I nearly did not write this post this week. (I’ll pause while some of you wish that ‘nearly’ weren’t a part of that sentence.) I started the week with a mild toothache. By the time I reached my dentist on Tuesday morning, that niggling pain had bloomed into an infection that spread from my tooth to my jaw bone to the soft tissue of my face. Despite oral penicillin (and Vicodin!), I developed a high fever, the left side of my face swelled to grotesque proportions, and my jaw seized shut. I ended up in an ER on IV antibiotics.
While portions of the federal government ground to a halt due to insufficient funds, I held ice packs to my head and prayed quiet prayers about septicemia and the relative impermeability of the blood-brain barrier. Vaguely, in the background, I knew Congress and the president were arguing about health care. About funding the PPACA. Obamacare.
My heart goes out to folks harmed by the federal government shut-down this week. I also agree with those who are dismayed that Capitol Hill can’t reach a consensus sufficient to end the current crisis. It’s their job to find workable agreements, after all. That much, I hope most of us can agree on. Since we’re not here to agree, let’s talk a bit about Obamacare, the source of this week’s trouble in Washington . . . .
Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing to take the case make their pitch and try to persuade the client that their firm is the best suitor.
In my new book, Unprecedented: The Constitutional Challenge to Obamacare (affiliate link), I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.
How did these litigants go about choosing their counsel? Which lawyers and law firms got passed over?
Elections have consequences, and right now I’m waiting for Republicans to start paying the piper. I’m looking at you, Ted Nugent. You declared, nay promised, that if Obama was reelected, you’d either be dead or in jail within a year. Well, tick tock buddy, we’re all waiting.
In fact, there were many Republicans who promised to do all sorts of horrible things should Barack Obama win. And apparently some of them are following through. Nothing makes a political statement about the vibrancy of our democracy than petulantly firing people when democracy doesn’t go your way.
And heck, we don’t even know how many people will be “not hired” because, “Grrr… we have to pay for our employees’ health care because we were too partisan or stupid to support a single-payer system that would have shifted the burden of health insurance away from private employers.”
At least, we won’t know unless they tell us. Which, incredibly, one solo practitioner apparently did, in a rejection letter to somebody who applied in response to her Craigslist ad. It’s easily the best post-election rejection letter we’ve seen….
* Sorry, I don’t like bike dudes; so many cyclists are rude, irresponsible, and annoying, to both pedestrians and drivers. If I were king, they’d go to prison; but I’m not, so we’ll have to settle for reeducation. [New York Times]
* What does Bruce Springsteen think of Obamacare? [Althouse]
* A few jurisdictions have laws against “attractiveness discrimination.” Try to guess which ones, then click on the link to see if you’re right. [What About Clients?]
* Larry Lessig and Ilya Shapiro debate the value of disclosure requirements in the campaign finance context. [Lean Forward / MSNBC]
Thursday the Supreme Court will sit for its final session of October Term 2011. The Court will issue opinions in all the cases pending before it. For example, the Court will let the American people know whether they ever have a right to lie.
The Court will also rule on the case that, according to a sign I saw earlier, presents the question of whether we need to “Get The Feds Out of Medicare.” I’m not sure about the details of that case though, because it hasn’t gotten much press attention (I only read the Bicycle Times).
Today, however, the Court issued two opinions in argued cases. The fun in the courtroom was not in the opinions, but in the dissents….
It's their world and we're all just playing in it.
* This is a great article on why the Supreme Court doesn’t leak, while more important institutions, like our national security apparatus, leak like a freaking sieve. [New Republic]
* Most law professors think the Affordable Care Act is constitutional. Most law professors think the Supreme Court will overturn the ACA anyway. ARE YOU NOT ENTERTAINED? [Bloomberg]
* And now for some SCOTUS thoughts from the amazingly amorphous Mitt Romney. Look at his works in equivocation, ye mighty, and despair. [Washington Post]
* You know, I don’t know how they afford this stuff, but having an inalienable right to “paid vacation” really feels like the kind of European invention we should be emulating. Good ideas can come from anywhere, folks. [Legal Blog Watch]
* Letting students sit for the bar exam after their second year but then making them come back to school for an even more obviously useless third year is a great way to make somebody have a total mental dissociative break. Just imagine calculating how much money you’re being forced to waste while you sit there in a 3L seminar called “Law and Ceramics.” [Faculty Lounge]
* Oh, I like this. The little Democrat in me can’t help but like this: a “global” financial transaction tax. Mmm… there’s nothing like the smell of global redistributive fairness. [Overlawyered]
* Jonathan Turley seems hurt that Ann Althouse and other conservative academics acted in a way that shows “we have lost the tradition of civil discourse in this country.” Yeah, umm, Professor Turley, perhaps you didn’t read the footnotes, but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats. [Jonathan Turley]
This morning saw significant activity at the U.S. Supreme Court. Although we did not get a ruling in the health care reform case (aka Obamacare), SCOTUS did hand down a number of important opinions. Check back later today, when we expect to have color commentary from our Supreme Court correspondent, Matt Kaiser, who attended the proceedings in person.
In the meantime, here’s a quick and dirty summary of what transpired at One First Street this morning, including links to the underlying opinions. The most high-profile case was the Court’s decision on the controversial Arizona immigration law, but there were other major cases that were resolved today as well….
I respectfully request that the Court allow the American public the opportunity to learn contemporaneously or near-contemporaneously how it resolved one of the most significant issues to come before it in many years. I urge the Court to provide live audio and video coverage of its announcement in the same manner it provides delayed audio recordings of oral arguments. At the very least, I ask for release of such a recording immediately after the announcement.
No wonder a “no guests” policy has been instituted at the SCOTUS clerk happy hours. The pressure to keep the Obamacare secret — but also to spill it! — must be mind-blowing.
Some of the current clerks are married; do you think they’ve been able to resist telling their spouses? If a clerk goes out for drinks with friends and gets a little tipsy, might he spill the beans? If a clerk has brunch with her parents on Sunday for Father’s Day, and Dad speculates about how the case will come out, could the clerk’s telling facial expression reveal the ruling? [FN1]
If I were one of the Elect this Term, I’d never leave my apartment except to go to work, and I’d set my email auto-reply and voicemail greetings to say the following: “Please be advised that I will be completely unavailable — for in-person meetings, telephone conversations, or any other type of contact — until June 25, 2012. Thank you for your understanding.”
This brings us to today’s topic: the latest news in Supreme Court clerk hiring. Which lucky (and brilliant) young lawyers will find themselves at One First Street for October Term 2012?
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