That Elizabeth Warren claimed in the 1990s that she is a Native American is, among other things, a sign that Supreme Court Chief Justice John Roberts had a point. When Roberts famously wrote in a 2006 opinion, “It’s a sordid business, this divvying us up by race,” he was castigated by many liberals for not understanding that Race Matters—that race is at the root of considerable societal injustice, and the country must address the issue squarely.
First Health Care, Now Immigration: How the Government Fumbled Its Latest Supreme Court Case
April 26, 2012
At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli.
In the oral arguments over the constitutionality of health care reform, John Roberts and Anthony Kennedy seemed at times to be looking for a reason to uphold the law despite their doubts. Unfortunately, Solicitor General Donald Verrilli didn’t give it to them.
Obamacare Is On Trial. So Is the Supreme Court.
March 29, 2012
Before this week, the well-being of tens of millions of Americans was at stake in the lawsuits challenging the Affordable Care Act. Now something else is at stake, too: The legitimacy of the Supreme Court. Nobody knows how the justices will rule. And nobody can know, not even the justices themselves. On Friday morning, perhaps by the time you read this, they will meet privately to take their first vote. More often than not, this first vote determines the final verdict.
Why the Supreme Court Justices Won’t Be Crudely Political When They Rule on Obamacare
March 29, 2012
In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional.
Let's All Take a Moment to Breathe, OK?
March 27, 2012
Everybody calm down. And when I say everybody, I include myself. Tuesday’s oral argument at the Supreme Court was not the finest hour for health care reform, for the philosophy of activist government, or for Solicitor General Don Verrilli. But oral arguments don’t typically change the outcome of cases. They are important primarily for the signals they send about the justices’ thinking.
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.
February 22, 2012
Newt Gingrich’s attack on judicial independence—in particular, his call for Congress to subpoena judges and force them to explain their rulings under threat of arrest—is widely viewed as one of the reasons his now-moribund presidential campaign jumped the shark. Both conservative and liberal pundits were alarmed by Gingrich’s assault on the concept of judicial review, and rightly so. But, if Gingrich’s judge-bashing was extreme, it was not an isolated phenomenon.
November 24, 2011
Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.