Tag Archives: Law

For Federal Power, Does the Mechanism Matter?

If, come June, the Supreme Court decides to strike down ObamaCare’s individual mandate, they’ll accomplish something almost unique in the Court’s history, but not for the reason you think. We expect the Court to strike down unconstitutional laws; even conservatives agree with that proposition (for now). What we don’t often see is a Supreme Court willing to invalidate a […]

In Partial Defense of David Dow: Maybe Don’t Impeach the Five

On the Daily Beast, Professor David Dow — a brilliant man and storied advocate against the death penalty — argues that President Obama should consider impeaching Supreme Court justices, if the Court votes to invalidate the individual mandate. I respectfully disagree: for one, even if Thomas Jefferson considered the same, Jefferson was a bit of […]

The People as Limiting Principle

The Volokh Conspiracy notes Justice Breyer’s aspirational nod to the last, best limiting principle in constitutional law: And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and […]

ObamaCare: the Value of Narrative in Appellate Advocacy

Today begins oral argument in No. 11-398, U.S. Dep’t of Health & Human Services v. Florida, the “ObamaCare” case.  By most counts, this is a case Republicans should expect to lose, probably by a lot. The Supreme Court has never limited congressional power to regulate strictly economic conduct, not even at the high point of Chief Justice Rehnquist’s […]

Originalism and Judicial Restraint, Incompatible as Applied

Public Discourse prints a problematic defense of originalism as a mode of constitutional interpretation, occasioned by a recent book by Judge Wilkinson of the Fourth Circuit, who candidly admits to its shortcomings. Per Gregory Sullivan, originalism shares none of the subjectivity of competing constitutional ideologies, and so should be above reproach: Whereas Brennan, Ely, and Posner advance theories that inevitably […]

In Changing Social Norms, Narrative (and the Court’s Fragile Sensibilities) Matter

Consider this a follow-up to yesterday’s post on the culture of the legal academy. Last week’s New Yorker offers the true tale behind Lawrence v. Texas, the watershed Supreme Court case that made unconstitutional any state law targeting morality in the bedroom, and therefore inaugurated the modern gay rights movement. Per Dahlia Lithwick, and her reviewed author Dale […]

In Culture, the Legal Academy Leads — Antintellectualism Notwithstanding

The National Review spent last week expending an appropriate amount of mental energy on the things that really matter — like, is Obama a dangerous radical, because he knew black people? To the publication’s credit, David French answered in the negative, arguing, reasonably, that people change over time: “Law school Obama is not our president, and I’m not […]

Inferring from Aberration: How the Culture War Magnifies

Several point to an absurd incident out of Pennsylvania, where Judge Mark Martin recently acquitted a criminal defendant of assault because his victim, Ernie Perce, was dressed as a “zombie Mohammed,” thereby (apparently) provoking the assault. An excerpt from the trial transcript, as reported by another blog: Whenever it is very common, their language, when […]

In Limited Defense of Affirmative Action

Court watchers will note an odd, and unsettling development at One First St. — the Supreme Court yesterday accepted review of Fisher v. University of Texas, the first challenge to education-based affirmative action to reach the high court in a decade. As the Times notes, affirmative action in the college admissions context was never a permanent thing. […]

Obama and Antiochus: the Modern Persecution Complex

Michael Stokes Paulsen, reported in Ben Domenech’s Transom, attempts to draw a shaky parallel between a campaign of oppression carried out by the Hellenistic king Antiochus IV Ephiphanes on his Jewish subject, and the Obama administration’s mandate that church-affiliated organizations cover contraceptives as part of their employees’ health plans: The story does not have an especially […]