Supreme Court

Judge Posner’s hatchet job on Justice Scalia’s book

Featured image I have long admired Richard Posner, both as a jurist and a thinker. With the possible exception of Bill James, I can’t think of a writer of non-fiction whose work I have read more of. Posner’s latest published work is a review of »

On judicial restraint

Featured image Orin Kerr at the Volokh Conspiracy wonders whether, in the aftermath of the Supreme Court’s decision upholding Obamacare’s individual mandate, liberals and conservatives are about to swap positions on the proper role of the Supreme Court. For decades, Kerr notes, liberals have tend to view the power of judicial review as an unambiguously positive thing. If the exercise of that power entails striking down statutes, then good: it means that »

Posner’s complaint

Featured image I would say that NPR’s Nina Totenberg coaxed some provocative comments from Seventh Circuit Judge Richard Posner criticizing conservatives, but I don’t think Totenberg had to work too hard to elicit them. Posner freely offers them up and Totenberg is almost beside herself with giddiness. An audio clip is posted with Totengerg’s story at the link. Listen for yourself. Totenberg reports: Posner expressed admiration for President Ronald Reagan and the »

It was never a tax

Featured image Reading Chief Justice Roberts’s opinion for the Court upholding Obamacare last week, I was struck by what I thought was the cursory and half-hearted nature of Roberts’s analysis of the mandate (referred to as section 5000a below) as a tax. Indeed, Randy Barnett has described Roberts’s analysis as “transparently lame.” The “lame” nature of Roberts’s analysis siding with Obama on this point made me think, as others have speculated, that »

It Was Always a Tax

Featured image Yesterday I posted the rather pathetic video of White House Chief of Staff Jack Lew on Fox News Sunday, where Lew struggled to deny that the Obamacare mandate is a tax, and that the Supreme Court upheld it only as such. When confronted with footage of the administration’s lawyer telling the Court that the mandate is a tax, Lew acted as though he had never heard such a thing before. »

The Obamacare decision as the “Compromise of 2012″? – let’s hope not

Featured image Rumor has it that Chief Justice Roberts changed his vote in the Obamacare case. Even if he did, that leaves open the question of why. Most observers think he changed it for political reasons. For example Charles Lane compares Roberts’ decision to the Compromise of 1850 about which Roberts wrote as a student in an award winning history paper on Daniel Webster. But it is also possible that Roberts changed »

Speaking of Illegitimacy…

Featured image So, is the Supreme Court legitimate again? Evidently so, as those who fretted about the Court sliding into the abyss are happy with this particular 5-4 decision. But, as Glenn Reynolds reminds us, the real issue of legitimacy posed by Obamacare relates to the executive and legislative branches: With the focus on the Supreme Court’s opinion, it’s easy to forget the sleazy way that Obamacare was passed. But the Supreme »

Did deeming the individual mandate a tax promote the democratic process?

Featured image Chief Justice Roberts found the individual mandate in Obamacare constitutional because he concluded that the mandate could be considered a tax, and that Congress has the power to tax the decision not to purchase health insurance. As we have discussed, Roberts didn’t find that the mandate is most accurately viewed as a tax. Rather, he found that it is “fairly possible” to view it that way. The “fairly possible” test »

Mission accomplished, liberal law professors momentarily embarrassed

Featured image In a post below, Steve quotes law professor Randy Barnett as follows: We won. All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. I have enormous respect for Professor Barnett, and he deserves major credit for shaping and advocating the legal »

The Aftermath, Continued

Featured image Add strange bedfellows George Will and the Washington Post’s Ezra Klein (wasn’t he the young naïf who made that idiotic comment a while back about the Constitution being hard to understand because it was over 100 years old?) to the camp saying Roberts’ opinion is actually a conservative victory.  Says Will: Conservatives won a substantial victory on Thursday. The physics of American politics – actions provoking reactions – continues to »

Why did Roberts do it?

Featured image I wasn’t surprised that the challenge to the constitutionality of Obamacare didn’t command five votes at the Supreme Court. But it did surprise me that the hold-out, so to speak, was Chief Justice Roberts rather than Justice Kennedy. Why didn’t Roberts pull the trigger? Charles Krauthammer attributes his decision to the fact that, as Chief Justice, Roberts sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation »

Today’s Obamacare Decision: A Dissent (joined in part by Paul)

Featured image My view of today’s decision is somewhat different from that of most of my fellow conservatives. I found Chief Justice Roberts’ majority opinion quite persuasive, based on current law and the familiar principle that a statute should be interpreted, if at all possible, in a manner that makes it constitutional. The reality is that the Constitution imposes no practical limits on the power of the federal government (beyond any specific »

In big Supreme Court cases, it’s all about winning

Featured image A number of good conservative legal commentators have taken solace in the fact that the Supreme Court found that the Obamacare mandate cannot be upheld under the Commerce Clause. For example, Michael James Barton writes: The mandate is upheld as a tax, using the coercive — but not unlimited — power that Congress has always possessed. This is a distinction with a very big difference. Had Obamacare been upheld under »

A Defeat—But It’s Not Over, Or, Roberts’ Rules of Disorder

Featured image Finally back in Ashland, Ohio, after my turn this morning at Bill Bennett’s radio mic, which is always fun.  Dinner tonight with Mike Huckabee.  Wonder what will be on his mind? I wont’s sugarcoat this: today’s Supreme Court decision was a significant defeat for the cause of constitutionally limited government, made all the more galling by the fact that Justice Kennedy—the usual wobbler—was on board for striking down the whole »

How many fouls are basketball players allowed to commit?

Featured image We used to argue this question in law school. I took the position that NBA players were allowed to commit six fouls, and college players five. My argument was that, while you would pay a significant price for committing the sixth foul (or the fifth in college), namely having to sit out the rest of the game, the rules did not bar you from committing it. If you were on »

A message from “Law World” — What Chief Justice Roberts said about the individual mandate

Featured image Like Scott, I was skeptical that the Supreme Court would save us from Obamacare, although in light of the oral argument, I thought the chance of such “salvation” was close to 50 percent. In late April, at 15 to 20 person dinner organized by the Federalist Society, there was a show of hands of those who thought the Obamacare mandate would be upheld. My hand went up. I’m pretty sure »

Take this tax…

Featured image Has the Supreme Court ever served as a bulwark of constitutional liberty when the chips were down? Contrary to popular belief, and the Supreme Court’s own conception of itself, I think the answer is largely negative. There is a multitude of examples that supports the negative answer. Think of the Court’s First Amendment decision extending First Amendment protection to flag burning while (mostly) tying itself in knots on campaign finance »