SCOTUS Watch

King v. Burwell: The week in Supreme Court orals was not just the King v. Burwell case though obviously that is what received most of the attention. Balkinization and Lawyers Guns & Money blogs are two that have done yeoman work defending the government here. LGM has spent most of the time ridiculing the "card says moops" (Seinfeld reference to a card that clearly meant "Moors") and "troofers" crowd, along with the idea that Republicans have any desire to fix "Obamacare." 

Basically, we have a gotcha argument that should only work -- both given overall textual understanding and negative federalism effects that are of constitutional moment -- if it is blatantly obvious.  If anything, it is obvious the other way though if you try hard, you can figure a way to make the challengers position not totally stupid. This makes the whole thing very tiresome, even without the bad substantive policy results.  And, add that the advocate here is a tool, it was hard to spend over half-hour (since of course he got extra time) of his b.s.  Wrong and bad.

Carvin basically got it from each of the liberals with Sotomayor perhaps adding a particularly important point. One that got Kennedy concerned. Roberts had little to say, except to make it clear that the justices have no wish to decide this on standing. Meanwhile, fwiw, including because Verilli has received some criticism, the SG to me did a very good job. Part of this is shown by only Scalia and Alito really asking him any questions.  We shouldn't take too much concern of this, probably, but he had a harder time of it last time around.  Kennedy seemed stupid curious but his heart didn't really seem in it.  Roberts unlike previously kept his counsel. 

I'm biased here, of course, but Verilli seemed well prepped and easily balanced a bunch of things, including things that amount to b.s.  For instance, there were comments that came off as naive. So the ruling will be problematic; Congress ("this Congress"?) or the legislatures can fix it!  Sure. Also, Scalia wanted to put it on record that if the statute was stupid, the courts shouldn't bend over backwards to fix it. Fine. The statute isn't stupid here; the text can be reasonably applied.  Or, Alito notes few states without exchanges flagged the coercion problem some raised. It is like politics had nothing to do with it!  Verilli was reasonable.

[the next day, Scalia gave a presentation about statutory interpretation, which is a major concern of his off the bench writing; reading tweets, his "rules" helped the government a lot more than what is clearly "his" side] 

Other Cases: There were other cases of some note. One made Arizona's usage of a voter initiative to set up a redistricting commission look in trouble. The supporters flagged original understanding that gave a wide meaning to legislature (the ability of Congress to legislate here also is a wild card) that got the usual response when that doesn't sound right -- yeah okay. This time it was from the likes of Scalia and Alito.  I think the question actually might be close, though inclined largely to see this as a political question for the elective branches if there is any wiggle room.

A somewhat interesting, though the orals soon got into the weeds and boring, case involving hotel register information might be an interesting opinion.  Another case that has might provide an exception to the currently broad application of the Confrontation Clause dealt with usage of school teacher questions of a third year old without having the defense in some way get the ability to interview the child themselves.  The last case was a complicated habeas question. 

SSM: SCOTUS will have same day audio for these cases, oral arguments at the end of April. They also put the briefs front and center on the front page, party and amicus. The briefs for same sex marriage are starting to come though "the people's brief" and the Administration brief are both not there yet.  There is likely to be a LOT of them, but some amicus briefs are there now.  The state briefs are not there yet. 

The briefs start to be repetitive, so those with some special aspect are particularly notable. For instance, from Republicans or conflict scholars.  The "Cleveland Choral Arts Association" brief that ends with a long quote from "West Side Story" is a nice one. "American Humanist Association and Center for Inquiry" usefully -- if with an unnecessary extended rejection of legislative prayers -- spells out how pure morality isn't enough of a state interest.  A historical brief spells out the history of discrimination. I'm looking for one that covers the history of marriage, including various forms of same sex marriage.  The history of sodomy laws was useful in Lawrence and some context on "traditional" marriage and the "newness" of SSM is important here. 

There is now a break in the action before SCOTUS hears some more oral arguments.  Orders and opinions will probably be forthcoming.