Author: Kiran Bhat

With the Court in recess until next week, coverage remains focused on the Justices’ consideration of the Affordable Care Act. At Balkinization, Rick Pildes responds to Paul Carrington’s Monday op-ed in the New York Times (featured in yesterday’s round-up), which urged Congress to consider a court-packing plan if the Court strikes down the health care law.  And at the Volokh Conspiracy, Randy Barnett rebuts the premise of an Associated Press story (also featured in yesterday’s round-up)  which suggested that the Justices may have misunderstood the availability of “stripped-down insurance” that would satisfy the individual mandate.  Debra Cassens Weiss of the ABA Journal reports on the use of Lochner as an epithet during the public debate over the constitutionality of health care. And a recent poll shows that half of Americans expect the Justices to rule in the health care cases based primarily on their partisan political views; Robert Barnes and Scott Clement of the Washington Post report on the poll, while Jonathan Adler of the Volokh Conspiracy explains why “it’s hard to see how the finding headlined by the Post is all that significant.”

With the Court still in recess, the fall-out from last week’s arguments on the constitutionality of the Affordable Care Act continues to dominate the headlines. As Nabiha and Conor noted in the Tuesday and Wednesday round-ups, coverage has shifted towards the President’s comments expressing confidence that the Court would uphold the Affordable Care Act and his subsequent efforts to clarify his position. The editorial board of the Los Angeles Times lists “several things wrong” with the President’s initial remarks, while Jared A. Favole of the Wall Street Journal’s Washington Wire blog reports on the reaction of law professor Laurence Tribe, who taught the President at Harvard; Tribe indicated that the President “obviously misspoke” on the matter. James Vicini of Thomson Reuters News & Insight places President Obama’s remarks about the Court in historical context, as do Randy Barnett and Mike Seidman on the PBS NewsHour (video). At the Atlantic, Andrew Cohen posits that “the real question here is not whether President Obama, the constitutional scholar, has gone too far in rendering his opinion about the Constitution and the Care Act but instead whether he has not gone far enough.” Peter Wallsten and Robert Barnes of the Washington Post, Brooks Jackson of FactCheck.org (via USA Today), and Mike Sacks of the Huffington Post also have coverage of the President’s remarks, while Sandy Levinson has commentary at Balkinization.

Yesterday, the Court heard the final set of oral arguments in the challenges to the Affordable Care Act (ACA).  In the morning, it considered the severability question – what part, if any, of the Affordable Care Act (ACA) survives if the individual mandate falls – while in the afternoon it heard arguments on the constitutionality of the ACA’s Medicaid expansion. Kali compiled coverage of the arguments yesterday afternoon. In his report on the morning’s severability arguments, Lyle Denniston concludes that the Court “may have convinced itself in the end not to [strike the mandate] because of just how hard it would be to decide what to do after that.” And on Medicaid expansion, Lyle observes that the ACA’s “broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.” Amy also provides a Plain English report on the severability issue for this blog, and Tom compiles all SCOTUSblog posts on the health care arguments. Tejinder Singh of this blog has audio highlights of the severability arguments here, and of the Medicaid expansion arguments here. Additional coverage on the severability question comes from Bloomberg; the New York Times; NPR; the WSJ Law Blog; the Washington Post’s Wonkblog; Forbes; Slate; USA Today; USA Today’s The Oval blog; the ABA Journal; Courthouse News; Sentencing Law and Policy; CNN; ABC News (video); and UPI. Also covering the Medicaid expansion arguments are Bloomberg; the Wall Street Journal; the Washington Post; Reuters; the Los Angeles Times; NPR’s Shots blog; the editorial board of the Chicago Tribune; the editorial board of the Christian Science Monitor; the Blog of Legal Times; Forbes; and USA Today’s The Oval blog.

The Court heard oral arguments in two cases yesterday. In Reichle v. Howards, a case arising from the Secret Service’s arrest of a man who touched former Vice President Dick Cheney and made an anti-war comment in a Colorado shopping mall, the Court considered whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the Tenth Circuit erred by denying qualified immunity to the arresting agents. In his report on the oral argument for this blog, Lyle Denniston indicates that the Justices seemed sympathetic to the agents – a view shared in coverage by Adam Liptak of the New York Times, Mike Sacks of the Huffington Post, and Mark Sherman of the Associated Press. Bob Drummond of Bloomberg, Warren Richey of the Christian Science Monitor, and Ruthann Robson of Constitutional Law Prof Blog also have coverage of the case, which Nina Totenberg previewed yesterday for NPR .

The fast-approaching health care arguments continue to dominate Court coverage.  Several stories focus on the public’s views of the Court’s eventual ruling on the constitutionality of the Affordable Care Act.  At Bloomberg, Julie Bykowicz and Greg Stohr report on the results of a recent Bloomberg poll indicating that three of four Americans feel that the Court’s decision will be influenced by politics, while Sarah Kliff of the Washington Post’s Wonkblog and Richard Wolf of USA Today’s The Oval blog report on a Kaiser Family Foundation poll showing that a slim majority of Americans expect the Court to find the law unconstitutional.

Yesterday’s big news was the Court’s decision to expand the scope of, and order reargument in, Kiobel v. Royal Dutch Petroleum, in which the Court heard oral argument last week.  As Lyle reports for this blog, the Court asked the parties to brief the question of whether, and under what circumstances, the Alien Tort Statute allows foreigners to sue in U.S. courts for acts that occurred overseas.  Greg Stohr of Bloomberg also has coverage, as do Nina Totenberg at NPR’s The Two-Way blog, Mike Sacks of the Huffington Post, Robert Barnes of the Washington Post, Adam Liptak of the New York Times, Mark Sherman of the Associated Press, James Vicini of Reuters, Marcia Coyle of the National Law Journal (via the Blog of Legal Times), Nicole Flatow of ACSblog, Jess Bravin of the Wall Street Journal (subscription required), and Jaclyn Belczyk of JURIST. And in a post published at the Huffington Post before the reargument order was issued, Katie Redford responded to post-argument news reports suggesting that the Court was likely to rule in favor of corporations.

Yesterday the Court heard arguments in Armour v. Indianapolis, in which the Justices will consider whether the Constitution allows a city to refuse to refund taxes that some taxpayers paid up front, even though it forgave the remaining taxes of other taxpayers who paid on an installment plan. For this blog, Lyle Denniston reports that although some Justices seemed concerned that a ruling for the petitioners would call into question the continuing validity of other government amnesty programs, the petitioners’ “core argument appeared to sit quite well” with the majority of Justices. Maureen Groppe of Gannett (via USA Today) reports that the Justices “appeared split” during arguments. A transcript is available here.

The Court heard arguments in two cases yesterday morning, with United States v. Alvarez garnering most of the media’s attention. The case involves a First Amendment challenge to the Stolen Valor Act, which criminalizes lies about having received military decorations. Writing for this blog, Lyle Denniston reports that the government urged the Court to interpret the law narrowly; other coverage comes from Nina Totenberg of NPR, Adam Liptak of the New York Times (who also discussed the oral argument for the paper’s At War blog), David G. Savage of the Los Angeles Times, James Vicini of Reuters, Michael Doyle of McClatchy Newspapers,  Mark Sherman of the Associated Press, Mike Sacks of the Huffington Post, and Warren Richey of the Christian Science Monitor.

Coverage of the Court yesterday focused on the latest developments in a case challenging Montana’s ban on corporate spending in state elections. The Montana Supreme Court upheld the ban in December, but three Montana corporations have asked the Supreme Court to stay the enforcement of that decision and, eventually, reverse it, on the ground that the lower court’s ruling conflicts with the Court’s 2010 decision in Citizens United v. Federal Election Commission. Writing for this blog, Lyle Denniston reports on the brief filed by the state’s attorney general opposing the stay, while Mike Sacks of the Huffington Post predicts that the Justices may summarily overturn the Montana court’s decision or “at the very least” allow for full briefing and a hearing. Charles S. Johnson also has coverage in the Billings Gazette.

Much of yesterday’s coverage of the Court focused on whether the Court would review the Ninth Circuit’s decision in Perry v. Brown, striking down California’s ban on same-sex marriage as unconstitutional, and in particular on what role Justice Kennedy might play if the Court does take up the issue. In his column for Bloomberg View, Noah Feldman characterizes the Ninth Circuit’s opinion as a “memo to Justice Kennedy,” while Karen Gullo and Andrew Harris of Bloomberg similarly observe that Kennedy is likely to be the “fulcrum” of the Court if it decides to review the case.  Other coverage of, and commentary on, Justice Kennedy’s possible role in a Supreme Court decision comes from David G. Savage of the Los Angeles Times , Carlos Ball in the Huffington Post, Daniel B. Wood of the Christian Science Monitor, and Geoffrey Fowler and Jess Bravin at the Wall Street Journal, while Orin Kerr pushes back against the Kennedy narrative at the Volokh Conspiracy. In an op-ed for the Los Angeles Times, Erwin Chemerinsky argues that if it does grant cert., the Court is likely to affirm the Ninth Circuit’s decision. Finally, Maura Dolan of the Los Angeles Times and Howard Mintz of the San Jose Mercury News report on possible next steps for supporters of Proposition 8.