With the end of the Term looming, all eyes are on the Court in anticipation of a decision in the challenges to the Affordable Care Act (ACA).  In the Los Angeles Times, Timothy Phelps reports on the process by which opinions are finalized and released, while at Concurring Opinions Nicole Huberfeld suggests that the recent torrent of speculation regarding the case “may speak more to the unpredictability of the Roberts Court than it does to the merits of the arguments.”  At Reason, Peter Suderman outlines what he describes as “the most likely outcomes [of the case] and some of the possible ramifications of each,” and at The Volokh Conspiracy, Ilya Somin discusses a poll (in which he participated) of Supreme Court experts who, “on average, predict a 57% chance that the Court will strike down the individual mandate.”

Other ACA-related coverage focused on the possible significance of Justice Scalia’s criticism – in his new book – of Wickard v. Filburn, the seminal case establishing broad federal power under the Commerce Clause.  Jeremy Leaming of ACSblog argues that “we shouldn’t be surprised” by Scalia’s view, while Damon Root of Reason contends that the book’s criticism isn’t a “game-changer,” because “there was already good reason to think Scalia would vote against” the individual mandate.

Still more coverage considers the possible effects of a decision striking down all or part of the law.  Chad Terhune, Anna Gorman and Erin Loury of the Los Angeles Times report that California stands to lose as much as $15 billion in federal funding if the entire law is struck down, while Phil Galewitz of Kaiser Health News focuses on the effects that the Court’s decision could have on Medicaid. For the Associated Press, Mark Sherman reports on a new poll showing that only a third of Americans support the Affordable Care Act, but that there is “overwhelming support . . . for Congress and the president to begin work on a new bill” if the Court strikes down the law.

Other coverage focuses on Monday’s decisions.  At this blog, Jeffrey Fisher analyzes the decision in Williams v. Illinois, in which Court held that the Confrontation Clause does not bar the admission of expert testimony about the results of DNA testing performed by non-testifying analysts, while Doug Berman of Sentencing Law and Policy concludes that Williams has left him “even more unsure of what we should expect in the three big sets of sentencing cases still pending.”

Also for this blog, Sam Wieczorek discusses the decision in Christopher v. SmithKlineBeecham Corp., in which the Court held that pharmaceutical sales representatives fall under the “outside salesman” exception to the Fair Labor Standards Act.  David Orentlicher of Concurring Opinions addresses some of the arguments in Justice Breyer’s dissent.  [Disclosure:  The law firm of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represented the petitioners in the case.]

Coverage also focused on Monday’s decisions in two Native American cases:  Salazar v. Ramah Navajo Chapter, in which the Court held that the federal government must pay all of the tribe’s contract support costs even if Congress has failed to provide sufficient funds to pay all of the contract support costs owed to all tribes collectively and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, in which the Court held that the federal government waived sovereign immunity from a challenge to its acquisition of land in trust for an Indian tribe.  MSNBC has coverage of Salazar, while Mark Walsh of Education Week’s School Law blog discusses both cases as they relate to education funding and aid. (Thanks to Howard Bashman for the latter link.)


  • In her column for the Washington Post, Ruth Marcus discusses the recent proposal by Laurence Tribe to amend the Constitution to allow for greater regulation of campaign funding, concluding that “[t]hat quixotic enterprise would detract from more practical efforts to tighten rules.”
  • Writing in the Huffington Post, Douglas J. Amy proposes direct election of Supreme Court Justices and term limits on the Court as “two reforms that could make the Court more democratic.”


Posted in Round-up

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Jun. 21, 2012, 9:11 AM), https://www.scotusblog.com/2012/06/thursday-round-up-132/