Paul Clement

by Jeremy Leaming

The spin is in on today’s health care law oral arguments – Paul Clement, the attorney for the state’s challenging the law’s minimum coverage provision, is awesome, and the provision is in trouble.

But, as noted yesterday by constitutional law professor Garrett Epps you’re on wobbly ground when predicting Supreme Court opinions based on oral argument theatrics. Sure, Clement is an outstanding high court litigator -- we’ll take it from SCOTUSblog founder Tom Goldstein who lavished praise on Clement at an oral argument preview last month, calling him one of the greatest attorneys of his generation.

What we can tell from today’s oral argument is that the Solicitor General Donald Verrilli, Jr., largely focused on Congress’s constitutional authority to regulate interstate commerce. The government has also argued that Congress’s constitutional power to tax and spend also supports the minimum coverage provision. Most of the justices, however, we're glued to the commerce clause question.

SCOTUSblog’s Lyle Denniston, a veteran Supreme Court correspondent, wrote of today’s oral argument that Justice Anthony Kennedy, “after first displaying a very deep skepticism,” provided toward the end of oral argument “the impression that he might yet be the mandate’s savior."

Additionally, the high court’s four moderate to left-of-center justices appear inclined to vote in favor of the ACA provision, which requires many to start carrying a minimum amount of health care insurance in 2014.

By Giovanna Shay, an Associate Professor of Law at Western New England College School of Law

Today in Brown v. Plata, the Supreme Court in a 5-4 decision affirmed a three-judge court’s order requiring the California Department of Corrections to reduce its prisoner population to within 137.5% of the design capacity of its facilities.  Plata makes clear that the restrictions placed on prisoner release orders by the Prison Litigation Reform Act (PLRA) do not tie judges’ hands when they are faced with unconstitutional conditions that cannot be remedied by other means. 

The California conditions described in the Plata decision were inhumane by any standard.  Justice Kennedy described them as “exceptional.”  Prisoners were housed in a system that was at 200% of capacity for over a decade.  Because medical and mental health systems could not function due to over-crowding, prisoner deaths were all too common. 

The remedy in Plata was necessary.  However, the type of over-crowding described in Plata requires, not just conditions litigation, but a criminal punishment overhaul.  Simply put, California needs to lock up fewer people, as does our nation more generally. The Court describes various methods of reducing the prisoner population by releasing prisoners who are not a safety threat. This is a good goal, and in a time of budget crunch, one shared (at least in part) by others across the political spectrum (check out Right on Crime).

But the big question is how to change our criminal punishment policies to shrink our nation’s network of prisons, the world’s largest.