen.” In Slate, Matthew Yglesias reports on Nancy Pelosi’s argument that states will not opt out of the Act’s Medicaid expansion (a point seconded by Abby Rapoport in The American Prospect, though CBS reports on a different view), while Darshak Sanghavi charges that the Medicaid decision “will make it much harder to extend health insurance to America’s poor.” Garrett Epps argues in The American Prospect “the wound is not only not mortal, it may not even really be a wound.” Additional commentary on the potential significance of the Medicaid coercion ruling can be found at ProPublica, Grits for Breakfast, Sentencing Law and Policy Blog, Bloomberg Government (here and here), and the New Orleans Times-Picayune.
A number of analysts emphasized that, even as they lost on the individual mandate, conservatives arguably won key battles in the Court’s opinion. Randy Barnett at The Daily Beast, George Will at the National Review Online, Frank Pasquale at Balkinization, Jonathan Cohen of The New Republic, and Warren Richey of the Christian Science Monitor each advance some version of this claim. At Balkanization, Joey Fishkin disagrees and describes the opinion as “a massive victory for liberalism.”
Several journalists also reported on their experience at the Court yesterday, including Tony Mauro at the Blog of the Legal Times, Aram Roston at The Daily Beast, Jill Jackson of ABC, and a reporter for the Associated Press. Others discuss the dramatic scene outside the Court; coverage comes from Lloyd Grove of The Daily Beast, Kimberly Railey of the Christian Science Monitor, Jessica Wehrman of the Columbus Dispatch, and Amy Bingham of ABC News. In Bloomberg, Stephen Carter argues that the Court’s most impressive achievement may have been keeping the decision a secret until its announcement this morning. The Hill presents a minute-by-minute recap of the ruling.
Looking forward, many commentators have focused on potential political fall-out of the decision: John Dickerson and Katy Waldman at Slate, James Surowiecki of The New Yorker, Noam Scheiber of The New Republic, the Associated Press (via the Washington Post), the Los Angeles Times, Reuters, Bloomberg Businessweek, Politico, the Christian Science Monitor, the Denver Post, U.S. News & World Report, the San Francisco Chronicle, NPR (here and here), CNN, Fox News, the Wall Street Journal, the Boston Globe, The Hill (here and here and here), the New York Times, Jay Bookman of the Atlanta Journal-Constitution, Talking Points Memo, and Timothy Egan of the New York Times. The Washington Post offers an annotated photo-gallery of “instances when the high court has dipped into political fights.” The Boston Globe, Talking Points Memo, and the Boston Herald report on reactions by the family of the late Senator Edward Kennedy.
Potential economic fall-out from the Court’s decision drew coverage from the Washington Post (here and here), the New York Times, the San Francisco Chronicle, Bloomberg Businessweek, the Wall Street Journal (subscription required), The Huffington Post, McClatchy, and Avik Roy of Forbes.
Other reporters have begun to explore the policy and political challenges that may persist beyond the Court’s ruling, including Atul Gawande of The New Yorker, Ed Kilgore of The New Republic, CNN, USA Today, the Christian Science Monitor Editorial Board, and Theda Skocpol and Lawrence Jacobs in the New York Times, and a panel of experts in the New York Times “Room for Debate” section. In a related vein, many journalists have emphasized local implications of or reactions to the Court’s decision. The Seattle Times focuses on Washington State, the Associated Press (via Bloomberg) on Massachusetts, the Los Angeles Times on California, the Salt Lake Tribune on Utah, The Huffington Post on Michigan, the Associated Press (via the San Francisco Chronicle) on Mississippi, the Rapid City Journal on South Dakota, the Chicago Tribune on Illinois, and the Associated Press (via the Wall Street Journal) on New York. Brian Wolfman of the Consumer Law and Policy Blog argues based on the Massachusetts experience that “the Affordable Care Act’s goal of greatly reducing the number of uninsured Americans could be realized in the coming years.”
On a lighter note, Ezra Klein’s Wonkblog covers “the six funniest reactions” to the ruling.
Coverage of yesterday’s decision in Alvarez v. United States comes from Wired, the New York Times, Reuters, the (UK) Daily Mail, Politico, the Salt Lake Tribune, USA Today, the Wall Street Journal, Constitutional Law Prof Blog, ABC News, the Washington Post, the Los Angeles Times, the Associated Press (via the Washington Post), CNN, ABA Journal, Constitution Daily, and UPI. The Los Angeles Times reports that the opinion has prompted angry reactions. James Dao of the New York Times covers efforts by a private individual to create a database of military honors, which Justice Kennedy suggested may help counteract false claims.
Tejinder analyzes Alvarez for this blog; Mary-Rose Papandrea of Concurring Opinions, Eugene Volokh of the Volokh Conspiracy, and Aaron Caplan at ACS Blog also offer assessments of the decision.
Finally, the Court dismissed First Amendment Financial Corp. v. Edwards – a case about what limits Article III of the Constitution places on Congress’s power to create statutory rights enforceable through a private right of action – as improvidently granted. The Civil Procedure & Federal Courts Blog notes the dismissal. For this blog, Kevin reports on “the Court’s surprise punt in a case that many (including myself) thought would be the sleeper case of the Term.” At Concurring Opinions, Gerard Magliocca asks whether “these types of dismissals, which seem to happen at least once towards the end of many Supreme Court terms, should be renamed the ‘we ran of out of time to finish this opinion’ order.”
Coverage of the Court’s immigration opinion earlier this week in Arizona v. United States also continues apace. MSNBC (video) reports on Arizona’s “ripple effects,” while FOX reports on continued efforts by the opponents of S.B. 1070 to combat the “show me your papers” provision.
End-of-Term assessments have already begun. At Wired, David Kravets argues that “the term’s overall outcome was mixed at best” – notwithstanding praiseworthy opinions regarding “surveillance, the First Amendment, intellectual property and even profanity,” the Court “let stand rulings upholding torture, a $675,000 verdict for file-sharing 30 music tracks, and, among other things, skirted educators’ demands that it clarify on what grounds public schools may punish students for their off-campus, online speech.” At PrawfsBlawg, Steve Vladeck describes the 2011 Term as “a shockingly successful one for progressives — especially if one considers the bullets that were dodged.” The editorial board of the Salem News argues that the Court’s immigration and healthcare rulings are both “big wins for Obama.” And at The Huffington Post, Jim Wallis discusses decisions “that will have an impact on the lives of many in this country.”
Briefly:
- Tejinder covered the Court’s Anti-Injunction Act holding in the health care cases for this blog.
- At this blog, Tom wishes the Solicitor General a happy birthday.
- William Yeomans argues in Politico that the healthcare ruling “was the culmination of a frenzy that emphasized the political nature of the Supreme Court and exposed it as an archaic institution in desperate need of a modernizing makeover.”
- Tom Cohen of CNN argues that, regardless of what it does, the Court is seen as political.
- Chris Cillizza of the Washington Post presents Justice Scalia with a “Worst Week in Washington” award.
- The Economist argues that the Court’s politics are “finely balanced.”
- The Election Law Blog and Lawyers Committee on Civil Rights report on the Court’s denial of cert. in a case involving Arizona’s refusal to accept federal voter registration forms without proof of citizenship (held by the en banc Ninth Circuit to be preempted by the National Voter Registration Act).
