How Appealing

Wednesday, June 29, 2011

"Sonia Sotomayor: How She Became the Public Face of the Supreme Court's Liberal Wing." Law professor David Fontana has this essay online at The New Republic.
Posted at 11:08 PM by Howard Bashman

"Roberts Court Wraps up Term, Leaving Significant Conservative Mark": This segment (transcript with link to video) featuring Marcia Coyle appeared on yesterday's broadcast of the PBS program "NewsHour with Jim Lehrer."
Posted at 11:07 PM by Howard Bashman

"Common Sense and Sensibility": Linda Greenhouse has this post at the "Opinionator" blog of The New York Times.
Posted at 09:54 PM by Howard Bashman

"High court could make gay marriage a 2012 issue; In 2004, the topic motivated conservative voters in Ohio and other states": Tom Curry, national affairs writer for, has this report.
Posted at 09:50 PM by Howard Bashman

"Alabama Chief Justice Sue Bell Cobb to step down Aug. 1": The Birmingham News has this update.
Posted at 09:48 PM by Howard Bashman

"Newspaper Chain Fights for Copyright Troll's Survival": David Kravets has this post at's "Threat Level" blog.

And VEGAS INC has reports headlined "Righthaven disputes judge's criticism on disclosures" and "Another judge threatens to dismiss Righthaven copyright suits."
Posted at 08:40 PM by Howard Bashman

"Lokuta's reinstatement bid's final shot: U.S. high court filing." This article appears today in The Times Leader of Wilkes-Barre, Pennsylvania.

And The Citizens' Voice of Wilkes-Barre reports today that "Lokuta takes her fight to Supreme Court." That newspaper has posted the petition for writ of certiorari at this link.
Posted at 08:20 PM by Howard Bashman

"Bush v. Gore: Is it worse for a child to see pornography or graphic violence?" Brian Palmer has this explainer essay online at Slate.
Posted at 08:02 PM by Howard Bashman

"Supreme Court: 2010-11 term in review." Joan Biskupic has this article today in USA Today.
Posted at 07:58 PM by Howard Bashman

"Appeals court upholds health care law": Joan Biskupic of USA Today has this news update.

The Columbus (Ohio) Dispatch has a news update headlined "Federal appeals court upholds Obama's new health care law." reports that "6th Circuit panel upholds individual mandate."

The Hill has a blog post titled "Court rules healthcare reform law is constitutional, upholds mandate."

And this evening's broadcast of NPR's "All Things Considered" contained an audio segment entitled "Federal Court Upholds Health Care Law" featuring Nina Totenberg.
Posted at 07:44 PM by Howard Bashman

"Divided Appeals Court Rules Against FBI In Death Penalty Case": Mike Scarcella has this post today at "The BLT: The Blog of Legal Times."

You can access yesterday's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 07:22 PM by Howard Bashman

In Bashman newz from New Zealand: The New Zealand Herald has a news update headlined "Thugs bash man, then force nephew to get cash."
Posted at 02:11 PM by Howard Bashman

"Physicians file lawsuit to stop abortion clinic restrictions": Today's edition of The Kansas City Star contains an article that begins, "A father-daughter physician team is going to court to stop the state from imposing new rules that could potentially leave the state abortion free by the end of the week."
Posted at 01:27 PM by Howard Bashman

The U.S. Court of Appeals for the Sixth Circuit has issued its ruling in Thomas More Law Center v. Obama: You can access the ruling at this link. The line-up on the three-judge panel is as follows:
MARTIN, J., delivered the opinion of the court, in which SUTTON, J., and GRAHAM, D. J., concurred as to Parts I (background) and II (subject matter jurisdiction) and in which SUTTON, J., concurred in the judgment. SUTTON, J. (pp. 27-53), delivered the opinion of the court as to Part I (taxing power) of his opinion, in which GRAHAM, D. J., joins. GRAHAM, D. J. (pp. 54-64), delivered a separate opinion concurring in part and dissenting in part
As the lead opinion explains, "We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause and therefore AFFIRM the decision of the district court."

Senior U.S. District Judge James L. Graham's separate opinion concludes:

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress's Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 ("[D]epending on the level of generality, any activity can be looked upon as commercial."). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

Thus, only one judge on the three-judge panel would have struck down the federal healthcare mandate as beyond Congress's powers under the Commerce Clause.

My earlier coverage of this case can be accessed here (linking to the biographies of the judges on the appellate panel) and here (linking to the appellate oral argument audio and initial news coverage of the oral argument).

In early news coverage of today's ruling, The Associated Press reports that "US appeals court upholds Obama health care law."

Bloomberg News reports that "Obama Administration Health Care Law Upheld by U.S. Appeals Court Panel."

Reuters reports that "Appeals court backs healthcare law, win for Obama."

Bill Mears of reports that "Appeals court rules in favor of Obama on health care."

The New York Times has a news update headlined "Appeals Court Upholds Obama's Health Care Law."

Noam N. Levey and David G. Savage of The Los Angeles Times have a news update headlined "In major test, appeals court upholds Democratic healthcare law."

The Wall Street Journal has a news update headlined "Appeals Court in Ohio Upholds Health Law."

The Washington Times has a news update headlined "Appeals court upholds Obama's health care law."

The Cincinnati Enquirer has a news update headlined "Cincinnati appeals court upholds Obama's health-reform plan."

At "SCOTUSblog," Lyle Denniston has a post titled "Health insurance mandate survives -- barely."

And at the "aca litigation blog," law professor Brad Joondeph thus far has written five posts about the ruling. You can access those posts here, here, here, here, and here.
Posted at 12:47 PM by Howard Bashman

"Court Jesting: These Sentences Don't Get Judged Too Harshly; Creative Writing Rules for Some on Bench; 'Tough as a Three-Dollar Steak."' Nathan Koppel has this article today in The Wall Street Journal. And at's "Law Blog," Koppel has this related post.

As for what may explain the upsurge in creative opinion writing, Koppel's article notes one possible explanation -- a desire to attract attention from the growing number of widely read law-related blogs.

The article correctly observes that sometimes creative opinion writing succeeds, while other times it does not. I have thus adopted a policy here at "How Appealing" of trying to highlight the best examples of the genre, while simply ignoring those instances that fall flat or seem to amount to little more than unseemly pleas for attention.
Posted at 10:58 AM by Howard Bashman

Watch live from the Aspen Ideas Festival -- "Does the Supreme Court Follow the People?" The program, featuring Justice Stephen G. Breyer, law professor Larry Kramer, and retired Justice Sandra Day O'Connor, with law professor Jeffrey Rosen serving as moderator, is scheduled to begin at 11 a.m. eastern time today.

You can view the event live via this link. Thanks to law professor Rick Hasen for the pointer.
Posted at 10:46 AM by Howard Bashman

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