After going back and forth for a year I ended up being somewhat more pessimistic than a lot of liberal observers before the argument, so I perhaps wasn’t as shaken as they were. (I agree with Jon Cohn did the oral argument did not at all make it clear that Kennedy will vote to strike […]
Tag: Supreme Court
Paul Clement is so good that he started his argument today with a devastating rebuttal of his own argument that the mandate is unconstitutional: If the individual mandate is unconstitutional, then the
While I’m waiting for my other piece on yesterday’s argument, since it’s relevant again I thought I’d dip into my nostalgia file and link to my piece about why the slippery slo
Some thoughts about day 2. The key to Kennedy’s vote, evidently, is whether he can be convinced that there’s a limiting principle. Kennedy, unlike the other conservatives, does seem to understand that the health care market is different: But I think it is true that if most questions in life are matters of degree, in […]
Much more later about today’s argument, but I’d like to address this particular slippery slope hypothetical from Scalia, responding to the government’s argument about the necessity o
Since I was skeptical about whether the Court was seriously considering using a jurisdictional ruling to dodge the constitutional issue ex ante, the oral arguments yesterday certainly did nothing to d
The hot argument based on today’s argument is likely to be the idea that the Supreme Court will just duck the question of the ACA’s constitutionality using a jurisdictional dodge. It’s possible, but I actually don’t think it’s very likely. How I read history differently is that I see the courts ducking cases where a […]
I have a piece on the latest “sovereign immunity” atrocity up. One additional note: in a footnote, Ginsburg reiterated (correctly) that Congress should be able to abrogate “sovereign
As I wrote about at some length during the dark ages of the blog, I think the evidence that William Rehnquist’s infamous memo urging Robert Jackson to uphold Plessy represented his own views was
Say it, Justice Ginsburg. Much more on this travesty imminently. The short version is that Supreme Court has joined the War on Women by combining a “federalist” doctrine that is embarrassing nonsense even by Rehnquist/Roberts Court standards with a denial of Congress’s explicit powers to enforce the Fourteenth Amendment unless it meets some unintelligibly arbitrary […]
I’m still waiting for my copy of Dale Carpenter’s book, but Dahlia Lithwick’s review is a beautifully written and important piece in its own right. Lithwick’s piece focus
I would like to buck the conventional wisdom, but I agree with everybody that the grant of cert in Fisher v. UT Austin is almost certainly the end of affirmative action in higher education. Certainly,