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Tuesday round-up

Today is Veterans Day, and the Court is not in session, but the Court is still in the news. Friday’s announcement that the Court will weigh in on whether tax subsidies are available to individuals who purchase their health insurance on an exchange operated by the federal government continues to dominate coverage and commentary. In his column for The New York Times, Paul Krugman criticizes the challenges, arguing that “the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an . . . obvious typo.”  At ThinkProgress, Ian Millhiser discusses an interpretation of the ACA that would “hand a significant doctrinal victory to conservatives while simultaneously protecting the lives of the many Americans who depend upon Obamacare insurance plans,” and he suggests that the Chief Justice’s “previous Obamacare decision offers some hope that he will choose this third option.”  At Real Clear Politics, Sean Trende lists six things to know about the case and concludes that the threat to the ACA “is real.”  The New Republic has covered the grant extensively:  Jonathan Cohn notes that the case gives conservatives on the Court “an opportunity to do what Republicans in Congress cannot: [e]liminate a big chunk of Obamacare, for a big chunk of the country”; Yishai Schwartz comments on the commentary on the grant, asserting that “[a]lleging corrupt partisanship by conservative judges is not only uncharitable, it also misses the proper target: the cynical campaign that brought this suit to court in the first place”; Jeffrey Rosen discusses parallels between the ACA subsidies case and same-sex marriage, arguing that the two issues “not only interject the Court into the two most explosive legal controversies of our time—they also pose a challenge to Chief Justice John Roberts’s legacy”; and Brian Beutler “plant[s] a flag in an unlikely, but completely plausible outcome, wherein Chief Justice John Roberts sides with the challengers, but the law survives unscathed nonetheless.” And in the Charlotte Observer, Lee Goldman asserts that “[w]hat’s at stake in [the case] is nothing less than preserving the constitutional doctrine of Separation of Powers.”

Still more coverage focuses on the cases scheduled for oral argument this week.  At the National Review Online, Jonathan Keim briefly reviews all of this week’s cases, while at ISCOTUSnow Edward Lee predicts the winners of yesterday’s oral arguments based on the number of questions for each side.  And at the National Review Online’s Bench Memos, Roger Clegg and Meriem Hubbard weigh in on the Alabama redistricting cases, scheduled for oral argument tomorrow; they argue that, although “[t]he political and legal issues involved in redistricting can be complicated, . . . the role for race is simple: It should not be considered.”  Rick Hasen also discusses the Alabama redistricting cases at Slate, emphasizing that, although “[n]o one disputes that the Alabama legislature packed black voters into a few legislative districts, thus strengthening Republican control in the majority of districts throughout the rest of the state,” “whether or not that action is constitutional depends a great deal on whether the court views this as a case about race (in which case Alabama may have acted unconstitutionally) or one about party (in which case Alabama’s actions are constitutional, if unsavory politics as usual).” Writing for the National Law Journal’s Supreme Court Brief (subscription required), Tony Mauro reports on yesterday’s oral argument in M&G Polymers USA v. Tackett, concluding that the Court “appeared unlikely to lay down a categorical rule—sought by business advocates—on when health care benefits can be cut off for retirees under collective bargaining agreements.”

Justice Stephen Breyer spoke recently at the Jewish Federations of North America’s General Assembly, in an appearance that also included Justice Elena Kagan and NPR’s Nina Totenberg.  At The Wall Street Journal Law Blog, Jess Bravin reports on Breyer’s comments on Judaism and justice, while Politico’s Hilary Krieger reports that Breyer “signaled Sunday that the case on same-sex marriage wasn’t totally closed despite the high court’s decision not to take up appeals on the issue earlier this session.”


  • At Hamilton and Griffin on Rights, Malvina Halberstam reviews last week’s oral argument in Zivotofsky v. Kerry, the Jerusalem passport case, and concludes that, “whatever the result, there will be several opinions and, regrettably, no clear guidance about the powers of the President and Congress on matters involving foreign affairs when the two disagree.”
  • At Forbes, George Leef weighs in on Horne v. Department of Agriculture, in which the Court has once again been asked to review a challenge to a government program that requires raisin growers to turn over a portion of their crop to a committee, without any guaranteed compensation.
  • At his eponymous blog, Ed Mannino discusses yesterday’s denial of review (and Justice Antonin Scalia’s statement regarding the denial) in Whitman v. United States, in which the Court had been asked to consider a challenge to an insider trading conviction.
  • At the Civil Procedure and Federal Courts Blog, Adam Steinman excerpts some of the highlights from yesterday’s per curiam decision in Johnson v. City of Shelby, involving (among other things) whether a federal complaint can be dismissed when it fails to cite the statute authorizing the plaintiff’s cause of action.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, filed an amicus brief in support of neither party in M&G Polymers.]

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Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Nov. 11, 2014, 8:43 AM),