The GOP Better Listen to Bobby Jindal on Birth Control
December 18, 2012
The Louisiana governor has made his position known. Will Republicans come around?
An Affirmative Action Solution Even Conservatives Should Love
October 10, 2012
On Wednesday the Supreme Court heard arguments in Fisher v. Texas, the most important affirmative action case in a decade. The Court is sharply divided on the question of the permissibility of racial preferences in university admissions, and the questions posed by the justices reinforced the possibility that Fisher will produce a 5-3 decision pitting five conservatives who want to severely restrict if not eliminate affirmative action in higher education against three liberals who want to preserve it. (Justice Elena Kagan is recused because she worked on the case as Solicitor General).
States of Confusion
July 13, 2012
The Supreme Court’s decision in the health care case is best understood as an attempt to maximize damage to established legal precedent while minimizing damage to the particular law under consideration. On the one hand, Chief Justice John Roberts wanted to maintain the Supreme Court as a playpen for anti-government sophistry. On the other, Roberts wanted to avoid getting pilloried as a right-wing extremist who doesn’t care whether people get health insurance or not.
The Supreme Court’s decision to strike down most of Arizona’s immigration law is a cause for celebration—not least because it’s a model of how the Court can make decisions based on judicial philosophy rather than partisanship. The bipartisan majority opinion by Justice Anthony Kennedy, joined by Chief Justice John Roberts and the three liberal justices (Elena Kagan was recused) was modest and nuanced in tone and in substance—and consistent with all of the justices’ previous expressions of willingness to allow federal policies to trump state ones in cases where they conflict.
In Defense of the Constitution: The Battle for Obamacare
June 08, 2012
AT THE END OF MARCH, when Solicitor General Donald Verrilli appeared before the Supreme Court to make the case for the Affordable Care Act, he was widely perceived to have choked. When he approached the podium in the packed courtroom, the stakes could not have been higher. Verrilli was defending the Obama administration’s central domestic achievement, a reform that had consumed the White House for the better part of the president’s first term.
Justices Contemplate Medicaid, Call It a Day
March 28, 2012
The hearings are over, finally. The afternoon argument, over the Affordable Care Act's expansion of Medicaid, was as contentious as the rest -- with the justices giving both the government and the states challenging the law extra time to make their arguments. This time, the liberals wasted no time in pressing Paul Clement, attorney for the 26 states, about his assertion that the law's expansion of Medicaid for the states was coercive.
Day 2 at the Court: Well, that Could Have Gone Better
March 27, 2012
My first impression from day two at the Supreme Court: I was more confident yesterday than I am today. With the caveat that I know health policy a lot better than I know law, I can still imagine the justices upholding the individual mandate. But, at this point, I can just as easily imagine them striking it down. Tuesday's hearing was energized and contentious, from start to finish. But while the justices hammered lawyers from both sides with difficult questions, Solicitor General Don Verrilli seemed to struggle more than Paul Clement, attorney for the states.
Will the Court Uphold Health Care Reform? Survey Says...
March 19, 2012
Las Vegas hasn’t posted odds on whether the Supreme Court will reject health care reform. But the American Bar Association has done the next best thing. As part of a special publication devoted to the case, the ABA surveyed a group of veteran observers and asked them to predict the outcome. The results? Eighty-five percent predicted that the court will uphold the law. The ABA won’t say how it picked the experts; it promised anonymity to guarantee candor. So make of the results what you will. But those experts seem to part of a broader consensus.
Obama Should Pack the (Lower) Courts
March 13, 2012
All Hail Samuel Alito, Privacy Champion Extraordinaire!
January 24, 2012
Yesterday the Supreme Court handed down the most important privacy case of the Roberts era, U.S. v. Jones. The unanimous decision is an occasion for dancing in the chat rooms. In holding that the government needs a warrant before attaching a GPS device to a suspect’s car to track his movements 24/7 for a month, all the justices rejected the Obama administration’s extreme and unnecessary position that we have no expectations of privacy when it comes to the virtual surveillance of our movements in public places.