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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 conservative "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 on 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 jurisdiction 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 M. Wagner 4:07 PM [+] ::
    :: 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 M. Wagner 4:58 PM [+] ::
    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 M. Wagner 1:02 PM [+] ::
    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 M. Wagner 12:51 PM [+] ::
    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 M. Wagner 11:18 AM [+] ::
    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 M. Wagner 10:33 AM [+] ::
    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 M. Wagner 10:31 AM [+] ::
    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 M. Wagner 10:19 AM [+] ::
    I was wrong on only one point: the renegade was Roberts, not Kennedy.

    :: David M. Wagner 10:16 AM [+] ::

    :: David M. Wagner 10:14 AM [+] ::
    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 M. Wagner 10:14 AM [+] ::
    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 M. Wagner 10:12 AM [+] ::
    Taking Scotusblog a long time to parse, which is NOT good. Just like Casey. As I said.

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

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

    :: David M. Wagner 10:09 AM [+] ::
    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 M. Wagner 10:06 AM [+] ::
    Kennedy delivers Alvarez (Stolen Valor Act) opinion. More likely that Scalia or Roberts will deliver Healthcare?

    :: David M. Wagner 10:03 AM [+] ::
    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 M. Wagner 9:55 AM [+] ::
    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

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

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

    Azucena's murder conv commuted to "adequate provocation" manslaughter & sentence reduced to "time sung"  
    8-1, overturns DH rule. Breyer dissents based on hypo that Scalia, concurring separately, calls "mondo bizarro." 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."

    Chicken v. Egg set for reargument next term

    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.

    :: David M. Wagner 9:30 AM [+] ::
    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 M. Wagner 9:17 AM [+] ::
    :: 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 [+] ::
    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 M. Wagner 12:21 PM [+] ::
    :: Monday, June 25, 2012 ::
    Obamacare decision on Thursday, it seems. Was going to say "it appears," but that sounded a bit Lovecraftian, given my experience with Supreme Court very-very-end-of-year copy-dumps.

    :: David M. Wagner 10:43 AM [+] ::
    Bahahaha! Amy Howe: "To answer another question, yes, Paul Clement argued on behalf of Arizona in the case, against Solicitor General Don Verrilli. In general, if you don't know who argued a case, Paul Clement is always a good guess"

    :: David M. Wagner 10:33 AM [+] ::
    Apparently STILL NO HEALTHCARE DECISION TODAY. Arizona immigration law decision is out. Acc. to Amy Howe at Scotublog, Court, per Kennedy, hold that "it was improper for the lower courts to enjoin Section 2(B), which requires police officers to check the legal status of anyone arrested for any crime before they can be released." Sounds reasonable. The parts of these state immigration statutes that frost my shorts are the ones that command different treatment for arrestees (or Terry-stopees, or traffic-stopee) who "look illegal" (tho' the statutes never make it that obvious). As Amy notes, those issues were not before the Court in this case.

    :: David M. Wagner 10:22 AM [+] ::
    Montana case defying Citizens United summarily reversed per curiam; Breyer dissents.

    :: David M. Wagner 10:13 AM [+] ::
    Juvenile sentencing case. A majority (I'm guessing Kennedy + "liberals") remains convinced the 8th Am contains a proportionality requirement. A position more attractive than convincing. Justice Alito is cheesed off: reading his dissent from the bench.

    :: David M. Wagner 10:07 AM [+] ::
    Citizens United majorly lives. Montana challenge summarily reversed.

    :: David M. Wagner 10:04 AM [+] ::
    Welcome. If you're here, you're probably not here,  b/c you're watching the live feed at Scotusblog. Which is fine, but just a reminder: as the Becket Fund has reminded us, it would take the striking down of all of Obamacare (unlikely imo) in order to moot out the case against the HHS mandate. That said, the striking down of the individual mandate, if that is what happens (don't bet on anything), would be an important strike for enumerated powers and (so to put it) a non-unlimited federal government, meaning, a federal government with inherent limits in addition to those specified in the Bill of Rights.

    :: David M. Wagner 10:01 AM [+] ::
    :: Thursday, June 21, 2012 ::
    Knox v. SEIU -- another Alito opinion for the Court. He is totes not writing the Obamacare decision!

    :: David M. Wagner 10:09 AM [+] ::
    Southern Union. Another crim pro case that scrambles the supposed ideological lines. Sotomayor for the Court, Scalia in majority, dissent by Breyer, joined by Kennedy and Alito. H/t Scotusblog, of course.

    :: David M. Wagner 10:05 AM [+] ::
    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 [+] ::
    :: Wednesday, June 20, 2012 ::
    Scalia and Wickard

    We may get the Obamacare decision tomorrow (though it may be delayed until as late as June 28), so I thought I'd put down a canard that is getting around.

    Justice Scalia, together with frequent co-author Bryan Garner, has just released a new book, this one on interpretation of legal texts. In this book Our Hero writes that Wickard v. Filburn "expanded the Commerce Clause beyond all reason[.]" This has set off a flurry of speculation that he is ready, not only to strike down Obamacare in its entirety, but to go further than he has yet gone in striking down federal legislation based on expansive readings of the Commerce Clause.

    One such speculator is health-care policy analyst Avik Roy, writing in Forbes. We have Mr. Roy's assurance that "Wickard remains "remains the core justification for 70 years of federal intrusion into the activities of individuals and localities" and that

    Scalia's criticism of Wickard in his new book is surprising because Scalia’s concurrence in Gonzales v. Raich, the most recent major Commerce Clause case, is justly seen as an endorsement of Wickard. “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce,” he wrote in that 2005 case. 

    Well, Mr. Roy is not a lawyer. Time out for a reminiscence. My own interest in the public-policy implications of constitutional law long antedates my own entry into law school. With due regard for certain scholars who have influenced legal thinking without law degrees (Terry Eastland, Walter Olson, Christopher Wolfe), these are rare, and usually, like Prof. Wolfe, in Poli.Sci. departments. As for me, hearing the views of other scholars dismissed on the grounds that Prof. So-and-so "is not a lawyer" - and I heard this a lot in my DOJ days - was a significant factor in my own decision. In fact, some of the friends who, when asked directly, encouraged me not to go to law school had themselves initiated and solidified that intention with their own "Prof. A. isn't a lawyer" put-downs.

    So you will permit me to repeat -- I have, after all, been preparing for it for some time -- that Mr. Roy is not a lawyer. There are therefore certain nuances that he may miss, even with his expertise in medical policy. One is that Wickard is not, in fact, "the core justification for 70 years of federal intrusion into the activities of individuals and localities." Many such intrusions could get by perfectly well relying on NLRB v. Jones & Laughlin and U.S. v. Darby, without needing Wickard. And if Wickard were overruled but Jones & Laughlin and Darby were not, we would still have a very broad Commerce Clause -- possibly broad enough to allow Obamacare in its entirety.

    Another easily missed nuance is that there is no necessary connection -- indeed, there is frequently a sharp disjunction -- between what a Justice says in off-the-bench speeches and writings, and what he says in his capacity as a Justice. "Commentator" and "Justice" are two different roles, and there is no need for perfect consistency between them. In the specific case of Scalia, he is more respectful of precedent on the Court than off it. Not even in his Raich concurrence (with which I disagree, for the record: I think the O'Connor and Thomas dissents in that case both scored well) did he argue that Wickard was well-reasoned: only that it was the law, part of the corpus of precedents that the Court either has to follow, distinguish, or overrule; and that, under it, the Necessary and Proper Clause solves the case. (O'Connor. as I understand her, would distinguish Wickard; Thomas would certainly overrule it.)

    So if Mr. Roy or anyone else is expecting Florida v. HHS (the name the Obamacare case has taken on) to feature, even in a concurring or dissenting capacity, a Scalia opinion calling for the overruling of Wickard, I would advise them to adjust their expectations.

    Mr. Roy also sees tea leaves in a speech given last Friday by Justice Ginsburg to the American Constitution Society (the organization that in effect says to the Federalist Society: "No, you're wrong, there isn't any liberal bias at law schools, so along comes us to provide one") in which she talked up the value of dissents (quite rightly imo). and then, according to Mr. Roy:

    Most tellingly, she touched upon the key question that I believe the Court is still working through: what to do with the law if the individual mandate is indeed found to be unconstitutional.
    Well we don't have direct quote there; it would be quite extraordinary if a Justice said in public "Here's where we're at in our historically private and closely guarded deliberations, see...." Yet no one should be surprised that a "compromise" such as striking down the individual mandate but leaving the rest of the bill standing has inherent split-the-difference appeal for Justice Kennedy, who, for all we know, like Powell in Bakke, or the three-Justice "controlling opinion" in Casey, may be working on an opinion that only he and one or two others agrees with down the line, with separate majorities supporting different parts* -- though I believe the present Chief will do everything possible to prevent a fragmentation as radical as that and to make sure there is an "opinion of the Court."

    *Recall how in yesterday's Williams v. Illinois, Justice Kagan, dissenting on behalf of truth, justice, and the American way, and joined by Scalia as well as Ginsburg and Sotomayor, noted that there were in fact five votes against the legal reasoning of the "plurality," and so the "plurality" gets to be the "plurality" only because there were five votes for the outcome.

    :: David M. Wagner 4:07 PM [+] ::
    :: Monday, June 18, 2012 ::
    Kagamania: the lady's loaded for bear!

    What was that I read some weeks ago about Kagan going hunting with Scalia? And it was, you know, totally with, not for? Well, it would appear from her dissent in Williams v. Illinois (in which Scalia joins, along with Ginsburg and Sotomayor) that she's learned to go after big game:

    In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.
    That creates five votes to approve the admission of the Cellmark report [on the defendant's DNA; the accuracy of this report was not testified to in court by any witness with knowledge thereof -ed.], but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. JUSTICE THOMAS’s concurrence, though positing an altogether different approach [i.e. a narrow view of what makes hearsay "testimonial' -ed.], suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision. 

    The decisions she refers to lead off with Crawford v. Washington; a teaser for my article on that case, with full cite, is here.

    :: David M. Wagner 3:56 PM [+] ::
    The Williams v. Illinois plurality opinion could be subtitled "Trial Judges Never Get Confused." That's certainly an assumption it makes. And it's true, right? Can I get an amen, litigators? Well? *crickets*

    :: David M. Wagner 3:38 PM [+] ::
    So if I'm reading Williams v. Illinois right so far (and I haven't finished it), it seems persons with otherwise-inadmissible evidence useful to the prosecution can get it in by mentioning it to an expert who is going to testify for the state -- casual-like, so as not be "testimonial," see Thomas concurrence -- and this will be enought to get around both the hearsay rule and the Confrontation Clause. Does the outcome change if facts show prosecutors colluded with this discrete indiscretion? Will it ever be possible to show that, even when it happens?

    :: David M. Wagner 10:37 AM [+] ::
    Williams v. Illinois: bad Confrontation Clause result, but not a major setback: plurality only. Alito writes for plurality. Dissenting coalition: Kagan writes, joined by Justices Scalia, Ginsburg, and Sotomayor. Love me some NACDL and some Innocence Project.

    :: David M. Wagner 10:14 AM [+] ::
    Watching Court opinion delivery via Scotusblog this morning.

    :: David M. Wagner 10:07 AM [+] ::

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