Breaking News

Thursday round-up

Attention continues to focus on the decision in the Affordable Care Act litigation, and particularly on the spate of leaks about the Court’s deliberations, with regard to which Jan Crawford’s initial report for CBS continues to dominate.  At Salon, Paul Campos asserts that Chief Justice Roberts wrote both the majority opinion and most of the joint dissent, and John Fund of the National Review asserts that after initially voting to strike down the law’s individual mandate provisions, Roberts expressed skepticism about throwing out the entire law. At Balkinization, Mark Tushnet reports on a pre-decision rumor “sourced to a clerk” that the Court had voted to strike down the act, and at the Volokh Conspiracy Orin Kerr reports on an apparent pre-decision leak to Ramesh Ponnuru of the National Review. He has further commentary here. The Hill’s Healthwatch blog covers speculation about the identity of the leaker(s), and Ian Millhiser of Thinkprogress suggests that it may have been Justice Thomas. In The Washington Post, Charles Lane calls the leaks “slimy,” while Daniel Stone at The Daily Beast says that the leaks show that the Court “is making an awkward shift to transparency and modernity,” and Gerard Magliocca of Concurring Opinions argues that “this used to happen all the time back in the 1930s, 1940s, and 1950s.”  At Balkinization, Neil Siegel calls for clear confidentiality rules for clerks.

For this 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 from Ramesh Ponnuru, Fred Thompson, George Weigel, and Carrie Severino in the National Review. David G. Savage of The Los Angeles Times reports on further criticisms of the Chief, while Paul M. Barrett of Bloomberg Businessweek and Geoffrey Stone in the Huffington Post come to his defense.  Josh Gerstein of Politico reports 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 the Christian Science Monitor, Nina Totenberg of NPR, Jeff Sheshol in Slate, Mark Tushnet at Balkinization, Ilya Somin at Volokh, Lisa McElroy in the Huffington Post, and Paul Garnett of PrawfsBlawg. At The 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 of Thomson Reuters report 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 of NPR reviews the decision, while Gerard Magliocca offers his “final thoughts” over at Concurring Opinions. At Reason, Jacob SullumDamon Root, and Sheldon Richman offer their thoughts. At Verdict, 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 in Office of Personell Management v. Golinski, a case currently pending before the Ninth Circuit.  Lyle Denniston covers the filing for this blog, and Chris Geidner of Metro Weekly – who uniformly has excellent, detailed coverage of these disputes – has more. Scott Graham of LegalPad has more on the Golinski petition. Meanwhile, for this blog, Lyle Denniston has a long discussion of Baker 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’s On The Case blog at Thomson Reuters.


  • Stanley Fish has a column on United States v. Alvarez, the case striking down the Stolen Valor Act, in the New York Times’ Opinionator blog.
  • Mark Sherman of the Associated Press reports on criticisms of some of Justice Scalia’s recent remarks as being overly political.
  • In Bloomberg View, Michael Kinsley argues that Citizens United v. Federal Election Commission was correctly decided.
  • Jeremy Leaming of ACSblog reports on a new study finding that the Chamber of Commerce has prevailed in 68 percent of its cases before the Roberts Court.
  • PBS Newshour aired a segment on the Court in historical perspective.
  • Over at Appellate Daily, Michelle Olsen reports on a pending cert. petition involving Miranda warnings, and Jim Harper of Cato At Liberty reports on a recent amicus brief in Florida v. Jardines a case involving the use of drug-sniffing dogs.
  • The Constitution Project will be hosting a panel discussion on Boumediene v. Bush and its legacy on July 17th. Steve Vladeck has the details at Lawfare.

Recommended Citation: Cormac Early, Thursday round-up, SCOTUSblog (Jul. 5, 2012, 11:53 AM),