:: welcome to


:: 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 ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Wednesday, May 23, 2012 ::
    "Mr. Chief Justice and may it please the Court: boogie woogie woogie. I see my time is up."

    My colleague Jay Sekulow will be on Fox today at 1:15 discussing the threat strategy some believe is currently being deployed against Chief Justice Roberts in regard to the Obamacare cases. The facts have been piling up for a while; the take-off point for the discussion is a column in The Washington Post by Kathleen Parker.

    Now, Parker, said to be a conservative, has not always been my favorite: when she was produced in evidence against Sarah Palin in the 2008 campaign as a "leading conservative," I had never heard of her, and I flatter myself that I am at least moderately informed of who's who in the conservative world -- leading me to suspect that the fastest way to be labeled a "leading conservative" by the MSM is to (1) call oneself a conservative, and then (2) attack a conservative icon at a crucial moment. But all is forgiven today.

    Now, the campaign against the Chief that Parker describes is tosh on several levels. For one things, it is entirely possible to find Obamacare unconstitutional without disturbing precedents such as Jones & Laughlin or Wickard. I myself think Wickard should be overruled at the earliest opportunity, and Jones & Laughlin, Darby, and the rest should be given the squint-eye. But just as Wickard was a Bridge Too Far even after other New Deal precedents, since it added the "aggregation" principle to the "substantial effects" principle, so upholding Obamacare would be yet another Bridge Too Far, as it would allow regulation of economic inactivity under the Commerce Clause, a step even Wickard did not take. Roberts and the entire Court know all this (though some Justices will be happy to take that step).

    But those mounting the threat campaign against the Chief seem to think their real power lies in their power to shape his historical reputation. Thus, they are banking on: (1) his insecurity. But he does not seem to me to have any, and certainly does not have a basis for any. He's lost The New Yorker? Ooo! Scareeeee! Which brings us to: (2) Their own power. Yep: Jeffrey Rosen will write all the history books. Yes, he and his ilk will write some; so will Randy Barnett, Jon Adler, and a host of others. Historical reputation among Justices is variable. Justice Frankfurter used to be beau ideal of a Justice, but much of his jurisprudence bears a close resemblance to Justice Scalia's: praising him would distract from the project of making Scalia seem an isolated crank, so, into eclipse he goes. Meanwhile, facts have caught up to Justice Douglas: once the social justice crusader so fearless not even law could get in his way, now he's "Wild Bill." Writing decisions with an eye on the history books is a mug's game. (Oh, sorry, Justice Kennedy - nothing personal.)

    :: David M. Wagner 11:30 AM [+] ::
    :: Saturday, May 12, 2012 ::
    White House Enemies List, 2012-style

    :: David M. Wagner 6:33 PM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?