NINOMANIA
:: 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 ::
:: 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 M. Wagner 2:16 PM [+] ::
...
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 M. Wagner 2:16 PM [+] ::
...
