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Thursday round-up

Commentary on the imminent decision in the challenge to the Affordable Care Act continues to dominate coverage of the Court. Defending the law, Samuel Estreicher argues in the New York Law Journal that it would be “a constitutional blunder” to overturn the individual mandate, while in the National Law Journal, Robert Weiner imagines a Socratic dialogue between a supporter and an opponent of the law.

Other coverage focused on the possible implications if the Court were to strike down all or part of the law: Brian Faler of Bloomberg News reports on remarks by the Director of the Congressional Budget Office, who has indicated that – depending on the precise nature of its ruling — the Court’s decision could save hundreds of billions of dollars, or it could add to the deficit.  Sam Baker of The Hill reports on some of the choices that Republicans in Congress will face if the law is struck down, while in an op-ed in The Wall Street Journal, Karl Rove argues that a decision striking down the law would give President Obama the opportunity to “pivot to the center and regain some of the high ground he occupied in his 2008 campaign.”  Finally, Peter Suderman of Reason contends that the most substantial change stemming from a decision striking down the ACA would be that “ObamaCare would be discredited, legally and politically —potentially clearing a path to more effective health care reforms.”

Other coverage of and commentary on the pending ACA challenges focus on the expected role of Justice Anthony Kennedy: Greg Stohr of Bloomberg News suggests that the Justice’s health-care vote “may turn whether he sees the law as too intrusive, particularly the requirement that Americans either get insurance or pay a penalty,” while Dahlia Lithwick of Slate describes him as “almost perfectly fit[ting] the profile of the mysterious and alluring swing-voter, that vanishing Independent whose vote is truly in play. He is quite conservative, but he exhibits brief moments of progressivism on issues that raise questions of basic justice and dignity—from gay rights to prisoner abuse.”  In  The New York Times, James B. Stewart explores the history of the broccoli-based rhetoric in the case, noting that “broccoli has captured the public imagination and become the defining symbol for what may be the most important Supreme Court ruling in decades.” And in the same paper’s Opinionator blog, Linda Greenhouse parses the tea leaves from last week’s decision in Armour v. City of Indianapolis, in which the Court rejected an equal protection challenge to the city’s tax scheme, which forgave future installment payments for new sewage infrastructure but refused to refund taxpayers who paid the entire assessment up-front; she suggests that “the Indianapolis case has all the appearance of a proxy war that must be about some bigger issue than these homeowners’ particular plight.”

Campaign finance is also back in the news, with the Court scheduled to consider American Tradition Partnership, Inc. v. Bullock, the challenge to the Montana Supreme Court ruling upholding a statute that bans corporate spending in state elections, at its Conference today.  Coverage comes from David G. Savage and Melanie Mason of the Los Angeles Times and Ariane de Vogue of ABC News.  Marcia Coyle of profiles Anthony Johnstone, the University of Montana law professor leading the effort to save the Montana law. Sarah Wheaton of the Caucus blog of The New York Times reports that David Axelrod, communications director for President Obama’s reelection campaign, floated the idea of a constitutional amendment to permit stronger regulation of campaign finance; more detailed proposals in the same vein come from Geoffrey R. Stone, writing in the Huffington Post, and Laurence H. Tribe, writing in Slate.

Other coverage focused on the Obama Administration’s supplemental brief in Kiobel v. Royal Dutch Petroleum, the case in which the Court heard oral argument earlier this year but then scheduled for re-argument again next Term.  For this blog, Lyle Denniston writes that “[t]he supplemental government brief offered a complex argument, attempting to move between a sharply negative view of lawsuits by private individuals that focus on foreign conduct, and an unwillingness to say that no ATS lawsuit should ever be allowed in a U.S. court for overseas breaches of international law.” Further discussion of the brief comes from John Bellinger of Lawfare, who describes the filing as “a surprising development” and notes that “the State Department apparently declined to sign the brief.”

Coverage also focused on Monday’s order list, and in particular the Court’s announcement that it would not review several cases arising out of the war on terror.  The editorial board of The New York Times condemns the Court’s denial of certiorari in seven cases filed by Guantánamo Bay detainees as a “retreat from habeas” and “devastatingly clear [evidence] that the Roberts court has no interest in ensuring meaningful habeas review for foreign prisoners.”  And at Constitutional Law Prof Blog, Steven D. Schwinn discusses the Court’s denial of certiorari in Lebron v. Rumsfeld, in which the so-called “dirty bomber” Jose Padilla sought review of a decision by the Fourth Circuit holding that he could not maintain a Bivens action against former Defense Secretary Donald Rumsfeld and others for alleged torture, writing that “[t]he Court’s rejection . . . lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach.”


  • In a pair of posts at Verdict and Dorf on Law, Michael Dorf explores the federal courts issues raised by this week’s decision in Elgin v. Department of the Treasury, in which the Court held that the Merit Systems Protection Board provided the exclusive forum for judicial review of adverse employment action against government employees covered by the Civil Service Reform Act, including when the employees bring constitutional claims that the MPSB lacks the authority to decide.
  • Aria Beard Rau and J.J. Hensley of The Arizona Republic (via USA Today) report that Arizona Governor Jan Brewer has “issued an executive order requiring the Arizona Peace Officer Standards and Training Board to redistribute to all law enforcement agencies by Friday a training video originally sent out when the law passed two years ago,” in anticipation that the Court will uphold S.B. 1070, the state’s controversial immigration policy, in Arizona v. United States.

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Jun. 14, 2012, 10:15 AM),