Tag Archives: Supreme Court

ObamaCare, and Continuing the Conversation

I like to think that some of you enjoy reading this site; to the extent that’s true, please accept my apologies for the prolonged hiatus. I’ve redesigned the site, and re-emphasized small posts, to make site management more sustainable with my new schedule, which includes new responsibilities at the new-ish job, and now a new […]

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 […]

Lochner’s Role in Framing the Individual Mandate

The Volokh Conspiracy and Wall Street Journal both take issue with President Obama’s clarification of yesterday’s remarks, in which he makes clear that he has no issue with judicial review writ large — only with any Supreme Court decision that would review economic legislation with something less than heavy deference. The Journal: The full name […]

Make This Election About the Court

With last week’s arguments safely behind us, President Obama has taken the first steps towards spinning the case, saying: Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law what was a strong majority of a Democratically elected Congress. I’d just remind conservative commentators […]

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 […]

That Said, Why Did Conventional Wisdom Fail?

Let’s assume that Tuesday’s argument on the individual mandate wasn’t what any reasonable proponent should’ve expected, and that the Justice’s questions are cause for alarm. Why was every serious legal academician wrong? Two reasons. First, this is a Supreme Court that’s defied convention again and again, making them the most “activist” and conservative Court in recent memory. Neither […]

ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate […]

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 […]