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.
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.
Obamacare at the Court: Contortions All Around
March 28, 2012
More than any Supreme Court case in memory, the health care lawsuit has produced a tangle of constitutional positioning, with both the Obama administration and its challengers at various points contradicting themselves and making arguments they can’t possibly believe. There is plenty of blame for this situation to go around: You can blame the lawyers and politicians on both sides; you can even, in some respects, blame the Supreme Court justices themselves.
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.
Day 1 at the Court: No Ducking the Issue
March 26, 2012
Oral arguments for the Supreme Court on Monday were supposed to be boring. The subject wasn’t the individual mandate, after all. It was the Anti-Injunction Act, a relatively obscure law that prevents courts from hearing legal challenges to taxes until after somebody has paid them. But while the session was not always exciting, the justices did drop two hints about their thinking. All the justices seem eager to decide this case, rather than punting on jurisdictional grounds.
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.
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.
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.
The Butterfly Effect
July 28, 2011
It is often said that the age of the Washington hostess is dead. Gone are the days, we are told, of Katharine Graham and Pamela Harriman, who assembled Washington power players around tables where deals were struck and alliances forged. But that may not be entirely true. The name Rima Al-Sabah doesn’t ring many bells to people outside the Beltway. Inside, it rings a lot. Al-Sabah is the wife of the Kuwaiti ambassador, Salem Al-Sabah. Since the couple arrived in Washington in 2001, she has become known as the issuer of invitations one doesn’t decline.
Why I Miss Sandra Day O’Connor
July 01, 2011
The Supreme Court term that ended this week would have looked very different if Justice Sandra Day O’Connor were still on the bench. Twenty percent of the cases were decided by a 5-4 vote, and, in many of those cases, Justice O’Connor would have voted to swing the result the other way. In two interviews this week at the Aspen Ideas Festival, O’Connor, a former Arizona state legislator, suggested to me that she disagreed with the 5-4 decision striking down Arizona’s public campaign financing system. She worried that it might call other public financing schemes into question.