:: Ninomania ::

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:: Monday, April 08, 2013 ::

Mrs. Thatcher



Many British columnists writing about today's sad news -- the death of Mrs. Thatcher (she was of course "Baroness" or "Lady" Thatcher, but she was "Mrs." during the meat of her political career, plus, I think her irreducible Mrs.-iness was part of her identity for her fans, so "Mrs." it shall be) -- many are a tad younger than me, and so they speak of her in terms of "growing up under" her government. My memories, instead, reach back to growing up under the adolescent hope -- paralleled here by Reagan, of course -- that despite the uselessness of the Republican (US) and Conservative (UK) parties, leaders could be found who really believed that freedom principles could produce prosperity and therefore justice, that that such leaders and their principles could claim the leadership of their parties, win general elections (three, in Mrs. Thatcher's case), and achieve, not every reform we had imagined, but still, a change of direction beyond what many imagined possible. The heroic age. RIP.  


Janet Daley: Mrs. Thatcher was a "convictions politician" because she was an outsider, not part of the "club," and her being a woman was no small part of this.

Blairite Dan Hodges hopes the Left will behave itself. (It isn't.)

Benedict Brogan: "...Her passing risks reawakening painful memories of how a party rejected its most successful leader, and never reconciled itself to that act of treachery. But it also presents an opportunity to reflect on how she changed Britain for the better. She made modern Britain, and gives Tories a record of achievement to boast of. Above all, as we contemplate her remarkable legacy in the days and weeks ahead, Mr Cameron must hope that the country will be reminded that the facts of life are indeed Conservative."

AND

Mrs. Thatcher's Bruges Speech, which gave rises to the still-very-active Bruges Group 

Last PMQT (16 mins; gets confrontational around the 14 min point)

Five days earlier (but already after she had announced intention to resign), her "last stand against socialism," as YouTubers have opted to call it

:: David Wagner 12:07 PM [+] ::
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:: Monday, February 18, 2013 ::

This afternoon a 16-year-old girl will appear before a judge in Texas to ask if he would very kindly rule that she she cannot be forced to have an abortion that she does not want. To this, the "choice" principle has led us. I solicit your prayers that this girl be delivered from the atrocity that threatens her.

I am very proud that two Regent Law graduates, one of them a student of mine, are representing her.

:: David Wagner 11:37 AM [+] ::
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:: Tuesday, January 22, 2013 ::

Justice Scalia attended the Inauguration yesterday wearing a replica of St. Thomas More's hat, a gift to the Justice from the Thomas More Society of Richmond, Va.

More, of course, was a high-ranking lawyer in the administration of King Henry VIII who became a martyr due to his Catholicism and his opposition to his king's break with the ecclesial jurisdiction (not doctrine, technically - that came later, under Edward VI and Elizabeth) of the Catholic Church.

The hat also just happens to be a davoom combo with the black robe.

:: David Wagner 12:32 PM [+] ::
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:: Monday, December 31, 2012 ::

Seidman

Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof. Seidman thinks about the Constitution for a long time, and New Year's Eve (also, still, the thick of the grading season) is hardly the time to change ways.

I have not yet eulogized Judge Bork, other than on Facebook, for (perceived) lack of time to do justice to the subject, so to speak. After grades are in, I hope.

:: David Wagner 8:51 PM [+] ::
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:: Monday, December 10, 2012 ::

You know, if the Court ends up holding that proponents of Prop. 8 lack standing to defend it in federal court, then that nullifies both the 9th Circuit's and Judge Walker's rulings, as those rulings were rendered in "cases" without valid plaintiffs.

Federal standing law doesn't necessarily affect state courts, however, so the California Supreme Court's holding that Prop. 8 had effectively overruled its own earlier decision that the California Constitution enacted same sex marriage would then be the last judicial decision standing.

That means that Prop. 8 would be in a state of dormancy, ready to go back into effect whenever (if ever) a California administration decides to enforce it. That may be very unlikely to happen, but at least it means that the issue of same sex marriage, even in California, is once again in the political process, where some say it belongs.

Just saying.

:: David Wagner 3:34 PM [+] ::
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:: Friday, December 07, 2012 ::

The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing. That's a different issue in the two cases:

In Hollingsworth, the standing question is: do activists who have all along promoted and defended Prop. 8 (a much more specific and narrowly-injured set of parties than simply "backers" or "supporters") have standing to defend a state constitutional amendment when the state refuses to? If not, then any state could nullify the outcome of a referendum through simple non-enforcement.

In Windsor, the standing question is: does a group consisting of a large number of Congressmen, but which is obviously not itself Congress, have standing to challenge a decision holding a federal statute unconstitutional when the executive branch is of that opinion also?

The Court seems to be maximizing its options for disposing of these cases on standing. The result could be standing rules that restrict activist standing beyond anything Justice Scalia ever dreamed of, and an executive coordinate constitutional review power beyond anything Andy Jackson ever dreamed of. And that's if the gay interest wins on its standing issues. One presumes it would just as soon lose on those issues and take its chances on the merits. Or would one?

:: David Wagner 6:25 PM [+] ::
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:: Monday, November 26, 2012 ::

Obamacare may return to the Supreme Court via the Fourth Circuit: the Court has vacated its earlier dismissal of Liberty University's suit challenging the individual mandate and the abortion-provision mandate, and ordered the Fourth Circuit to hear arguments in it.

George Mason's Ilya Somin is not optimistic.

This is not the "origination clause" suit I've heard about. What's up with that one?

:: David Wagner 5:57 PM [+] ::
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:: Thursday, October 18, 2012 ::

2nd Cir. hold Sec. 3 of DOMA unconstitutional, using the catch-all of constitutional causes one doesn't know what else to do with -- intermediate scrutiny. Dissent would use rational basis test. Hoping to write more tomorrow.

:: David Wagner 3:07 PM [+] ::
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:: Thursday, September 20, 2012 ::

Very well, Ninomania's portal to the Posner v. Scalia fish-slap dance will be the one provided by Ed Whelan. Here you go.

:: David Wagner 10:34 AM [+] ::
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My post at CatholicismUSA on the Romney donor-dinner "47%" vid (known now, though not when I wrote this, to be incomplete, much like your basic James O'Keefe III vids, which at first this was  supposed to be totally unlike).

:: David Wagner 8:14 AM [+] ::
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:: Tuesday, July 03, 2012 ::

Who leaked?

It's still only speculation, but Time Magazine blogger Adam Sorensen offers here some good reasons to think it was not clerks who leaked details of the Obamacare case (NFIB v. Sebelius) deliberations to reporter Jan Crawford, but could only have been one (perhaps more) of the Justices themselves. And since AMK's role as last-ditch defender of the unconstitutionality of Obamacare, and his efforts to keep the Chief on-side, figure prominently in the leaks, well.... Also it was a (visibly angry, they say) AMK who read the dissent from the bench, despite its being a joint product with many Scalia touches.

Furthermore, it's hard to imagine any of the other three leaking. Scalia would fob a reporter off with a quip. Alito would act (and be) shy. Thomas, for all I know and as I may well guess, has his staff direct all press calls to a dedicated line with a rude message and a journo joke.

This is not the occasion to write about Justice Kennedy's previously-evidenced fondness for the media limelight -- because if the facts are as they are turning out, he acted in part because he was facing a mammoth attempt to outdo him in that regard. (And in part, b/c he was just plain right about the Constitution.)

As Time writer Sorensen notes: "We tried to talk him out of it, but President Obama and the liberal New York Times were just too powerful is not a narrative I imagine Roberts would endorse." Surely not, but that, and not "wise judicial statesman Roberts rises above partisanship," is going to be the narrative he gets. Say this much for AMK -- he shouldn't play the media, but at least when he does, he plays 'em right.

:: David Wagner 8:43 PM [+] ::
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:: Monday, July 02, 2012 ::

Good news, of a sort: I'm not right all the time. What a burden to set down. On May 23 I wrote that the campaign to make Roberts switch his vote by scaring him with threats of damage to his "historical reputation" and what-not -- this campaign was blisteringly obvious at the time -- wouldn't work.

Silly me.  And, once again, apologies to Justice Kennedy! 

Thanks to illegal and immoral leaks from judicial clerks (who else could the sources possibly be?), ace Supreme Court reporter Jan Crawford, the thinking man's Linda Greenhouse, has revealed that CJ Roberts changed his mind not at the last minute (as I erroneously speculated, tho' not without foundation), but earlier in the process; likely in early May, while working on what would have been a 5-4 opinion for the Court striking down Obamacare.

(In partial defense of my damaged claims to infallibility, I did write in my June 29 post, which was before Ms. Crawford's reporting: "In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its 'legitimacy' (whatever that means) in the elite press can actually change outcomes.")

Now we turn to Sen. Patrick Leahy, D-Vt., Chairman of the Judiciary Committee and indefatigable liberal activist. Sen. Leahy gave a speech on May 14 entirely targeted at the Chief. Not at Justice Kennedy, whom everyone thought would be the waverer if there were one, but exclusively at Roberts.

What did Leahy know, and when did he know it?

:: David Wagner 10:01 AM [+] ::
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The Wall Street Journal agrees with me -- and explains, better than I did or probably could, exactly why the taxing power discovered in the Obamacare opinion is novel and dangerous. Tag: I Hate Being Right All The Time

:: David Wagner 9:42 AM [+] ::
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:: Friday, June 29, 2012 ::

"It's not Marbury. It's a very naughty boy."

This must be the week the "Free Hallucinogens for Conservatives" part of the Affordable Care Act kicks in. So many of them have reported sightings of flying lizards, green elephants, diamond skies, silver linings in the Obamacare decision, and resemblances of it to Marbury v. Madison. Dudes, it's a bad comedown, and flashbacks do happen.

First, Marbury was a unanimous opinion, whereas Obamacare was partly 5-4, partly plurality only, and in its final form resulted (pretty obviously) from a change of mind by Chief Justice Roberts, possibly very late in the process. Whatever John Marshall was doing, he knew what he was doing.

Next. The basic "it's-Marbury" spiel is based on a now-standard, but also seriously incomplete, view of Marbury itself. According to this view, Marbury is less a judicial decision than a coup d'etat: with the judiciary being the only branch still in Federalist hands following the Jeffersonian sweep of the 1800 elections, Marshall (so the narrative goes) cleverly maximized its power, by "inventing" (less doped-up versions content themselves with "establishing") the power of judicial review, but doing so in a way that left President Jefferson with nothing to complain about. Jefferson could hardly- could he? - complain about a decision in which the Supreme Court held that it lacked the power to force him to hand over William Marbury's judicial commission. Even though the Court could only find this lack of power by holding unconstitutional an act of Congress that purported to give it that power.

Similarly, Chief Justice Roberts, yesterday morning, held (for a majority of the Court, since the "dissent" agreed with him on this point - in fact, it wrote an entirely separate analysis on it: mighty odd thing for a dissent to do an issue on which it doesn't disagree with the opinion it's dissenting from - but enough of that for now) that the individual mandate is beyond Congress's Commerce Clause powers, that Wickard v. Filburn is barely tolerable as an outlying precedent, and that the Court is certainly not going to extend it from marginal private economic activity (Wickard) to outright non-activity (this case).

But by going on to hold that the very same individual mandate is constitutional as a tax, so the argument goes, the Court left Obama unable to complain, just as Marshall left Jefferson unable to complain.

This is a valid parallel only if you see, in both cases, something the Court gained. In Marbury, the Court is said to have "gained" the power of judicial review. This is nonsense. Judicial review was a very familiar concept in Anglo-American jurisprudence, and in the U.S. Supreme Court particularly, even before Marbury. Its contours were highly restricted in England, with its emerging rule of parliamentary supremacy, but it was known. As for the U.S. Supreme Court, it had several times before Marbury considered constitutional challenges to acts of Congress, which is a very silly thing for a court to do if it has no power to issue the only conceivable remedy. The fact that Marbury was the first time the Court had ruled against the constitutionality of an act of Congress is a long way from the claim that the case "invented" the power to do so.

And what did the Court supposedly gain in the Obamacare decision? Every claim being made on that score is a claim based on the supposed benefits of giving in to intimidation. The narrative runs: the Court now knows how naughty it was to protect speech that liberals don't like in Citizens United, and it therefore knows it would have been grounded for a week if it had struck down government health care that liberals also like, so it just had to be good. Or rather, if the Scalia-Kennedy-Thomas-Alito boys wouldn't be good, Roberts had to be good and do what the grown-ups say or, you see, they'd all be punished. With what, I'm not sure, but liberal columnists like Jonathan Chait seem to understand these things.

In short, the Court got zilch, or worse - it got, as a fact on the ground, the principle that a campaign of threats against its "legitimacy" (whatever that means) in the elite press can actually change outcomes. I really didn't think it could. I was wrong. But to claim - especially for conservatives to claim - that the Court is the winner for being given thirty rather than forty lashes by Slate and MSNBC and New York Magazine is to signal that the "Constitution in exile," far from being on the verge of a return, may as well buy property in Fiji.

Another Marbury-Obamacare parallel asserted (this time by critics of both of the Chief Justices we are discussing) is that much of the discussion in their opinions was unnecessary dicta, and therefore, could only have been politically motivated. But as to both of them, the charge is unjust. In Marbury, Marshall's long exposition of how Jefferson had wronged Marbury may indeed have served to embarrass Jefferson, and was no doubt welcome on that score - but it also served to explain to the world why the decision's ultimate confrontation with the constitutionality with Sec. 13 of the Judiciary Act (the part that purported to give the Supreme Court the power to issue writs of mandamus in original jurisdiction cases) was necessary. The explanation of how the Court got to that point could have been shorter, but it could not (fairly) have been omitted. (see Robert Lowry Clinton, Marbury v. Madison and Judicial Review.)

Similarly, Chief Justice Roberts faced in the Obamarcare decision a case where the administration had placed all its eggs in the boat of the Commerce Clause (this is what gives rise to the critique that the Chief "re-wrote" the statute by affirming it on the basis of the Taxing Power). In order to bypass the constitutional clause that was the government's chief reliance, he had to explain why. The Ginsburg dissent (as the Chief explains) is simply wrong to assert that, in light of his eventual decision to affirm the statute on the basis of the Taxing Power, he could or should have bypassed any discussion of the Commerce Power. He had to explain why he was rejecting the more obvious basis for the statute, just as Marshall had to explain why he could not avoid facing the issue of whether or not the Constitution allowed Congress to give the Supreme Court the power to issue mandamus in original jurisdictin cases.

So yes, I've just explained a way in which the two cases are similar. But these are not the similarities that are being cited and held up for conservative applause. The latter have to do with clever political maneuvering. But Justices are not supposed to do political maneuvering, clever or otherwise. And, as political maneuvering goes, Roberts's Obamacare maneuver (if such it was: I'm not signing on to that view) was not clever, at least not for the Court. (It may yet prove clever for Romney, but that's really not what Justices are supposed to be concerned about. And in any case, the most intense Marbury cynics have never argued that Marshall was trying to get some Federalist politician elected President.)

:: David Wagner 4:07 PM [+] ::
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:: Thursday, June 28, 2012 ::

The mighty Ed Whelan has noticed it too.

He also takes on the question: who in fact wrote the "joint dissent"?  Ed first floats the view that the joint dissent was drafted as the Opinion of the Court, but then Roberts failed to find it persuasive, thus yanking its fifth vote. But OTOH, says Ed, why would the Chief not have assigned the Opinion of the Court to himself in the first place?

Well, I defer to Ed on the mechanics and politics of these things, but it is perfectly clear that large swaths of the joint dissent bear unmistakable stylistic signs of Scalia; and I don't mean only that last two pages - the only parts that actually look like a dissent from the controlling opinion. Yet I don't insist that Scalia wrote the whole thing: occasionally it sags, suggesting the work of other hands.

(Do I sound here like a Jacobean drama prof discussing whether a disputed Shakespeare play, like "Two Noble Kinsmen of Edward III That Ends Well" or something, may have had a co-author?)

Kennedy read out the bench version this morning; perhaps for this reason, NRO is running part of it under his by-line. Much honor to him to signing onto the whole thing. Why did he do the honors this morning? Maybe because "another Scalia dissent" would be too typical: showcasing support for the joint dissent's views from a perceived "moderate" has value. Or, perhaps to show solidarity despite some Scalia-Kennedy tangles in the past. Perhaps Kennedy originally had the assignment (from Roberts, to write for the Court), then courteously accepted some Scalia paragraphs.

I don't know. But two things are clear: 1. There's a lot of Scalia in it. 2. A "joint dissent" (as opposed to a dissent by Justice A, joined by Justices B, C, and D) is rare, if not unprecedented, so we're being signalled that this is a very unusual situation.

:: David Wagner 4:58 PM [+] ::
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Spooky. Whereas in Casey, the Rehnquist dissent bore telltale signs of having been written originally as the opinion of the Court, the joint dissent in the healthcare case reads as though it had never been and is not now anything else. What happened here?  (The entire opinion is now online.)

For one thing, the "dissent" does its own Commerce Clause analysis, despite the Roberts opinion have separetely done one and rejected the individual mandate on Commerce Clause grounds. The normal dissent procedure would be for the dissenters simply to note their agreement with the majority on those points on which they do in fact agree.

Oops -- looks like others agree! 

First paragraph of dissent:

Congress has set out to remedy the problem that the best health care is beyond the reach of many Americans who cannot afford it. It can assuredly do that, by exercising the powers accorded to it under the Constitution. The question in this case, however, is whether the complex structures and provisions of the Patient Protection andAffordable Care Act (Affordable Care Act or ACA) go be- yond those powers. We conclude that they do.

Is that the way you begin a major dissent in a major case?

And the first time the "dissent" responds to another opinion, it responds to that of Justice Ginsburg -- the actual dissent, now turned into a partial concurrence/partial dissent.

Ultimately the dissent is driven to saying that there is really no difference between action and inaction, ante, at 26, a proposition that has never recommended itself, neither to the law nor to common sense. [Scalia et al., slip op. at 13]

Quite right - but not they way you'd put it if you're writing the dissent!!  Page 16 of the slip opinion marks the first point at which the joint dissent stops referring to the Ginsburg dissent as simply "the dissent," and uses for the first time (footnotes aside) the term "Ginsburg dissent."

The "dissent" also discusses the it's-a-tax issue and the Medicaid funds withholding issue without once alluding to the existence of a separate controlling opinion out there that addresses both questions. (The passing reference to "Justice Roberts" on the "dissent"'s page 30 is to Justice Owen Roberts, author of U.S. v. Butler [1936]).

The "dissent"'s first acknowledgment of the existence of the controlling Roberts opinion, which is what it is supposedly dissenting from, occurs on page 46; that is, in Part IV(F). The first actual reply to anything in the controlling opinion ("Worse, the Government’s remedy, now adopted by the Court..") occurs on p. 48). Given Scalia's (not to diss the others') attention to workmanship, this suggests that the Big Switch, and the consequent need to revise the opinion to make it a dissent, occurred hours, not days, before this morning.

:: David Wagner 1:02 PM [+] ::
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I haven't posted in a couple of hours b/c I'm working on a promised op-ed about the healthcare decision. I pause to note that, while Kennedy did the honors of reading the dissent from the bench, it was not one Justice's dissent with three others joining: it's a joint dissent. This is rare, and clearly meant to highlight their dissatisfaction.

:: David Wagner 12:51 PM [+] ::
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Amy Howe (Scotusblog: 

"Yes, a commenter notes that the Chief Justice's opinion starts with a mini-civics lesson -- definitely an awareness that this is one for the ages. Reminded me of his opinion in Snyder v. Phelps, the funeral protesters' case last Term"

You know, HLS is one thing, but those Harvard undergrads really should sod off with their "civics lessons."

:: David Wagner 11:18 AM [+] ::
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My prediction about the outcome was basically right, but I was seriously wrong about, and unfair to, Justice Kennedy. Not only would he strike down the ACA in its entirety, he is raising his dissent to read-from-the-bench status.

:: David Wagner 10:33 AM [+] ::
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A small consolation is that a majority holds that the individual mandate would be unconstitutional under the Commerce Clause. This makes no practical difference for Obamacare, since they uphold it under the taxing power, but at least the "Wickard-but-no-further" principle stands, as do Lopez and U.S. v. Morrison.

:: David Wagner 10:31 AM [+] ::
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Of course, if Obamacare remains politically unpopular, this gives Romney and Republican House and Senate candidates a good issue; and if enough of them get elected, they can do some repeal-and-replace. No affirmance by the Supreme Court means the ACA is beyond legislative alteration.

And needless to add, the HHS Mandate lawsuits go forward. Their legal basis is solid.

:: David Wagner 10:19 AM [+] ::
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I was wrong on only one point: the renegade was Roberts, not Kennedy.

:: David Wagner 10:16 AM [+] ::
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:: David Wagner 10:14 AM [+] ::
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Tom Goldstein (Scotusblog):
"The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read"

:: David Wagner 10:14 AM [+] ::
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Scotusblog says: "CJ Roberts joins the left of the Court." Let's sleuth out all those leftist op-eds, now being deleted and shredded, denouncing him for "judicial activism."

:: David Wagner 10:12 AM [+] ::
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Taking Scotusblog a long time to parse, which is NOT good. Just like Casey. As I said.

:: David Wagner 10:10 AM [+] ::
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Not even clear yet who's writing, but sounds like Kennedy.

:: David Wagner 10:10 AM [+] ::
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Individual mandate okayed as a tax.

:: David Wagner 10:09 AM [+] ::
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Apparently Healthcare opinion is very thick (American sense). Could be due to multiple partial concurrences/partial dissents etc.  (Of course, may be thick in Brit sense too.)

:: David Wagner 10:06 AM [+] ::
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Kennedy delivers Alvarez (Stolen Valor Act) opinion. More likely that Scalia or Roberts will deliver Healthcare?

:: David Wagner 10:03 AM [+] ::
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Scotusblog dealing with rumors - unsubstantiated and unlikely, TBTG -- that Pres will attend Court session. That could actually raise separation of powers issues imo. Certainly if he were to claim a right to speak more than any other member of the audience -- i.e., none at all -- the Court would have to call sacuurrrity on him. "Ya see us judging? RUUUD."

:: David Wagner 9:55 AM [+] ::
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Last night, a good time was had by all with Twitter hashtag game #otherSCOTUSpredictions. Mine mostly had to do with opera. You might look them up while waiting.  --  Oh heck:

8-1, Radames's sentence commuted. Scalia dissents bc 8th Am does not have proportionality req + his Celeste was weak ‪#otherSCOTUSpredictions

Wotan may take Ring from Fafner non obst. Spearrunes bc novation under duress. 8-1. Scalia: stop f'ing w Ks & operas ‪#otherSCOTUSpredictions 

"Sposarla o pagarla" violates 14th Am rt to marry. Scalia dissents bc desp McDonald v Chi. he's not THAT happy w sdp ‪#otherSCOTUSpredictions

Azucena's murder conv commuted to "adequate provocation" manslaughter & sentence reduced to "time sung" ‪#otherSCOTUSpredictions 
 
8-1, overturns DH rule. Breyer dissents based on hypo that Scalia, concurring separately, calls "mondo bizarro." ‪#otherSCOTUSpredictions  (Angus Dwyer adds: @david_m_wagner real action is in 3rd footnote: dicta stating that a tie does not go to the runner (a position none of the litigants argued)

Chief announces: "Justice Kennedy has today's opinion, but first, the Court would like to do the Wave." ‪#otherSCOTUSpredictions

Chicken v. Egg set for reargument next term ‪#otherSCOTUSpredictions

And one by @dan_munz that I really liked: Scalia thought Roberts was writing it. Roberts thought Scalia was writing it. Everyone is totes embarrassed. ‪#otherSCOTUSpredictions

:: David Wagner 9:30 AM [+] ::
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At blogging station. Note: healthcare case is not the only one expected today. Quoting Tom Goldstein of Scotusblog, we also expect cases that will decide "whether Congress (1) can make it a crime to lie about a military honor, and (2) create a right to sue for someone who has not been personally injured."

:: David Wagner 9:17 AM [+] ::
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:: Tuesday, June 26, 2012 ::

Warning to conservatives: remember 1992.

At the end of the 1991-92 Court year, the last regular day for decisions brought Lee v. Weisman. The Court was widely expected to allow nonsectarian benedictions at high school graduations, and perhaps even overrule Lemon v. Kurtzman. Instead, Justice Kennedy, joining the Court's liberals, created a concept of "psychological coercion" to explain why benedictions at high school graduations are a prohibited "establishment of religion" because polite behavior by passive students might be construed as consent.

There was an angry dissent by Justice Scalia.

A few days later, stretching beyond the Court's normal term because of the controversial nature of the case, the Court finally delivered Planned Parenthood v. Casey. In this case most observers were sure - sure - the Court would overrule Roe v. Wade, or least scale it back to insignificance. Instead it reaffirmed it loudly, even while rewriting it and upholding several challenged abortion regulations. Planned Parenthood ran their previously designed and paid-for ads lamenting the decision (refocusing on the regulations upheld), and concealed for a few days, until it could no longer be denied, the breadth and depth of its victory.

And Scalia wrote an epic angry dissent, of tragic dimension.

Fast forward to 2012. On what should have been the last day for delivering decisions, the Court handed down the Arizona immigration law case - a decision by Kennedy joining the liberals, with an angry dissent by Scalia.  And now we're waiting for the really big decision of the year, as to which everyone is sure - sure - about the general drift of the outcome, and uncertain only about the extent.

Pardon me - I've seen this movie.

It's against the odds, but here's how I'm betting. Kennedy is writing the opinion, joined by the liberals. It will uphold the Affordable Care Act in its entirety, distinguishing Lopez and U.S. v. Morrison (that can't be done convincingly, but I think I could do it well enough for five members of the Court, on demand). Roberts is writing a measured dissent. There's an outside chance that Scalia will apply here his position in Raich, but, as I've explained (scroll down to June 20), this case is sufficiently different that this is unlikely, so I think he is working on his own dissent. An angry one, of course.

The only way the 1992-2012 parallel doesn't work is that while Lee v. Weisman was a surprise, and indicative of a liberal drift in Justice Kennedy's thinking that year (I'm told that one should completely discount the fact that Laurence Tribe protege Michael Dorf was clerking for him that year), the Arizona immigration case was a toss-up going in, and, unlike Weisman, the result gave both sides something to take home. OTOH, the Arizona decision is a strongly federal-supremacist. Of course, there is no pre-emption issue in Obamacare, but overall, Kennedy does not appear to be in a state-protecting, feds-curbing mood this year.

Now that you've read this post, it can only get better :)

:: David Wagner 2:16 PM [+] ::
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According to WaPo blogger Ezra Klein, it'll be The New York Times's fault if Obamacare is overturned: it granted space to the existence of legal arguments against it, thereby granting a "permission structure" (what you or I would call an endorsement) for the legitimacy of such arguments. A more effective freeze-out was expected from the paper of record.

:: David Wagner 12:21 PM [+] ::
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