In this recent post, political scientist Steven Teles argues that Chief Justice John Roberts’ decision to uphold the individual mandate was motivated by “statesmanship”: [M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, but he couldn’t get the […]
Archive | July, 2012
Black Women and Guns in Texas
I saw a couple of people (including InstaPundit) citing this Utne Reader article, which reports that “Texas Department of Public Safety data show that the fastest-growing group of concealed handgun owners in the state has been, for at least five years, black women” (and also tells the story of the author, one of those black […]
Steven Teles on Chief Justice Roberts
Over at the Federalist Society’s new blog, SCOTUSreport.com, Steven Teles has a very interesting post on the Chief Justice’s opinion in NFIB v. Sebelius. A taste from the conclusion: [M]y guess is that Roberts would have joined a decision more or less striking down the mandate but severing it from the rest of the law, […]
Knowing Unlicensed Possession of a Gun in Public Required for Punishment Under Minnesota Law
So holds yesterday’s State v. Ndikum (Minn. July 11, 2012). It’s a statutory construction case, akin to Staples v. United States (1994), and not a constitutional case. But because the decision whether to read a required mental state into a statute — here, the decision whether a ban on “possess[ing] a pistol … in a […]
Silver Linings in the Health Care Decision
This morning NRO posted an article I co-authored with Nathaniel Stewart on the limited doctrinal implications of the Supreme Court’s decision in NFIB v. Sebelius. The article is forthcoming in the July 30 National Review. Here’s how the piece beings: The Supreme Court’s ruling in NFIB v. Sebelius was disheartening, especially after overturning the mandate […]
SCOTUSreport.com
An excellent new blog from the Federalist Society, with posts about recent and fairly recent Supreme Court decisions (so far mostly the health care cases, though also Citizens United) from Richard Epstein, John McGinnis, Rick Garnett, Nick Rosenkranz, Eileen O’Connor, Brad Smith, Kurt Lash, Rick Esenberg, and Joel Alicea — check it out.
“Negative Gender Stereotypes” and the Need for More Effective “Anti-Hate Speech Legislation”
From a U.N. document describing the response of the Iceland delegation to the U.N. Human Rights Committee (paragraph break added): Iceland had two gender-equality Action Plans, a first that provided for structures within Government and local authorities, and a second on domestic and sexual violence. Research had been conducted within the framework of those plans, […]
How to Shrink an 80-Page Complaint into Only 25 Pages
The answer, if you are Judge Sparks: Dismiss the initial complaint without prejudice under the Federal Rules of Civil Procedure for being a “lengthy and bitter polemic against the named defendants.” Here’s the initial complaint filed by Lance Armstrong (represented by local counsel in Austin as well as two major law firms in DC). The […]
Will the Health Care Cases Cause Liberals and Conservatives to Switch Positions on the Role of the Supreme Court?
There are two basic positions in the American legal tradition about the power of courts to strike down legislative acts. The first position envisions the power of judicial review as an unambiguously positive thing. It is a Constitution we are interpreting, and we should strive to get it right. If that means that statutes must […]
The Bar Review version of NFIB v. Sebelius
By David Kopel on July 10, 2012 2:52 pm in Commerce Clause, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Over at Scotusblog, I present the legal rules of NFIB v. Sebelius, as they might appear in a bar review outline, or in a student study aid for a Constitutional Law I class.
Congressional Hearing on GM’s Delphi Pension Top-Up
I’ll be testifying today in a hearing in the House Government Oversight Committee regarding GM’s decision to spend $1 billion in taxpayer bailout dollars to top-up the pensions of Delphi’s UAW retirees (and later, members of the Electrical Workers and Steelworkers unions but not members of other unions or salaried workers). In other words, a […]
More Data Contra Peter Beinart
Back in 2010, I wrote: Peter Beinart has written a scathing indictment of organized American Jewry’s “conservative” views on Israel. He claims that “right-wing” Israeli policies, combined with American Jewish groups’ unflinching support for Israel, are alienating young American Jews, and reducing their attachment to Israel. Beinart’s essay has received a remarkable amount of attention, […]
A Rare Decision Holding a Potential Life Sentence To Be “Cruel and Unusual Punishment”
Despite the Court’s recent decisions limiting life sentences for juvenile defendants, generally speaking it’s very rare for courts to hold that sentences other than death sentences constitute “cruel and unusual punishment.” But State v. Proctor (Kan. Ct. App. July 6, 2012) so holds, in a way that seems likely to affect many similar cases in […]
Perceptions of the Honesty of Political Adversaries: The Poll Results
Today’s reader poll on perceptions of the honesty of political adversaries produced some really interesting results. With about 1100 responses so far, the results suggest that each side has the same view of the other. About 45% of respondents, both liberal and conservative, saw no difference between the honesty of liberals and conservatives. But about […]
Chief Justice Roberts and the window tax
By David Kopel on July 9, 2012 2:27 pm in Constitutional History, Constitutional Law, Health Care, Individual Mandate, Originalism, Taxes, Taxing and Spending Clause
In NFIB v. Sebelius, Chief Justice Roberts imagined a hypothetical federal tax on windows, in order to bolster his point that the Court should treat the individual mandate as a “tax,” even though the Obamacare statute calls it a “penalty.” Suppose Congress enacted a statute providing that every taxpayer who owns a house without energy […]