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Wednesday round-up

The Court’s decision in the health care cases continues to garner commentary from Court watchers.  At the Volokh Conspiracy, Orin Kerr discusses whether the decision has inspired “a genuine realignment of what it means to be a judicial conservative and a judicial liberal,” and speculates that “[o]ver the long term, the answer likely depends on the personnel of the Court.”  At the Public Discourse, Joel Alicea writes that “[t]oday’s legal conservatives view the [C]hief [J]ustice’s opinion as judicial abdication, but it was not too long ago that the philosophy reflected in Roberts’ opinion would have been conservative orthodoxy.” And at Jost on Justice, Ken Jost suggests, based on his read of the oral argument transcripts, “Justices Stephen G. Breyer and Elena Kagan also had a change of mind, or heart” on the Medicaid expansion issue “sometime after the arguments over President Obama’s health care reform.”  Meanwhile, last weekend’s post by Tom Goldstein on the press coverage of the Court’s announcement of the health care decision has prompted reactions from several Court watchers, including Amy Sullivan at the New Republic, Amy Davidson at the New Yorker, and Eric Wemple at The Washington Post.


  • At Concurring Opinions, Erica Goldberg discusses one of next Term’s cases, Florida v. Jardines, in which the Court will consider whether a police officer can use a drug-sniffing dog at someone’s door to determine if there is contraband inside the home.  She suggests that the Court’s decision could “resolve a major mess” that results from “tension between the []Court’s holdings, the reality of using drug sniffing dogs, and our intuitions about privacy.”
  • Writing for the online journal Defining Ideas, Richard Epstein critiques the Court’s decision in United States v. Alvarez, arguing that the Court “went astray” because “it failed to read the First Amendment in light of its libertarian roots.”
  • At Politico, Richard L. Hasen discusses the Court’s denial of a petition for certiorari filed by Minnesota, which sought review of a lower court’s ruling that a state law banning false campaign speech about ballot measures is likely unconstitutional.  Hasen suggests that the Court’s denial of cert. could lead to “even nastier campaigns and more political dirty tricks.”
  • In an op-ed for The Wall Street Journal, Clint Bolick argues that “the replacement of a single conservative justice by President Obama in a second term would turn the court sharply to the left.”
  • This blog’s online symposium on next Term’s Kiobel v. Royal Dutch Petroleum continues, with posts from Eugene Kontorovich and Beth Stephens.
  • At this blog, Lyle Denniston discusses a “significant new question” presented in a petition filed by Arizona recently:  “if a state bans gay marriage, can it then take away unwed same-sex couples’ access to state benefits that go only to those who can marry?”
  • In a post at the Daily Beast, former Manhattan District Attorney Robert Morganthau argues that the “real lesson” to be learned from the Court’s recent decision in Arizona v. United States “is that we need a clear-headed understanding of the actual facts of immigration enforcement in the United States, and a sensible and comprehensive federal immigration reform.”
  • And in an op-ed for Politico, Professors Douglas W. Kmiec and Barry McDonald discuss an alternate way the Court could assign opinion writing: “delay[ing] the vote until after the research supporting an informed decision is completed.”

Recommended Citation: Conor McEvily, Wednesday round-up, SCOTUSblog (Jul. 11, 2012, 10:31 AM),