Washington, D.C. appellate lawyer and SCOTUSblog founder Tom Goldstein weighed in today on yesterday’s news that the Justice Department would not ask the full 11^th U.S. Circuit Court of Appeals to review the 2010 federal health care overhaul:

Seeking en banc review in the Eleventh Circuit would have made sense only if the government was going to press the Supreme Court to defer reviewing the constitutional question until next Term (including by denying review of the pending Sixth Circuit case).  So, the United States would have been making a choice to delay a final answer – because Supreme Court review is inevitable – for a year.  I expect that the agencies involved strongly resisted that delay, and the Solicitor General decided that the upside of potentially getting the panel opinion reversed was not actually that great, because any victory could itself be temporary.

The 11^th Circuit divided 2-1 last month in declaring unconstitutional the part of the statute that requires many Americans to secure health insurance, with Chief Judge Joel F. Dubina and Judge Frank M. Hull co-writing the majority opinion and Judge Stanley Marcus dissenting. The deadline to seek en banc review of that decision was yesterday.

The constitutionality of the 2010 law has divided the nation’s appellate judges, and Goldstein’s SCOTUSblog colleague Lyle Denniston analyzes here how the 11^th Circuit case fits into the bigger picture.

The recently released Jacqueline Kennedy oral history interviews reveal she found Justice Arthur Goldberg insufferable and had some of the same frustration with the court’s “isolation” that the court’s critics might express today.

Goldberg, who rose to prominence as a union lawyer, first served as Kennedy’s secretary of labor and the president named him to the U.S. Supreme Court when Felix Frankfurter stepped down.

Jackie told interviewer Arthur M.  Schlesinger Jr.  that Goldberg “never stopped talking about himself.” She called him “the biggest egomaniac of any man I’ve ever seen in my life.”

She said of Goldberg in another part of the interview, “I just think it’s such a shame to be so pleased with yourself.”

Her husband’s treatment by the Dallas Morning News, which ran a full-page ad the day of the assassination saying Kennedy was soft on communism, was still an open wound for Jackie, and she tied that into her feelings about Goldberg. Jackie recalled that Goldberg voted with the court in a case “where you can write anything about people in public office.”

She continued elsewhere in the interview, “And I thought, that’s right after that ad of the day in Dallas—‘Wanted for Treason.’ And there you, his appointee, go and say that everything, even this, is all right? But it’s because the Supreme Court is so isolated. They’re never affected by newspapers, anything.”

She added, “When you think, ads like that in the paper was partly what killed Jack. They get so detached from life up in the Supreme Court.”

She was referring to New York Times v. Sullivan, the 1964 case where a unanimous court established the “actual malice” standard in defamation cases involving public figures.

In addition to the ad in the Dallas Morning News the day of the assassination, a “Wanted for Treason” leaflet with the president’s picture was distributed in Dallas that day.

Schlesinger also asked Jackie about Justice William O. Douglas, whom he suggested was a “great friend” of the president. Jackie corrected him, allowing that Douglas was a friend of the president’s father and his brother, then-Attorney General Robert F. Kennedy. “We never really saw Bill Douglas much, but I think he liked him.”

Unwilling to let go of the line of questioning, Schlesinger asked if Douglas came around the White House. “Never ,” Jackie replied, adding that “none of those people,” came to the White House, presumably referring to the other justices.

As has been reported, Jackie called Martin Luther King a “phony,” and “a tricky person” because of his dalliances outside his marriage.

The remarks should be viewed in the context of what Jackie had been told about King. Not long before the interview,  Jackie was told that King made jokes about the president’s funeral while he was watching it on TV and ridiculed Cardinal Richard Cushing, the archbishop of Boston who married the Kennedys and celebrated his funeral mass.  That information came from FBI Director J. Edgar Hoover, who had a well-known vendetta against King. Former Atlanta Mayor Andrew Young, an aide to King, told Fox 5 last week that King admired the president and that Hoover fabricated the information. A footnote in the book refers to an FBI tape of King’s purported remarks.

Jackie and Robert Kennedy later attended King’s funeral in Atlanta and Jackie also said in the interview  that her husband “never really said anything against Martin Luther King.” The president “said what an incredible speaker he was during that freedom march thing,” and didn’t pass judgment on the reports he was receiving from Hoover on King’s personal life.

Caroline Kennedy,  who gave  permission for her mother’s interviews to be  released,  cautions in the forward to the book that her mother gave the interviews—one of only three times she spoke to a journalist about her White House years—when she “was a young widow in the extreme stages of grief. The interviews were conducted just four months after she had lost her husband, her home, and her sense of purpose. She had two young children to raise alone. It isn’t surprising that there are some statements she would later have considered too personal, and others too harsh.”

Though she was often the subject of press reports and gossip rags, Jackie, who died in 1994, guarded her privacy and never wrote a memoir.  She gave these interviews in 1964 on the condition that they be locked in a vault during her lifetime. The book, “Jacqueline Kennedy, Historic conversations on life with John F. Kennedy,” is accompanied by CDs of the entire interview with Schlesinger, a Kennedy aide and one-time Harvard history professor. Schlesinger, who died in 2007, won the Pulitzer Prize for his history of the Kennedy presidency, “A Thousand Days.”

The U.S. Supreme Court likely won’t rule on the constitutionality of the 2010 federal health care overhaul  until after the 2012 presidential election, Emory University School of Law’s Robert Schapiro writes in an essay on SCOTUSblog.

Schapiro says that based on the way the federal courts of appeal have handled challenges to the health care law so far, it’s unlikely the Supreme Court will face an injunction barring implementation of the new law. His assessment includes his read on the arguments heard in June by Chief Judge Joel F. Dubina and Judges Frank M. Hull and Stanley Marcus at the 11^th U.S. Circuit Court of Appeals. That court is reviewing a decision by Senior U.S. District Judge Roger Vinson of Pensacola, who stayed his own ruling that declared the entire statute invalid.

Schapiro, who is serving as Emory  Law’s interim dean, recounts the 6^th Circuit’s rejection of a challenge to the law, delivered last month by none other than Judge Jeffrey Sutton, an appointee of President George W. Bush with, as Schapiro puts it, “impeccable conservative credentials.” He explains that Sutton rejects what Schapiro says would be a new category of the sort of thing Congress may not touch with its commerce clause power—“inactivity,” i.e., individual decisions not to obtain health insurance. Then he gives his impressions of the 11^th Circuit argument:

The oral argument in the United States Court of Appeals for the Eleventh Circuit suggested that a majority of that panel, as well, was not inclined to recognize the new category.  Judge Frank Hull rejected the proposed activity/inactivity distinction as unhelpful.  Judge Stanley Marcus emphasized due process, rather than the Commerce Clause, as the proper framework for addressing intrusions on individual liberty.  Predictions based on oral arguments are always hazardous, but the Fourth Circuit panel also seemed sympathetic to the defense of the Act.

In view of the Sixth Circuit’s ruling and the tenor of the other appellate arguments, it appears unlikely that the Court will confront an injunction restraining the implementation of the Affordable Care Act.  The Supreme Court eventually will want to provide a definitive ruling on such a significant piece of legislation with such a broad impact.  However, without a decision striking down the law, much less a split in the circuits, the Court can wait until after the elections to decide the issue.

Interested readers also can find on SCOTUSblog an essay by Northwestern University School of Law Professor Stephen B. Presser arguing that, like the district courts that have considered the health care law, the circuit courts are likely to split on the matter.

A federal judge in Atlanta – following the dictates of a 2010 ruling by the U.S. Supreme Court – has declined to award enhanced legal fees to attorneys who forced major changes in Georgia’s crisis-ridden foster care system.

In an order handed down late Tuesday afternoon, U.S. Senior District Judge Marvin H. Shoob denied a request seeking $5.8 million in legal fee enhancements by lawyers at Children’s Rights, a New York based child advocacy group, and Atlanta’s Bondurant, Mixson & Elmore. The non-profit organization and the firm  represented a class of more than 3,000 foster children in Georgia in a suit against the state to institute reforms of a system they said regularly exposed children to physical abuse, held them in dangerous, unsanitary and dilapidated shelters, placed them in the care of criminals and deprived them of essential medical care. Read more »

Yesterday’s decision by a panel of the 6^th U.S. Circuit Court of Appeals has been described as a major setback for legal challenges to the 2010 federal health care overall, which include a lawsuit heard in Atlanta earlier this month by an 11^th Circuit panel. A major reason it’s a bad omen for opponents of the law is that the 6^th Circuit’s rejection of the challenge was delivered by none other than Judge Jeffrey Sutton, a conservative appointee of George W. Bush.

Sutton isn’t just any Republican appointee. As solicitor general for Ohio in the 1990s, Sutton was the prototypical appellate advocate for holding the line against federal government encroachments into the purview of states. And he’s a former law clerk to Justice Antonin Scalia, an icon among conservatives. Read more »

Lois Curtis, a Georgia woman whose efforts led to a landmark U.S. Supreme Court decision for the rights of mentally disabled persons, celebrated the ruling’s 12^th anniversary with a White House visit last week. Her lawyer, Atlanta Legal Aid’s Susan C. Jamieson, recounted on a White House blog Curtis’ journey from living in a state psychiatric hospital to renting a house in the Stone Mountain area—and sharing her artwork with an American president.

Jamieson recalls that, as they climbed the court steps 12 years ago, the lawyers were nervous about what the U.S. Supreme Court might do with the case. But she said Curtis, on an exciting trip with her supporters rather than in a state hospital, was caught up in the “freedom and adventure” of the day. “In fact, she insisted on a tour of the White House that day, asking if there was a chance she might see the President,” writes Jamieson. Read more »

A recent Daily Report profile of newly minted federal judge Steve C. Jones provoked a lot of talk about Jones’ pet goats. Jones declined to reveal their names other than to say that he had named them after judges, and that they were named “out of respect.”

At Jones’ investiture Thursday, Superior Court Chief Judge Lawton Stephens — one of Jones’ friends and longtime colleagues on the Western Circuit Superior Court bench in Athens – outed the names of Jones’ goats. Read more »

The U.S. Supreme Court today ruled that families cannot sue vaccine manufacturers over injuries caused by alleged defective designs of childhood vaccines—a ruling at odds with a 2008 decision by the Georgia Supreme Court.

The decision is a blow to parents who claim their children have suffered injuries—such as autism—as a result of standard childhood immunizations. Today’s ruling relegates at least the design-defect type of claims to the so-called federal vaccine court, a special compensation system set up by a 1986 federal statute that is supposed to be no-fault but caps recovery amounts and has been criticized as unfair to plaintiffs.  Read more »

SCOTUSBlog’s Lyle Denniston says it’s “far from clear” to which court Troy Davis’ next appeal should be directed.

In August, U.S. District Judge William T. Moore Jr. of Savannah ruled against Davis’ claims that he is innocent of the 1989 murder for which he’s been sentenced to death.  The decision came nearly a year after the U.S. Supreme Court ordered the judge to review what Davis’ supporters say is evidence showing that Davis did not murder Savannah police officer Mark Allen MacPhail.

On Sept. 23, Davis’ lawyer filed alternative notices of appeal—one to the 11^th U.S. Circuit Court of Appeals and one to the U.S. Supreme Court. Moore on Oct. 8 denied Davis a certificate of appealability to the 11^th Circuit, saying any review of his August ruling should be conducted by the Supreme Court, not an intermediate appellate court.

Read more from SCOTUSBlog »

This story in The New York Times reports how Stephen Wermeil, who from 1992 until 1998 taught constitutional law and media law at Georgia State’s law school, has finished his biography of Justice William Brennan.

As a reporter with The Wall Street Journal, Wermeil gained extraordinary access to Brennan in 1986 and was expected to publish the book in the years after Brennan retired in 1990. Read more »