Tuesday round-up

By Nabiha Syed
on Sep 27, 2011 at 8:44 am

With the start of the Term less than a week away, coverage centered on what will come before the Court – and when.

Yesterday the Justice Department announced that it would not seek en banc review of the Eleventh Circuit’s decision striking down the individual mandate as unconstitutional, setting up a possible petition to the Supreme Court and increasing the likelihood that the Court will consider the health care challenges before the end of June 2012.  Greg Stohr and Seth Stern of Bloomberg have coverage of the government’s decision; they observe that seeking en banc review could have pushed the Court’s involvement in the health care challenges off until after. In their coverage, Jennifer Haberkorn of Politico, David Savage of the Los Angeles Times, and Robert Barnes of the Washington Post also agree that the Court is likely to review the health care cases during its October 2011 Term. At the Volokh Conspiracy, Orin Kerr reviews possible reasons why the government declined to seek en banc review and concludes that “the folks that should be most excited about DOJ’s decision are the new set of Supreme Court law clerks. Their Term just got a whole lot more interesting.” However, in his coverage of the decision, Lyle Denniston of this blog cautions that “even if the Court does accept one or more [health care] cases for review, and decides them by the end of next June, that result would not necessarily settle the constitutionality of the insurance mandate.”

With oral arguments set to resume on Monday, many journalists are previewing the upcoming Term.  Writing in the Atlantic, Andrew Cohen focuses on the criminal cases that are already slated for argument, but he also describes the Term as potentially “one of the most challenging in decades – and certainly the most revealing one yet of John Roberts’s six-year tenure as Chief Justice of the United States.” At Forbes, Daniel Fisher previews what he characterizes as one of this Term’s “sleeper” cases:  First American Financial Corp v. Edwards, in which the Court will consider whether an uninjured private purchaser of real estate services has standing to sue under the Constitution.  In the ABA Journal, Mark Walsh looks at several cases on the Court’s docket involving the adequacy of legal representation at. Lawrence Hurley of Greenwire previews one of the environmental cases on the Court’s docket, PPL Montana, LLC v. Montana, and notes that two former Solicitors General – Paul Clement and Gregory Garre – will face off in the case.  In an op-ed for the Los Angeles Times, Michael McGough examines United States v. Jones in light of a recent mock argument of the case held at William and Mary Law School; based on the mock argument, he concludes that although the case “will resonate with ordinary citizens who may feel their privacy  has been eroded by technological processes,” “they shouldn’t get their hopes up.” The Contra Costa Times (via the San Jose Mercury News) also previews the Jones case.