Breaking News

Thursday round-up

The long wait is nearly over. At ten o’clock this morning, the Court will release the final three opinions of the Term. As ever, the lion’s share of the coverage focuses on the challenge to the Affordable Care Act.  At this blog, Lyle Denniston has a reader’s guide to the ruling, while Amy Howe summarizes the issues raised by the case in Plain English.  Ezra Klein of The Washington Post’s Wonkblog discusses four ways the Court could “split the difference” in its ruling, while Bill Mears of CNN considers five possible outcomes. The Kaiser Family Foundation has also released a primer on the case, and Ekow N. Yankah discusses the reasoning behind the law for ACSblog. Meanwhile, NPR focuses on the ACA’s expansion of Medicaid. Over at the Volokh Conspiracy, Randy Barnett and Ilya Somin have posted their reflections on the eve of the decision. Further coverage of the case comes from Jeffrey Young at the Huffington Post, Michael E. Ruane at The Washington Post, Brent Kendall, Louise Randofsky, and Jess Bravin of the Wall Street Journal, and Reuters.

Predictions have been pouring in, with Tom Goldstein of this blog predicting that the individual mandate will survive, joined by Linda Greenhouse at the Opinionator blog of The New York Times. Michael Tomasky of the Daily Beast predicts that the mandate will be struck down, as do Ed Whelan and Carrie Severino of the National Review. At Slate, Walter Dellinger predicts that the Court will provide a partial victory for both sides. The online prediction market Intrade is offering odds of roughly 3-to-1 that the mandate will fall, but Nate Silver of the FiveThirtyEight blog of the New York Times argues that such confidence is unjustified.

Post-mortems have also begun, with Walter Dellinger at Slate considering where to spread the blame if the ACA falls, and Simon Lazarus of The New Republic blaming the White House for failing to adequately defend the law. At the New Yorker, John Cassidy argues that regardless of the outcome of this particular case, conservative legal activists have “already won,” while Andrew Koppelman writes for Salon that an opinion striking down the ACA could enshrine “anarchist libertarian” principles in the Constitution.  Meanwhile, Tim Cavanaugh of Reason criticizes supporters of the law for “pregame rationalizations” of this morning’s ruling, and Richard Alt of the National Review’s Bench Memos blog argues that no matter what the Court decides, it will be criticized for “judicial activism.”

Other news focuses on coverage of the coverage, including remarks by White House Press Secretary Jay Carney on the White House’s plans to follow the decision.  Coverage of his remarks comes from Reuters, the Wall Street Journal’s Washington Wire blog, and The Los Angeles Times’ Politics Now blog. Konrad Yakabushi of the Toronto Globe and Mail reports that President Obama might campaign against the Supreme Court if it strikes down the ACA, while Dana Blanton of Fox News reports on a recent poll showing public opinion split on the law, and on how Congress should respond if it falls.

The Court itself has also been the subject of a great deal of coverage. NPR provides background on how the Court decides important cases. At Mother Jones, Dave Gilson reports on a recent study by law professors Andrew Martin and Kevin Quinn, while Sheryl Gay Stolberg of The New York Times reports on the possibility of several vacancies on the Court during the next presidential term. For Business Week, Peter Coy discusses speculation that the Justices trade votes in different cases.

Monday’s opinions in Arizona v. United States – in which the Court struck down most of Arizona’s controversial immigration law, S.B. 1070, but allowed the law’s “show me your papers” provision to go into effect – also continue to draw coverage. This blog’s online symposium on the case continues, with contributions from John Eastman and Margaret Stock. At The New Republic, Jeffrey Rosen describes the majority opinion in Arizona as “modest and nuanced in tone and in substance,” and argues that it should serve as a model for today’s ACA opinions. Lauren Gilbert at Immigration Prof Blog provides further coverage of the majority.  Other coverage has focused on Justice Scalia’s dissenting opinion, with the editorial board of the Washington Post characterizing it as a “partisan discredit to the Court,” and Judge Richard Posner in Slate calling for evidence to support the factual assertions in the opinion. Back at the Washington Post, E.J. Dionne calls on Justice Scalia to resign; Ed Whelan comes to the Justice’s defense here. Ethan Bronner of the New York Times provides further coverage of the controversy. Meanwhile, Michael Ramsay of The Originalism Blog criticizes Justice Scalia’s argument that federal power over immigration is an inherent power of sovereignty derived from international law, and Rick Hills of PrawfsBlawg discusses the role of the presumption against preemption in Justice Scalia and Alito’s dissents.  Other coverage focuses on the practical effects of the decision, with Daniel González of The Arizona Republic reporting that many undocumented immigrants are choosing to wait and see how the law will be enforced rather than leave Arizona, and Ted Robbins of NPR reporting that the law is already having a “chilling effect.”

The Court’s decision in the juvenile life-without-parole cases also continues to attract attention. In an op-ed for the New York Times, David S. Tanenhaus describes the decision as part of the Roberts Court’s “liberal turn on juvenile justice,” while Douglas A. Berman of the Sentencing Law and Policy blog considers the implications of the cases for juvenile murderers who were spared the death penalty after the Court’s decision in Roper v. Simmons, which struck down the juvenile death penalty as a violation of the Eighth Amendment. In another post, Berman also questions some of the claims about original intent in Justice Thomas’s dissent in Miller. Steven D. Schwinn of the Constitutional Law Prof Blog points out two “fault lines” in the Court’s Eighth Amendment jurisprudence after Miller, while Bill Otis of the Crime and Consequences blog emphasizes that the majority left open the possibility of life without parole for juvenile offenders as long it is not mandatory.

Other coverage focuses on the Court’s summary reversal of the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock, in which the Court reaffirmed its holding in Citizens United v. FEC. The editors of Bloomberg View criticize the Court’s “cowardice” in refusing to reconsider Citizens United, while CBS Money Watch reports that the decision could lead to further campaign finance deregulation.


  • Alison Frankel of Thomson Reuters reports on the possible implications of this morning’s decision in First American Financial Corp. v. Edwards, involving Congress’s power to create Article III standing, for internet privacy litigation.
  • In another article, Frankel reports on the Court’s grant of certiorari in Already, LLC v. Nike, Inc., which raises the jurisdiction of the district court to hear counterclaims against Nike when it has already dropped its infringement action against Already.   [Disclosure:  The law firm of Goldstein & Russell, P.C. represents the respondent in the case.]
  • Addie Roinick of PrawfsBlawg discusses the Court’s decision in Salazar v. Ramah Navajo Chapter, in which it 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.

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Jun. 28, 2012, 8:22 AM),