A few days ago, I wrote on Slate how Marbury v. Madison might be the key to the Affordable Care Act. You can read it here.
On Tuesday, the Supreme Court ruled that people who are injured or killed by the side effects of vaccines cannot sue vaccine manufacturers for alleged design defects. Another day, another victory in the Supreme Court for a business defendant—and another victory for preemption, the legal doctrine under which state law can be nullified when it conflicts with the language or purpose of federal law, in this case the 1986 federal vaccine compensation statute.
It was also yet another victory for the Chamber of Commerce of the United States. The Chamber, through its litigating affiliate, the National Chamber Litigation Center, regularly files briefs as an amicus curiae (“friend of the court”) in the Supreme Court on behalf of the business community—and it regularly prevails.
In a recent ACS Issue Brief, I crunch the numbers. Since Samuel Alito became a justice in 2006, the Court has decided 66 cases in which the Chamber of Commerce filed a brief. Of these cases, the party supported by the Chamber has won 46. That’s a very high win rate: just under 70%. It suggests that while the arguments in the Chamber’s briefs probably aren’t swaying the justices (amicus briefs rarely do), they are finding a receptive audience at One First Street. […]
Judge Henry Hudson’s recent decision striking down the central provision of the health insurance reform statute has gotten (pardon the pun) nearly universal coverage in the legal blogosphere. But I was struck by a section of the opinion that has received little notice: the passage early in his opinion in which Judge Hudson rejects the federal government’s argument that Virginia’s constitutional argument should fail because it is a “facial challenge.”
Virginia’s challenge to the mandatory coverage provision is facial because it alleges that the provision is unconstitutional on its face—that it is invalid as it is written, without regard to any particular circumstances in which it might be applied. (That makes sense, since the provision hasn’t yet gone into effect.) Accordingly, in defending the lawsuit, the United States cited a case that every government loves to cite in constitutional cases: United States v. Salerno. That 1987 case, written by Chief Justice Rehnquist, stated that a facial challenge cannot succeed unless the challenger can “establish that no set of circumstances exists under which the Act would be valid.” In the health care litigation, the United States has argued that this standard isn’t met because the plaintiffs can’t show there isn’t some person somewhere for whom the decision not to buy health insurance counts as an active economic choice regulable by Congress under the Interstate Commerce Clause. […]
Yesterday’s argument in Snyder v. Phelps produced more than its share of intriguing story lines: two first-time Supreme Court oral advocates (including one representing her father), a spirited debate inside the courtroom, and an even more spirited demonstration outside. And, of course, there are the you-can’t-be-serious facts of the case: protesters holding up signs saying “Thank God for dead soldiers” (and worse) near the funeral of a fallen Marine and then posting similar messages on the Internet; the slain soldier’s father winning a verdict of $5 million for intentional infliction of emotional distress and invasion of privacy; the Court of Appeals reversing the entire judgment on First Amendment grounds.
I want to focus, though, on a different story line: what the Snyder argument may tell us about the First Amendment worldview of the Court’s newest member.
One of the unfairest knocks on Elena Kagan during the confirmation process was that she was yet another “stealth nominee”—a liberal, sure, but one without a paper trail, whose personal views about the Constitution were shrouded in a fog of careerism and collegiality. This was never an accurate charge. As a law professor, Kagan wrote around 350 pages worth of law review articles. That may be less than most people who get tenured appointments at Chicago or Harvard, but it’s about 320 pages more than John Roberts ever published. (Don’t get me wrong: Roberts was an extremely qualified nominee—but he was the one without a paper trail.) More importantly, Kagan’s publications reveal a lot about how she approaches constitutional law. […]