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Friday round-up

There is still more commentary on Monday’s decision in Zivotofsky v. Kerry, holding that the president has exclusive power to grant formal recognition to a foreign sovereign.  Marty Lederman has a series of four posts on the case at Just Security, where he discusses “the Chief Justice’s dissenting opinion, and the question of whether, and to what extent, Zivotofsky is a departure from the Court’s historical jurisprudence”; whether and how Menachem Zivotofsky had standing to bring his lawsuit; the “three important propositions” on which eight of the nine Justices actually agreed; and Justice Thomas’s separate opinion in the case. At The Faculty Lounge, Calvin Massey contends that the Court’s decision “provides an illustration of how the Supreme Court can make poor decisions.” Edward Swaine analyzes the decision for the George Washington University Law School’s On the Docket blog and concludes that, “[i]f the Court cares about the broader issue, it might have been better for it to decide—if it chose to enter into the controversy at all—whether Congress truly enjoys the capacity to ‘infringe on the recognition power’ in a way that matters for these myriad variants.” And at Boyle’s Laws, David Boyle focuses on the Chief Justice’s dissent in the case.

Commentary on the Court’s upcoming decision in King v. Burwell, the challenge to the availability of subsidies under the Affordable Care Act for individuals who purchase health insurance on an exchange created by the federal government, continues. In a series of posts at Cato at Liberty, Michael Cannon argues that the president is “correct” that the case “is not about the Affordable Care Act. It is about the president doing an end-run around the law and the voters”; he also contends that the president’s recent comments on the case are “part effort to influence the” decision, and “part effort to spin a potential loss” in the case. And Ilya Shapiro looks ahead at what the Obama administration “will do if the government does indeed lose” the case. Finally, at his Election Law Blog Rick Hasen weighs on the president’s comments themselves, and in particular whether they are appropriate when the case is pending before the Court; he concludes that the president should speak up on pending decisions more often.

At IMLA’s Appellate Practice Blog, Lisa Soronen discusses Monday’s cert. grant in the class action case Tyson Foods v. Bouaphakeo. She observes that the case “presents a classic legal dilemma:  two lines of cases, one older and one newer, neither exactly on point.  Which will the Court pick or will it craft a new test?” And the editorial board of the Washington Examiner weighs in on both the grant and another class-action case that the Justices considered at their Conference yesterday; the board contends that each case “represents an opportunity for the Supreme Court to show that it is really serious about preserving the integrity of the class action system.”


  • In her column for The New York Times, Linda Greenhouse looks at the Court’s “stretch run” and notes that “a great deal is happening below the surface and behind closed doors.”
  • Lawrence Hurley of Reuters reports that, “[e] ven as North Carolina on Thursday enacted a law allowing officials to refuse involvement in same-sex marriages on religious grounds, similar efforts by conservatives in other states have fizzled ahead of a U.S. Supreme Court decision due this month on whether to legalize gay marriage nationwide.”
  • At the Knowledge Center of the Council of State Governments, Lisa Soronen discusses the Court’s recent grant in another redistricting case, Shapiro v. Mack, and concludes that “a decision in favor of Shapiro would make it easier for those challenging redistricting plans to get cases in front of a three-judge panel and then in turn in front of the Supreme Court.”
  • At PrawfsBlawg, Howard Wasserman discusses the Chief Justice’s frequent practice of assigning First Amendment opinions to himself.
  • Also at PrawfsBlawg, Seth Davis argues that two of the Court’s recent – and seemingly unrelated – decisions reflect “the changing face of federal supremacy.  Where the Clause once supported rights to remedies against state officials, now it supports state rights against remedies.”
  • At CityLab, Kriston Capps links the Court’s upcoming decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, in which the Court is considering whether the Fair Housing Act provides a cause of action based on a law or policy’s disparate impact, and recent events in McKinney, Texas – where a police officer was placed on leave after a video showed him subduing a teenager girl at a pool party.

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Recommended Citation: Amy Howe, Friday round-up, SCOTUSblog (Jun. 12, 2015, 9:51 AM),