If you’re Brad Joondeph of Santa Clara University School of Law, you start the ACA Litigation Blog, named for the Patient Protection and Affordable Care Act. His blog has become the go-to place for official documents, news updates and a smattering of analysis on the ballooning health care challenges. And it has raised his own and his law school’s profile in a positive and welcome way. In November, for example, he travels to the University of Richmond School of Law to participate in a symposium on the health care litigation.
Joondeph joined the law school faculty in 2000 and teaches constitutional and tax law. A graduate of Stanford University and Stanford Law School, he attended both schools with Principal Deputy Solicitor General Sri Srinivasan. The two men were moot court partners at Stanford and Joondepth is married to Srinivasan’s sister. He also was a law clerk to Justice Sandra Day O’Connor in the October 1999-2000 term.
Joondeph chatted with Supreme Court Insider recently about his reasons for starting the blog and his own fascination with the health care battle.
Insider: Health care law is not your specialty, so what drew you to this particular litigation?
Joondeph: I was interested in this litigation because in many respects I think it’s the most fascinating legal controversy that has developed since I’ve been following the law. One, the legislation is just so important as a matter of policy. Two, the constitutional questions themselves, completely independent of the policy consequences, are huge. Both the commerce and necessary and proper questions and Medicaid-spending clause question are fundamental issues as to how we understand federal government powers vis- à-vis the states. And three, it’s such a fascinating window into the intersection of ideology, partisan politics, and judicial behavior and how all the different actors are motivated by the law, politics and ideology. It has kind of got everything you want wrapped into one thing.
Insider: So why a blog?
Joondeph: Well, I’m sitting in a café and wanted to read what Florida wrote in its second amended complaint. I thought it would be useful to have a site with documents with ready access to everything I wanted. The principle objective was making original documents available and the most natural way was to have a blog. Once the blog was up, it also seemed natural to make a little commentary as to what was going on. It became clear through random communications that people were following it and I felt an obligation to keep it updated.
As law professors, one of our sort of existential questions we struggle with on a daily basis is, besides teaching, what are we doing that is useful to others?
Insider: And has the blog been the answer to that question?
Joondeph: The whole experience has shown me my academic platform gives me a way to be useful that I haven’t seen before — as someone who can bridge the divide between people interested in a legal issue but who don’t know the doctrine well enough or how things operate in lower courts. It’s not necessarily that I have any expertise in health care, but maybe this is something I can replicate in the future on different issues.
Insider: How has it raised your profile?
Joondeph: It’s definitely made me more visible personally. My visibility is not something I’ve ever really cared about. I do what I do because I love teaching. That’s been a byproduct. I think it matters more to the university than to me. Our media relations people say it’s great; they get a lot more media inquiries about me. I sort of chuckle and say, ‘It’s great for you.’ I see it as part of my service to the university. It’s never something that has driven me in terms of what I’m trying to accomplish.
Insider: If and when the Supreme Court agrees to hear the health care challenge, what happens to the blog?
Joondeph: I’ve always said once the Court grants cert, my usefulness is at an end because there are so many people who cover the Court more closely than I ever could. It remains to be seen. I’ll see what’s going on out there and if there is a way I can be helpful.
Insider: So what’s your best guess on the outcome in the Supreme Court?
Joondeph: I think after a lower court invalidates a federal statute, creates a circuit split and the United States asks for cert, no other stars could come into alignment to make this cert worthy. Obviously there is the question of what they’re going to do and I think it’s a tossup on what they do on the merits. One aspect– whether they might be interested in not reaching the merits by finding a jurisdictional basis to avoid the merits — they’re going to get a ton of pressure to reach the merits. If you read some of the briefs by the insurance industry, health plans and the Chamber of Commerce, they say, “We don’t so much care what you do, but you need to decide; we need an answer.”
When you’re talking about 20% of the economy, it creates a fair amount of pressure to get answer sooner rather than later.
Marcia Coyle can be contacted at email@example.com.