Thursday round-up

Attention continues to focus onthe decision in the Affordable Care Act litigation, and particularly on the spate of leaks about the Courts deliberations, with regard to which Jan Crawfords initial report for CBS continues to dominate. AtSalon, Paul Campos asserts that Chief Justice Roberts wrote both the majority opinion and most of the joint dissent, and John Fund of theNational Reviewasserts that after initially voting to strike down the law’s individual mandate provisions, Roberts expressed skepticism about throwing out the entire law. AtBalkinization, Mark Tushnet reports on a pre-decision rumor “sourced to a clerk” that the Court had voted to strike down the act, and at theVolokh ConspiracyOrin Kerr reports on an apparent pre-decision leak to Ramesh Ponnuru of the National Review. He has further commentaryhere. The Hill’sHealthwatchblog covers speculation about the identity of the leaker(s), and Ian Millhiser ofThinkprogresssuggests that it may have been Justice Thomas. InThe Washington Post, Charles Lane calls the leaks “slimy,” while Daniel Stone atThe Daily Beastsays that the leaks show that the Court “is making an awkward shift to transparency and modernity,” and Gerard Magliocca ofConcurring Opinionsargues that “this used to happen all the time back in the 1930s, 1940s, and 1950s.” AtBalkinization, Neil Siegel calls for clear confidentiality rules for clerks.

Forthis blog, Lyle Denniston discusses the emerging narrative of “judicial intrigue.” The day before the oral argument, Tom Goldstein had predicted that the individual mandate would be upheld, in an opinion by Chief Justice Roberts. But that post was not based in any respect on a leak of any kind.

Criticism of Chief Justice Roberts’ alleged change of position comes fromRamesh Ponnuru,Fred Thompson,George Weigel, andCarrie Severinoin the National Review. David G. Savage ofThe Los Angeles Timesreports on further criticisms of the Chief, while Paul M. Barrett ofBloomberg Businessweekand Geoffrey Stone in theHuffington Postcome to his defense. Josh Gerstein ofPoliticoreports that liberals are concerned that Roberts’ opinion “has given him a free hand to craft and sign onto a slew of conservative opinions next year without suffering much of a public drubbing from Democrats and the press.” Greg Stohr of Bloomberg News has a similar take, writing that Roberts “won’t have to wait long for a chance to reassert his conservative credentials.” Further commentary comes from Warren Richey at theChristian Science Monitor, Nina Totenberg ofNPR, Jeff Sheshol inSlate, Mark Tushnet atBalkinization, Ilya Somin atVolokh, Lisa McElroy in the Huffington Post, and Paul Garnett ofPrawfsBlawg. AtThe New York Times, Adam Liptak reports that Chief Justice Roberts will be spending the next two weeks in the “impregnable island fortress” (as the Chief Justice quipped) of Malta.

Commentators continue to discuss the substance of the ACA decision. Drew Singer and Terry Baynes ofThomson Reutersreport that a “more nuanced interpretation of the ruling’s impact has begun to emerge in discussions on legal blogs, among lawyers and in the country’s ivory towers.” Julie Rovner ofNPRreviews the decision, while Gerard Magliocca offers his “final thoughts” over atConcurring Opinions. At Reason,Jacob Sullum,Damon Root,andSheldon Richmanoffer their thoughts. AtVerdict, Neil Buchanan argues that the majority was right to hold that the mandate falls under Congress’s taxing power.

The other big news at the Court is that the Justice Department has filed a petition for certiorari in two Defense of Marriage Act Cases, including a rare petition for certiorari before judgment inOffice of Personell Management v. Golinski, a case currently pending before the Ninth Circuit. Lyle Denniston covers the filing forthis blog, and Chris Geidner ofMetro Weekly who uniformly has excellent, detailed coverage of these disputes has more. Scott Graham ofLegalPadhas more on theGolinskipetition. Meanwhile, forthis blog, Lyle Denniston has a long discussion ofBaker v. Nelson, the 1972 ruling of the Court dismissing a challenge to a same-sex marriage ban “for lack of a substantial federal question,” and its impact on next term’s likely same-sex marriage cases, while Erin Geiger Smith discusses the potential impact of the ACA decision on the DOMA cases for Alison Frankel’sOn The Caseblog at Thomson Reuters.

Briefly:

• Stanley Fish has a column onUnited States v. Alvarez, the case striking down the Stolen Valor Act, in the New York Times’Opinionatorblog.
• Mark Sherman of theAssociated Pressreports on criticisms of some of Justice Scalia’s recent remarks as being overly political.
• InBloomberg View, Michael Kinsley argues thatCitizens United v. Federal Election Commissionwas correctly decided.
• Jeremy Leaming ofACSblogreports on a new study finding that the Chamber of Commerce has prevailed in 68 percent of its cases before the Roberts Court.
• PBS Newshouraired a segment on the Court in historical perspective.
• Over atAppellate Daily, Michelle Olsen reports on a pending cert. petition involvingMirandawarnings, and Jim Harper ofCato At Libertyreports on a recent amicus brief inFlorida v. Jardinesa case involving the use of drug-sniffing dogs.
• The Constitution Project will be hosting a panel discussion onBoumediene v. Bushand its legacy on July 17th. Steve Vladeck has the details atLawfare.