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.
It's Not A Duel, It's A Three-way
October 12, 2011
Now that the Night of the Roundtable is behind us, the primary campaign is moving into the phase when money and ads will matter more than Jon Huntsman's curious sense of humor or Michelle Bachmann's numerology.
July 28, 2011
The Supreme Court has included good writers and bad writers during the past two centuries, but the literarily challenged justices have always had a comfortable majority. In the Court’s early days, one of its clumsiest writers was Samuel Chase, who, in addition to being impeached for excessive partisanship, had a weakness for random italics.
Disorder in the Court
June 23, 2011
In April 2000, a Vermont musician named Diana Levine went to the hospital with a migraine. There, a nurse incorrectly injected Phenergan, an anti-nausea drug, into her vein rather than her muscle. This led to gangrene and, eventually, the amputation of much of her right arm. Levine sued and won more than $6 million from a Vermont jury, which concluded that Wyeth, the drug company, had failed to warn her properly about the risks of the drug.
May 11, 2011
Richmond, Virginia, may be the heart of the old confederacy. But it’s also the place where the federal government eventually indicted Jefferson Davis for treason. A plaque commemorating that event sits outside the entrance to the Fourth Circuit Court of Appeals—an omen for what transpired inside the courthouse on Tuesday, where three judges considered a pair of lawsuits from Virginians challenging an abuse of federal authority. The alleged abuse in this case is the individual mandate of the Affordable Care Act (ACA). The other, more significant omen was the selection of the judges.
[Guest post by Chloe Schama:] Last week, the Supreme Court heard oral arguments for a class-action case that NPR called “the largest sex discrimination lawsuit in U.S. history.” The description is actually a bit misleading: From a legal standpoint, the issue in Dukes v. Wal-Mart is standing: whether or not hundreds of thousands of women—upon whose behalf former Wal-Mart employee Betty Dukes had filed the case—could band together and sue for damages. Or, as Richard Thompson Ford put it in Slate, “[W]hat’s at stake in Dukes v.