Stephen Breyer

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.

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As it turns out, the scariest part of Thursday’s ruling on the Affordable Care Act was the issue that got the least attention. Yes, the Supreme Court upheld the individual mandate and its associated reforms of private insurance. But it also ruled that the law’s expansion of Medicaid was unconstitutional. Does that mean the Medicaid expansion might not go forward? Does it mean that a significant number of low-income Americans will remain uninsured because they can't get into the program? In the long run, probably not.

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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?

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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.

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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.

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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.

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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.

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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.

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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.

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The Butterfly Effect

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.

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