The four-Justice dissent, at least on first quick perusal, reads like it was originally written as a majority opinion, [something Larry Solum also noticed] (for example, he refers to Justice Ginsburg’s opinion as “The dissent”) [update: Ginsburg did in fact technically dissent on the Commerce Clause issue, but I think it’s unusual to refer to […]
Author Archive | David Bernstein
Tax or Not a Tax
I’m wondering whether a close reading of the opinions will somehow persuade me that the individual mandate can be a “tax” for constitutional purpose, but “not a tax” for Anti-Injunction Act purposes (an anomaly that occurred to me immediately, and not surprisingly is raised in Justice Scalia’s dissent).
The Perils of Shortsightedness
As readers now now, the Court has upheld the ACA 5-4, with Roberts in the majority. As I noted several times on this blog, the Bush Administration had one primary criterion for its judicial nominees: whether a nominee was likely to vote in favor of the government in War on Terror cases. I know, for […]
“Activism?”
Has there been a single pundit from the liberal left who has proactively denounced the Supreme Court for undue “activism” if it invalidates the individual mandate who has also denounced the Supreme Court for activism for invalidating most of Arizona’s immigration-enforcement statute? I understand there are all sorts of distinctions one can draw between the […]
It’s Really Getting to be Silly Season
Stephen Spaulding, Staff Counsel at liberal pressure group Common Cause, says that Republicans, unlike Democrats, understand that the court is a partisan body: “I think that progressives have approached the court as a place of justice, whereas the right wing has approached the court as a place of pure power.”
Let’s Play “Spot the Logical Fallacy,” James Fallows Edition
James Fallows: A Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: “Obama Health Law Seen Valid, Scholars Expect Rejection.” How would you characterize […]
Williams and the New Wigmore
Earlier this week, the Supreme Court issued a fractured opinion in Williams v. Illinois, a Confrontation Clause case. The bad news (for just about everyone) is that this opinion hopelessly muddles things. The good news (for me and my co-authors) is that four different Justices cited the treatise I co-authored with Penn State’s David Kaye […]
Verbosity
I just stumbled across the following in a law review article: “[so and so] recently published a book-length project.” This book-length project is otherwise known as a “book.” The author of the offending phrase is generally an excellent writer, so it happens to the best of us.
Scalia and Wickard: Not Unexpected
By David Bernstein on June 18, 2012 8:51 pm in Constitutional History, Constitutional Law, Constitutional Theory
With regard to Jonathan’s post on Justice Scalia’s harsh words for Wickard, I’m not really surprised. Back in 1992, I surveyed the (admittedly relatively limited) literature on the commerce clause from conservative and libertarian scholars and concluded: There is virtual unanimity among modern conservative and libertarian scholars that the broadening of federal power during the […]
The American Jewish Future: Orthodox, Right-Wing, Poor?
A new study of the American Jewish population in the New York metro area contains this stunning statistic: sixty-one percent of all Jewish children in the area live in Orthodox households. This is a remarkable statistic. It’s probably NEVER been the case in American history that such a high percentage of young Jews in New […]
How Did this Get Past The New Yorker’s Fact-Checkers?
The current issue of The New Yorker has an article by Jill Lepore on the history of the Supreme Court’s struggle for independence. The article talks too much about the varying quality for the Court’s chambers over the years, but is otherwise a good introduction to the topic, albeit from an implicitly liberal perspective. The […]
Origins of Commerce Clause Objections to the Individual Mandate
As noted previously on this blog, Democrats in Congress essentially ignored plausible constitutional objections to the ACA’s individual mandate, and therefore have only themselves to blame if the law is declared unconstitutional. A counter-meme has spread on the liberal/left that constitutional objections to the ACA’s individual mandate were somehow invented circa late 2009, whereas previously […]
Hazardous Swimming Pool Lifts
A few weeks ago, I stayed with my family at a Marriott hotel in Hershey, PA that had a small indoor pool. Until then, I was only vaguely aware of the controversy over federal ADA regulations that seem to require all public pools to have permanent lifts for the disabled. And to the extent I […]
Sabbatical Tax Hypothetical
Here’s a hypothetical that’s come up, and may be of interest to some of our academic readers. Professor X is a professor at the University of Wyoming. She has accepted an offer to undertake research at Tel Aviv University for calendar year 2013-2014. As a twenty-year veteran of UW, X is eligible to take two […]
On Whiggish Constitutional History and the History of Women’s Constitutional Equality
Attorney Rob Weiner has a guest post over at Balkinization decrying challenges to the ACA. Weiner claims that the challenges reflect nostalgia for a bygone era and discredited doctrines. I disagree for reasons that have been repeated many times on this blog (essentially, the challengers are attacking a broad new and novel expansion of federal […]