"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.