Our third topic, opening today, is Maples v. Thomas, in which the Court is considering whether a death row inmate is prohibited from arguing in federal court that his sentence is unconstitutional because his lawyers missed a filing deadline in state court.  This topic will remain open on the Community page for one week. If you are new to the Community page, please read Tom’s guide to participating.

The last two days’ topics – Affordable Care Act and Legal blogging – remain open.

Our topics for the rest of the week are the Supreme Court’s patent jurisprudence and originalism as a mode of Supreme Court jurisprudence. We will let you know what next week’s topics are soon.

Both of the open topics received more great comments yesterday and we are grateful to all of you who are thoughtfully utilizing the discussion space. Five of our favorite comments from yesterday are below.

Margaret DiBianca

On one hand, I think that legal blogs and legal academy serve similar purposes–primarily, to educate and inspire deeper thought. On the other hand, the two “channels” differ in that blog content is unregulated and, for the most part, unedited. In part, this is a result of the “need for speed”–getting content out quickly is an essential part of blogging done well. In part, this is a result of each blogger being the king of his own domain, with no higher power to suggest that a post or perspective may not be accurate or appropriate.

Although I am devoted blog reader and author, one of my biggest concerns for the future of the legal blawgosphere is this lack of censorship. Without editors, some bloggers speak about topics in areas of the law of which they are unfamiliar or take a shock-jock approach to their posts. And, because the squeaky wheel gets the oil, so they say, those who are the loudest are often considered the “experts”–even if they are less than knowledgeable and far from an expert. I think that, over time, this will leave a sour taste in the mouth of readers who ARE the experts and will result in a discrediting of blogs as a source of legitimate legal commentary and thought.

So what is the solution? Of course, it would be best if these individuals were to suddenly mature and recognize that the shock-jock approach has no place in the legal profession, I doubt this will happen. I suppose the best alternative would be that the firms for which these individuals write actually read the blogs and take the author to task for his or her approach and/or content. Similarly, I think it’s up to those of us who take our blogs seriously and see blogging as more than a marketing exercise to be more judicious in who we link to and read.


Mike Sacks

From my time doing First One @ One First, I found that small-c community really mattered not only in building readership – something SCOTUSblog need not worry about – but also in fostering a sense of belonging in the Court-watching world. Before the law blogs, there was the Supreme Court press room, the Supreme Court sidewalk, and Supreme Court seminars in schools across the country. But there was no one place we could all find each other and mark out to our heart’s content.

Now there are places online where we can engage with each other on the same site and read bloggers debating each other across different sites. Still, the Court-watching community can sometimes feel balkanized. SCOTUSblog’s Community feature has the potential to be our main hub for discussion.

The challenge, then, will be how to overcome any sense that SCOTUSblog is the lecture hall to the many law blogs’ breakout groups – that is, the place where we learn about and research what’s happening at the Court only to take our thoughts elsewhere. That part, however, is up to SCOTUSblog’s readers. I trust, however, that we’re a talkative bunch.

Alfred Brophy

Blogs seem to be taking over the role that the New York Times used to serve…. Most, if not all, ideas appeared in the Times before they appeared (usually a few years later) in a law review. While a lot of us were quite skeptical of them a half dozen years ago, we’ve accepted them as part of the legal academic landscape, at as the foothills if you will, of the landscape. I’m not sure that’s good, actually. While we get analysis quickly on blogs, a lot of it is shallow. It may, however, be as much analysis as the average person wants on a topic. What has emerged is the blog as quick and light commentary. And for those (perhaps few) who want more serious commentary, it comes later. I suppose there’s a place for the quick takes – and maybe for the occasional post that injects some new perspective or maybe even tries to re-direct the course of thinking.

Nathaniel Burney

I’d say that, for most practices, it’s foolish to expect a blog to generate new business. If it’s worthwhile and well-written, a blog can be reassuring to existing clients, or provide an extra level of confidence to a potential client or referrer who was already considering you. But there aren’t many who say to themselves “I need a good lawyer, time to go read a bunch of blogs.”

That said, there are practices where a blog can generate new business, when they establish you as someone who knows what the heck they’re talking about — or someone with views the potential client happens to agree with. A reputation as an authority on a subject doesn’t hurt, and a good blog can help build such a reputation.

Exceptions exist. I get a surprising number of new clients from my own blog, and have done almost from the start, yet it never ceases to amaze me to learn that it’s what attracted the client. I write it strictly for my own amusement, post mostly unedited first drafts, and don’t stick to any one topic. It is not a marketing tool by any means, and yet… And something tells me that if I started writing it with the intention of attracting clients and referrals, it would cease to do so immediately. Exceptions exist, but they are not to be counted on.


Randy Barnett

The Supreme Court should remand the Affordable Care Act to Congress for its further consideration.

The Affordable Care Act (ACA) was a constitutional mistake and a historical accident. In the fall of 2009, 60 Senate Democrats were struggling to pass some type of health care reform, any type of health care reform. There were not 60 votes for “single payer” (i.e. Medicare for Everyone); there were not even 60 votes for a “public option” (i.e. voluntary Medicare for pre-retirement Americans); and there were certainly not 60 votes to do anything that would raise taxes on those making less than $200,000 per year.

So Democrats went into a closed room — the same room that produced the Cornhusker Kickback and the Louisiana Purchase — and adopted the individual insurance mandate under its Commerce Clause power. It was not as though they weren’t warned. The Congressional Research Service correctly informed them that a mandate that all Americans enter into a contractual relationship with a private company for the rest of their lives was literally unprecedented and of dubious constitutionality. Senate Republicans made a constitutional objection to the individual mandate, which the Democrats defeated on a straight party-line vote the day before passing the Act on Christmas Eve.

But this bill was likely never intended to become law. It was intended to get the issue out of the Senate with 60 votes in favor of health care reform. The real bill would then be written in conference with the House and voted on later. But then something unexpected happened: Scott Brown was elected Senator from Massachusetts (!) on this issue. Now Democrats had a choice. Approve the constitutionally-suspect Affordable Care Act in the House (over the strenuous objection of many Democratic members), or go back to the drawing board. But with Republicans and millions of Americans now vocally protesting the constitutionality of the bill, for the first time in American history, a sweeping new social welfare scheme was enacted with the votes of only one party over bipartisan opposition.

Heeding the advice of legal academics, the Democrats wagered that the courts would never strike down so ambitious a social welfare scheme. Then, when this elaborate mechanism eventually failed to deliver on its promises of “bending the cost curve” and “universal coverage” — after private insurance companies had been turned into regulated public utilities — they could then push for their real desire: Single Payer.

Although Congress is a co-equal branch of government, the Supreme Court need not “defer” to what happened here. Instead, it should refuse to extend to Congress the entirely novel and dangerous power to compel all Americans to do business with whatever private company that Congress happens to have the power and votes to regulate. The Court should send this bill back to Congress so Congress can use its ample powers under existing doctrine to tax and spend, as well as to regulate interstate commerce. Such a ruling would affect no other law that has ever been enacted.

I predict that the result of such a decision would be major health care legislation that would not only be far better public policy, it would receive the same type of bipartisan support that has previously been enjoyed by every major piece of social-welfare legislation in our history.


Posted in Community

Recommended Citation: Kali Borkoski, Today in the Community: October 5, 2011, SCOTUSblog (Oct. 5, 2011, 10:01 AM), http://www.scotusblog.com/2011/10/today-in-the-community-october-5-2011/