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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Thursday, June 21, 2012 ::
    Just a note before this morning's S.Ct. copy-dump. On Monday Justice Alito delivered two opinions (one of the Court, one plurality as to outcome); this diminishes the likelihood that he is writing Florida v. HHS (the Obamacare decision); but then, the Chief is probably writing it due to its national importance, just as then-CJ Rehnquist was working on the Casey opinion before Justice Kennedy changed its outcome. (Follow the link if you like: dissenters do not use "we.")

    The fact that Scalia let Kagan do the honors in the William dissent suggests that he himself is busy with an opinion of a different kind: possibly the Court's opinion in Florida v. HHS, more likely a scathing concurrence critiquing the majority for not going further. If so, I doubt this is because he is a sudden convert to Thomas's view that every Commerce Clause since Jones & Laughlin should be revisited, but rather because Obamacare could within reason be found to go beyond the New Deal precedents. Anyway, the Confrontation Clause is Scalia's garden project, as well it should be, and his ceding the dissent to Kagan in the Williams case provokes remark. Perhaps he wanted Confrontation Clause fidelity to be associated with someone besides himself, and a new member of the Court at that. Perhaps he simply knew she would do a great job with it, as she did. But it's comment-worth in any case.

    :: David M. Wagner 10:03 AM [+] ::
    ...

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