We’re still two days away from the Supreme Court’s decision on the Affordable Care Act, but luckily there’s still a lot to chew on from yesterday’s important ruling in Arizona v. United States. I’ve covered the main points, but there are a few issues that merit further discussion—in particular, Justice Scalia’s unhinged dissent, which took a strange digression into immigration policy issues that were not before the Court.
As recently as a week ago, everybody watching the Supreme Court seemed convinced of one thing: The justices had made up their minds about the Affordable Care Act. They hadn’t issued a decision and, perhaps, they were fine-tuning the legal arguments they would make in their written opinions. But they knew how they were ruling. They just weren't telling anybody about it. Now a new rumor is making the rounds: Five justices have decided to invalidate the individual mandate but they have not settled on what else, if anything, to invalidate along with it. Does the story have any basis in fact?
There are two ways to explain the early onset of liberal panic over last week’s health care hearings at the Supreme Court. In the first, Solicitor General Don Verrilli turned in an unexpectedly weak performance during last Tuesday's oral arguments, flubbing tough questions from the court’s skeptical swing votes.
Would a decision invalidating the Affordable Care Act, in part or in whole, damage the Court's legitimacy? As I wrote on Friday, I'm among those who thinks the answer is "yes," although I was thinking primarily in the moral, substantive sense of the word. In other words, such a poorly reasoned, narrowly won decision should erode the Court's authority. You have to go back almost a century, to the cases of the Lochner era, to find examples of the Supreme Court doing something as audacious as it seems to be contemplating now.
As Tuesday’s oral argument on the Affordable Care Act’s individual mandate came to a close, several commentators faulted Solicitor General Donald Verrilli’s performance. Particularly harsh was CNN’s Jeffrey Toobin, who called the two hour argument “a train wreck for the Obama Administration.” But having sat through the oral argument and re-read the transcript, I have to dissent. Especially on paper, Verrilli’s performance appears quite strong—and possibly more effective than that of his opponents, Michael Carvin and the justly renowned Paul Clement. Here’s why.
Next week the Supreme Court hears oral arguments in the lawsuits challenging the Affordable Care Act. But is it really the “case of the century,” as pundits have started calling it? It’s difficult to say without knowing the outcome. Presently that distinction belongs to Bush v. Gore, a decision that may have truly altered history. Just think how the years after 2001 would have unfolded if Al Gore had been president. But Bush v. Gore didn’t change constitutional doctrine.
[with contributions from Matt O'Brien and Darius Tahir] Five and a half hours -- that's the time Supreme Court justices have set aside for oral arguments in the lawsuits against the Affordable Care Act. And you'll forgive me if I find that a little unsettling. As readers of this space know, I've long believed that the law's individual mandate is constitutional. Yes, the Supreme Court could reach a different conclusion. The justices can say pretty much whatever they want.
Multiple media outlets are reporting that President Obama today will name William Daley as his new chief of staff, which means I've missed my chance to weigh in on him. Both Jon Chait and Ezra Klein have expressed misgivings about Daley and I share them.
Legal circles have been abuzz for the last eight months with the news that Justice John Paul Stevens had hired only one law clerk to begin working this summer. This move, Supreme Court watchers observed, strongly suggested that Stevens’s thirty-fifth term at the Court would be his last. As journalists and scholars begin contemplating his place in history, Stevens himself has not-so-subtly attempted to burnish his judicial legacy. In a series of interviews over the last few years, Stevens has repeatedly attempted to portray his views as fundamentally unaltered since he joined the Court.
Last month, the Senate voted to confirm Judge David Hamilton to the United States Court of Appeals for the Seventh Circuit. Getting a judge confirmed is always a good thing for a president. But it's hard to view what happened to Hamilton as a victory for Obama. In fact, if anything, the episode suggests that the president's approach to nominating federal appellate judges is seriously misguided. Back in September, The New Yorker's Jeffrey Toobin reported that the administration nominated Hamilton in order to show that it was taking a new, post-partisan approach to judicial appointments.