Yesterday the Supreme Court denied Alabama’s request to stay a federal judge’s ruling striking down the state’s ban on same-sex marriage.  Lyle Denniston and I both covered the Court’s order – and Justice Clarence Thomas’s dissent, joined by Justice Antonin Scalia, from the denial of the stay – for this blog; other coverage comes from Nina Totenberg of NPR, David Savage and Timothy Phelps of the Los Angeles Times, Lawrence Hurley of Reuters, and Sherrel Wheeler Stewart, also of Reuters (via Yahoo! News), who reported on the events following the Court’s order.  Commentary comes from Noah Feldman, who in his column for Bloomberg View contends that, although the Court “would probably have denied the stay anyway,” “by directly confronting the Supreme Court’s authority,” Alabama’s chief justice “may have guaranteed that Justice Anthony Kennedy would vote against any stay, because it would look like judicial weakness.”  At PrawfsBlawg, Richard Re continues his discussion of signaling at the Court, noting that “the idea of a ‘signal’ . . . became quite salient, as Justice Thomas expressly referred to signals in criticizing the Court’s latest same-sex marriage order.” 

Although the focus was on same-sex marriage and Alabama, coverage of and commentary on King v. Burwell, the challenge to the availability of tax subsidies for individuals who purchase health insurance on an exchange created by the federal government, continue.  At The Incidental Economist, Nicholas Bagley contends that several of the Court’s decisions “require Congress to speak with much greater clarity before the courts will impute to it the desire to behave so disrespectfully toward the states. There is nothing like that kind of clarity in the ACA.”  At The Economist’s Democracy in America blog, Steven Mazie focuses on the four words at the heart of the challenge – “established by the State” – and argues that the case should be summarized as one in which “the Supreme Court will decide whether to let millions of Americans pay the price for their legislators’ shoddy draftsmanship.”  In Mother Jones, Stephanie Mencimer has an introduction to the four plaintiffs in the case, while in another post for Mother Jones she focuses on a brief filed by the Hospital Corporation of America, which denounces the challengers’ legal arguments as “absurd” and, “more importantly, . . . presents detailed data drawn from its own operations that demonstrate that the health care law is helping patients and the company itself.”  In the New Republic, Brian Beutler suggests that “the question will be whether a ruling for King plaintiffs puts Republicans on their heels briefly, or whether it dominates campaign politics through November 2016.”  And at The Legal Intelligencer, Charles Kelbley contends that, “[w]hen we look at the ACA ‘as a whole,’ and read its parts in the context of the entire document, we can see why the challengers’ position is untenable.”


  • Writing for the State and Local Legal Center, Lisa Soronen previews cases in the second half of the Term that are of interest to states and local governments.

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Posted in Round-up

Recommended Citation: Amy Howe, Tuesday round-up, SCOTUSblog (Feb. 10, 2015, 8:01 AM),