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Tuesday round-up

Yesterday’s oral argument in Elonis v. United States, in which the Court is considering whether a Pennsylvania man can be held criminally liable for threatening statements he made on Facebook, dominated Court-related coverage and commentary.  Lyle Denniston had this blog’s primary coverage of the oral argument, while I provided a report in Plain English.  Other coverage comes from Nina Totenberg of NPR, Mark Walsh at Education Week’s The School Law Blog, Adam Liptak of The New York Times, Richard Wolf of USA Today, and Voice of America News.  Commentary comes from Noah Feldman at Bloomberg View, who argues that “Anthony Elonis doesn’t deserve sympathy or admiration — but he does deserve for the government to prove that he meant to threaten others before he goes to jail.”  At In Progress, Colin Starger provides a “doctrinal map” for the case, while at Hamilton and Griffin on Rights Nancy Leong concludes that “several of the justices appeared skeptical of Elonis’ proposed subjective intent test, suggesting that the Court may break its lengthy string of pro-speech rulings.”  Finally, today Brandeis University will host a conference featuring some of the lawyers who filed amicus briefs in the case.

The Court also heard oral arguments in Perez v. Mortgage Bankers Association, in which the Court is considering whether an agency must engage in notice-and-comment rulemaking before significantly changing an interpretative rule.  Writing for this blog, Mark Walsh focuses on the role played in Perez by Justice Ruth Bader Ginsburg, who returned to the bench after undergoing a heart procedure last week.  And at ISCOTUSnow, Edward Lee predicts the winners in both of yesterday’s oral arguments based on the number of questions for each side.

Still other coverage and commentary focus on King v. Burwell, in which the Court will consider whether tax subsidies are available to individuals who purchase their health insurance on an exchange operated by the federal government.  In the Los Angeles Times, David Savage discusses the possibility that, with his use of executive action on immigration, President Barack Obama “may well lose the one conservative he still really needs: Chief Justice John G. Roberts Jr.”  Nicholas Bagley weighs in with a post at The Incidental Economist, observing that to prevail the challengers in the case must “believe that the judges and commentators who read the statute differently than they do . . . are all behaving unreasonably. That’s an extraordinary claim.”  Greg Stohr of Bloomberg suggests that the case will challenge Chief Justice John Roberts’s “description of his job as that of an umpire calling balls and strikes.”  And in the National Journal, Sam Baker contends that, although “there’s a very real chance that the Court could tear the Affordable Care Act apart,” “some liberals are making the mistake of treating that existential threat like it’s a joke.”

In the wake of Justice Ruth Bader Ginsburg’s recent heart procedure, two commentators focus on the significance of the 2016 presidential election for the Court and vice-versa.  In The Washington Post, Paul Waldman contends that, “[w]hether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two.”  Jason Steed echoes that thought in a column for The Federal Lawyer, arguing that “whether a Democrat or a Republican is elected, 2016 has the potential to have a much bigger impact on the makeup and trajectory of the Court than 1968—or than any other election in modern history.”


  • At Greenwire, Jeremy P. Jacobs covers last week’s grant in a trio of cases – brought by Michigan, the National Mining Association, and the Utility Air Regulatory Group – presenting the question “whether EPA should have taken into account compliance costs before proceeding with . . regulations” intended to limit power plants’ emissions of (among other things) mercury.
  • At Salon, Rob Smith and Charles Ogletree urge the Court to block the execution of Scott Panetti, a schizophrenic death row inmate whose execution is scheduled for Wednesday; they argue that if it does not, “it deserves the substantial hit to its moral legitimacy that it surely will take.”
  • At Think Progress, Ian Milhiser discusses a new study that, he says, “casts serious doubts on the reasoning of the justices who have thus-far refused to strike down unconstitutional gerrymanders.”
  • In an op-ed for the Los Angeles Times, Caitlin Borgmann urges the Supreme Court to take up a case involving laws regulating abortion clinics and “send a strong message to state legislatures that disingenuous laws designed to shut down clinics are unconstitutional.”
  • The Associated Press (via The Washington Post) reports on the Court’s denial of review in a case involving “a Michigan woman who died following a kidney transplant after turning down a blood transfusion because of her religious beliefs.”

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Dec. 2, 2014, 6:14 AM),