Seidman

Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof.

You know, if the Court ends up holding that proponents of Prop. 8 lack standing to defend it in federal court, then that nullifies both the 9th Circuit's and Judge Walker's rulings, as those rulings were rendered in "cases" without valid plaintiffs.

Federal standing law doesn't necessarily affect state courts, however, so the California Supreme Court's holding that Prop. 8 had effectively

The Supreme Court has granted cert in the two closely-watch "gay rights" cases: the Prop. 8 same-sex marriage case, now called Hollingsworth v. Perry, and the only DOMA case to have yielded Court of Appeals decision thus far, U.S. v. Windsor. Note that in both cases, the Court directed the parties to brief the issue of standing. That's a different issue in the two cases:

In Hollingsworth, the

Obamacare may return to the Supreme Court via the Fourth Circuit: the Court has vacated its earlier dismissal of Liberty University's suit challenging the individual mandate and the abortion-provision mandate, and ordered the Fourth Circuit to hear arguments in it.

George Mason's Ilya Somin is not optimistic.

This is not the "origination clause" suit I've heard about. What's up with that one?

2nd Cir. hold Sec. 3 of DOMA unconstitutional, using the catch-all of constitutional causes one doesn't know what else to do with -- intermediate scrutiny. Dissent would use rational basis test. Hoping to write more tomorrow.

Very well, Ninomania's portal to the Posner v. Scalia fish-slap dance will be the one provided by Ed Whelan. Here you go.

My post at CatholicismUSA on the Romney donor-dinner "47%" vid (known now, though not when I wrote this, to be incomplete, much like your basic James O'Keefe III vids, which at first this was  supposed to be totally unlike).

Who leaked?

Who leaked?

It's still only speculation, but Time Magazine blogger Adam Sorensen offers here some good reasons to think it was not clerks who leaked details of the Obamacare case (NFIB v. Sebelius) deliberations to reporter Jan Crawford, but could only have been one (perhaps more) of the Justices themselves. And since AMK's role as last-ditch defender of the unconstitutionality of Obamacare, and

Good news, of a sort: I'm not right all the time. What a burden to set down. On May 23 I wrote that the campaign to make Roberts switch his vote by scaring him with threats of damage to his "historical reputation" and what-not -- this campaign was blisteringly obvious at the time -- wouldn't work.

Silly me.  And, once again, apologies to Justice Kennedy! 

Thanks to illegal and immoral leaks

The Wall Street Journal agrees with me -- and explains, better than I did or probably could, exactly why the taxing power discovered in the Obamacare opinion is novel and dangerous. Tag: I Hate Being Right All The Time

"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,

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

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

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.

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."

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.

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.

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.

I was wrong on only one point: the renegade was Roberts, not Kennedy.

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"

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."

Not even clear yet who's writing, but sounds like Kennedy.

Taking Scotusblog a long time to parse, which is NOT good. Just like Casey. As I said.

Individual mandate okayed as a tax.

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.)

Kennedy delivers Alvarez (Stolen Valor Act) opinion. More likely that Scalia or Roberts will deliver Healthcare?

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."

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 ‪#otherSCOTUSpredictions

Wotan may take Ring from Fafner non obst. Spearrunes bc novation under duress.

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."

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

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.

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.

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"

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

Montana case defying Citizens United summarily reversed per curiam; Breyer dissents.

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.

Citizens United majorly lives. Montana challenge summarily reversed.

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),

Knox v. SEIU -- another Alito opinion for the Court. He is totes not writing the Obamacare decision!

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.

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

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

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,”

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*

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

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.

Watching Court opinion delivery via Scotusblog this morning.

"Mr. Chief Justice and may it please the Court: boogie woogie woogie. I see my time is up."

My colleague Jay Sekulow will be on Fox today at 1:15 discussing the threat strategy some believe is currently being deployed against Chief Justice Roberts in regard to the Obamacare cases. The facts have been piling up for a while; the take-off point for the discussion is a column in The Washington Post

White House Enemies List, 2012-style

I may include this in future syllabi:



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Oh that judicial activism...!Actually, as Virginia AG Ken Cuccinelli points out in his e-letter "Cuccinelli Compass" today, upholding Obamacare would effectively overrule Marbury: it would require such extreme deference to congressional judgment as to what "commerce" is, what "substantially affects" it, etc., that the Court could no longer assert with a straight face that it exercises independent

Back now.I. Obamacare and RaichWhile we're watching and analyzing the Obamacare oral arguments, I'll add only this: I see no reason by Our Hero's regrettable position in Gonzales v. Raich should indicate any likelihood that he will find the individual mandate to be a permissible exercise of Congress's interstate commerce power.The relationship between the Obamacare individual mandate and