As you may have heard, the Supreme Court will hand down its highly anticipated decisions in the Health Care Cases tomorrow. Once it does, expect to see a wide range of reactions from political leaders jockeying for position as November draws near. One candidate, Indiana's Richard Mourdock, was apparently so eager to get his message out about the Court's forthcoming Obamacare decision that he pre-taped various responses in which he tailors his message to each of the potential outcomes. Unfortunately for the Mourdock campaign, someone posted the unedited footage of his premature postulation to YouTube. And thanks to modern technology, here it is for your viewing pleasure:
If your browser does not support Flash, you can watch the HTML-friendly version on YouTube here.
Last Friday I posted a sneak preview of a white paper I recently prepared entitled "Supreme Court Yearbook: Class of October Term 2011." In case you missed it, you can find Friday's post here.
As promised, you can now download the white paper in its entirety on SSRN here. Here is a brief summary of the paper:
Each term the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.
Who are these individuals? This year's "Supreme Court Yearbook" provides a look at each member of the Supreme Court Bar who served as the counsel of record in a case during the October Term 2011, ranking them in order based on the number of cases they handled.
This year's Supreme Court Yearbook similarly ranks the law firms involved in the 2011 term based on the number of cases for which they supplied the counsel of record.
Last month the Supreme Court capped off a blockbuster term with oral arguments in Arizona v. United States—one of the handful of cases that may dramatically reshape our relationship with the federal government.
Although the term’s landmark cases have spurred endless commentary, speculation, and political maneuvering—not to mention some interesting remarks by the President—there has been relatively little written about the advocates who played an active role in shaping the highly anticipated opinions that the Court will hand down in the weeks to come.*
Each term, including its most recent, the Supreme Court decides a mere seventy-five or so cases out of the more than 8,000 petitions for certiorari seeking review. It’s no surprise then, that, for many attorneys, arguing a case before the highest court in the nation is the crowning achievement of their career. For a select few, however, it is simply business as usual.
Who are these individuals? I’ve compiled a "yearbook" of the advocates who make up the Supreme Court’s “Class of October Term 2011.” The following list ranks the "busiest" members of the Supreme Court Bar, so to speak, in descending order based on the number of cases in which they served as counsel of record. I have also noted each advocate's "firm" (loosely defined to encompass not only private law firms, but also public offices, nonprofits, etc.) and a list of their cases.
Be sure to check back on Monday for the entire list of advocates who made the Class of October Term 2011. In the meantime, here is a list of the advocates who were named as the counsel of record in more than one case during this landmark term:
For today's post, I thought I would mix it up a little. The word cloud below reflects the 150 most commonly used words during last month's oral arguments before the Supreme Court in the Affordable Care Act Cases. To create this cloud, I combined the transcripts from all four days of argument and then let Wordle work its magic.
Initial observations: Given the fact that the words "Justice" and "Mr." appear in the transcript each time a party speaks, one might expect these honorifics to be repeated in the transcript more than any other word.
The substance of the monumental arguments, however, reveals itself once you look beyond these two words. For example, the words "Congress," "people," and "market" underscore some of the most difficult questions facing the Supreme Court; that is, questions concerning the separation of powers,* federalism, and the Commerce Clause.
Based on the amount of space occupied by Justice Sotomayor's name relative to those of her colleagues, it appears that the first of two justices appointed by President Obama was the most vocal justice on the bench. (And not surprisingly, Justice Thomas's name did not make it into the cloud.)
*In an interesting twist earlier this week, President Obama made several controversial remarks that provide an excellent illustration of the inherent tension between the separate branches of government. Here is a video of those remarks:
Judge Jerry Smith of the Fifth Circuit (a Reagan appointee) responded in a separate case by ordering the federal prosecutor in that case to submit a paper, "three pages single spaced," detailing the DOJ and Attorney General Holder's position on the Judiciary's authority to strike down laws that violate the Constitution. (For a brief overview of the chain of events that led to Judge Smith's unusual order, check out The Wall Street Journal Law Blog's coverage of the issue here.)
The Blog of LegalTimes has posted a copy of Attorney General Holder's letter in response here: PDF. Did the DOJ meet its 3-page minimum requirement? Were the President's comments out of line? Please let me know what you think in the comments below!
Yesterday the Supreme Court heard oral arguments for the third consecutive day concerning the constitutionality of the Affordable Care Act. The following articles offer thoughtful commentary on yesterday's debate:
Yesterday the Supreme Court heard the much-anticipated oral arguments over the constitutionality of the Affordable Care Act's individual mandate. As any Supreme Court advocate worth his or her salt will tell you, a justice's demeanor during oral arguments is not always indicative of their disposition toward the case. Nevertheless, here is what the web is saying about day 2:
Here is an audio clip from yesterday's oral arguments courtesy of the Washington Post, in which Justice Kennedy "suggests to the solicitor general that the government needs to justify its position that it is within Congressional powers to require individuals to have health insurance."
You can read David Fahrenthold and N.C. Aizenman's full article on the Washington Post's website here:
As I mentioned on the Legal Skills Prof Blog (here), I recently finished reading writing guru Ross Guberman's new book entitled "Point Made: How to Write Like the Nation's Top Advocates." I highly recommend the book to any lawyer, professor, or law student who is interested in improving their writing, but is not willing to suffer through another stuffy treatise. It seems that Ross has kept quite busy since the release of his book last year. In anticipation of this week's oral arguments on the Affordable Care Act, Ross has put together a list of 140+ writing tips using the Solicitor General's brief to the Supreme Court (otherwise referred to as the "brief of the century") discussing the constitutionality of the Act. You can read his comments here: PDF.
On a related note, you can listen to an audio recording of yesterday's oral argument concerning the Anti-Injunction Act's applicability to the Health Care Reform Cases by clicking on the following YouTube video:
Back in December I wrote about the circuit split now before the Supreme Court in the Health Care Reform Cases (here). I recently came across an interesting segment of Uncommon Knowledge hosted by Peter Robinson:
Richard Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution and the Laurence A. Tisch Professor of Law, New York University Law School, and John Yoo, a professor at the University of California at Berkeley law school, examine the merits of various constitutional arguments for the Supreme Court's striking down Obamacare.
Here are some of the highlights:
Robinson: "In one word, . . . will the court help to reelect President Obama?"
Yoo: "Yes."
Epstein: "Well, probably."
* * * *
Yoo: "If there were nine Richard Epsteins on the Court, it will still break out 5-4 on a lot of issues."
* * * *
Epstein: "John, you haven't read the whole thing have you?"
Yoo: "I don't want to. . . . I've read like 500 pages."
* * * *
Yoo: "If I had to bet real money, I think the Court will strike it down."
* * * *
Epstein: "[Watch for the Justices to] tip their hands [during oral argument]. . . . Watch Justice Kennedy's body language."
Since the late 1960s, the Supreme Court has limited oral arguments to one hour per case in all but a handful of cases. With the Court's announcement yesterday that it will hear an unprecedented 5.5 hours of oral argument in the Health Care Reform Cases, the Patient Protection and Affordable Care Act (PPACA) joins the pantheon of landmark legal battlegrounds that have shaped American jurisprudence.
SCOTUSBlog.com’s Lyle Denniston reports:
On Monday, March 26, the Court will hear one hour of argument on whether challenges to the individual insurance mandate are barred by the federal Anti-Injunction Act. On Tuesday, March 27, the Court will hear two hours of argument on the constitutionality of the individual insurance mandate. And on Wednesday, March 28, the Court will hear 90 minutes of argument in the morning on the question of whether any of the ACA, or some parts of it, could survive if the Court were to strike down the individual insurance mandate, followed in the afternoon by one hour of argument on the constitutionality of the new law’s expansion of the federal Medicaid program for the poor and disabled. (See here.)
Perhaps the most controversial issue before the Court involves the PPACA's individual mandate, which would require almost all Americans to purchase health care insurance starting in 2014. As CNN.com reported yesterday (here),
Three federal appeals courts have found the PPACA to be constitutional, while another has said it is not, labeling it "breathtaking in its expansive scope." That "circuit split" all but assured the Supreme Court would step in and decide the matter.
Professor Jerry Goldman explains this significance in the following video:
In case you missed it in the video, here is the list of longest oral arguments:
If the time allotted by the Court for oral arguments is indicative of a particular case's legal significance, then next year's Health Care Reform decision will rank among the Supreme Court's most notable. Stay tuned for more coverage of the circuit splits before the Supreme Court in what is shaping up to be an "epic" term.
