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Monday round-up

Commentary on last week’s decision in Zivotofsky v. Kerry, holding that the president has exclusive power to grant formal recognition to a foreign sovereign, continues.  At Just Security, Marty Lederman adds to his analysis of the decision with parts five, six, and seven of his series; Marty also discusses the case in a podcast with Jack Goldsmith at Lawfare.  And Kenneth Jost weighs in at Jost on Justice, arguing that “the court reached the right result in a diplomatically delicate case despite the sharp disagreement between the two originalist justices, Antonin Scalia and Clarence Thomas, about the original meaning of the Constitution on the issue.”

The Economist’s Democracy in America Blog features a trio of posts on 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, and in particular on the president’s recent comments on the case.  Will Wilkinson argues that “there is something rhetorically odd about Mr Obama’s implicit claim that Obamacare ought to get special consideration or deference from the courts simply due to the alleged fact that it is so thoroughly entrenched. For the question before the court is precisely whether or not the government has been weaving ‘the fabric of how we care for one another’ with illegal tax subsidies and penalties.”  Matt Steinglass counters that “the fact that no one in the Obama administration, none of the ACA’s authors in Congress, none of the bill’s advocates in civil society, none of the insurance companies hoping to profit from government subsidies—the fact that none of them ever tried to tell a single governor or legislator in any state in America that they might lose their subsidies if they did not set up an exchange on their own makes the alleged strategy here extremely puzzling.”  Steven Mazie weighs in as well, contending that, “however the justices are about to rule, court commentary from the president’s bully pulpit is, at best, fruitless. At worst, it does symbolic harm to the principle of the separation of powers. The parties have had their say and the matter is in the justices’ hands.”  Other commentary on King comes from Mila Sohoni, who in a post at PrawfsBlawg discusses the case in the context of avoiding novel constitutional questions.

At Slate, Judith Schaeffer marks the forty-eighth anniversary of the Court’s decision in Loving v. Virginia, striking down that state’s ban on interracial marriages, and argues that the case is important, among other things, because “it debunks a key argument the states defending their discriminatory marriage laws have made to the court in” the challenges to state bans on same-sex marriage –namely, that marriage equality for same-sex couples should be decided by state voters or state legislatures.”  On Saturday, the Robert H. Jackson Center in Jamestown, New York, hosted a conversation with one of the plaintiff-couples in the challenge to Kentucky’s ban on same-sex marriage; video is available via USTREAM.  And in The Washington Post, Robert Barnes reports on Justice Ruth Bader Ginsburg’s recent remarks at the annual convention of the American Constitution Society, noting that Ginsburg attributed advances in gay rights to “the climate of the era.”


  • At Vox, Sarah Kliff discusses Supreme Court predictions by experts and statistical models, observing that although “experts did better at predicting individual justices’ votes,” “the computer still beat them on predicting the actual decision.” Oliver Roeder counters in a post at FiveThirtyEight, arguing that, although “it’s neat to imagine a world where ‘robots’ could accurately tell us the fate of same-sex marriage before the court does, the algorithms just aren’t very good. At least not yet. Humans are still far better.”
  • In a podcast for Slate, Dahlia Lithwick discusses how “the famously silent Supreme Court justice Clarence Thomas has been especially vociferous on paper” recently, along with next Term’s “challenge to the bedrock principle of ‘one person, one vote.’”
  • In his column for the Miami Herald, Leonard Pitts writes an “open letter” to Justice Antonin Scalia in which he notes that an inmate whose case Scalia cited as justification for the death penalty had been exonerated and a few days ago received a pardon from North Carolina’s governor.
  • At the Constitutional Accountability Center’s Text and History Blog, David Gans notes that, since the advent of the Roberts Court, “almost every Term has featured a major election law case coming by direct appeal” and “more are on their way,” which is “why it is significant that the Supreme Court . . . agreed to hear Shapiro v. Mack, a case concerning the circumstances in which a single federal district court judge may refuse to convene a three-judge court.”
  • At PrawfsBlawg, Richard Re discusses last week’s denial of review in the gun rights case Jackson v. City and County of San Francisco, arguing that the case may provide “an important example of what I’ve called ‘narrowing from below’—that is, of lower courts narrowing higher-court precedent.”
  • In the wake of last week’s grant in the class action case Tyson Foods v. Bouaphakeo, the editorial board of The Wall Street Journal (subscription required) urges the Court to “clean up a messy corner of the law.”

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Recommended Citation: Amy Howe, Monday round-up, SCOTUSblog (Jun. 15, 2015, 6:42 AM),