The new phonebook’s here! The new phonebook’s here! As some of you know, I have sporadically done semi-humorous and often factual Supreme Court Term-end wrap-ups. The fifth installment in this eminently deletable series is now available at the Green Bag. This is the first I’ve done with a co-author, which may help explain why it’s […]
Archive | Supreme Court
Scalia Denies Feud with Roberts
The AP summarizes part of Supreme Court Justice Antonin Scalia’s recent interview with Piers Morgan on CNN. Justice Antonin Scalia said Wednesday he hasn’t had a “falling out” with Chief Justice John Roberts over the Supreme Court’s landmark 5-4 decision validating much of President Barack Obama’s health care overhaul. In an interview on CNN’s “Piers […]
The Spending Clause: Comparing the Chief’s Opinion and the Joint Dissent
Some conservatives are not big fans of the Chief Justice right now, since they view his opinion upholding the individual mandate “as a valid exercise of Congress’s taxing power [a]s a sell-out of constitutional principle of the first magnitude.” But if you set aside section III-C of his opinion—and I realize that’s a little like, […]
Chief Justice Roberts and Constitutional Avoidance
At SCOTUSreport.com, Nicholas Quinn Rosenkranz has an excellent post on Chief Justice Roberts’ use of the canon of constitutional avoidance in NFIB v. Sebelius. As Professor Rosenkranz notes, “The Chief Justice’s account of the canon is accurate, but his application of it is exceedingly odd.” Specifically, the Chief used the canon not to resolve a […]
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.
Making Sense of Chief Justice Roberts’ Opinion
I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it […]
What Did the Court “Hold” About the Commerce Clause and Medicaid?
Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that […]
My Politico Post Assessing the Individual Mandate Decision
By Ilya Somin on July 1, 2012 11:36 pm in Federalism, Health Care, Individual Mandate, Supreme Court
The Politico Arena recently noted that some “conservative activists” have turned against Chief Justice John Roberts and asked contributors whether last week’s health care decision can be considered a “victory” for conservatives. My answer is here: Last week’s Supreme Court decision upholding the individual health insurance mandate was a painful defeat for those who wanted […]
The Mandate Decision and Public Perception of the Court
Before the Supreme Court’s decision in NFIB v. Sebelius, many predicted the decision would influence public perceptions of the Court and its legitimacy. If a new Rasmussen poll is to believed, the decision has had some such effect already. From the poll summary: A week ago, 36% said the court was doing a good or […]
Barack Obama’s Ironically Prescient Speech Opposing John Roberts’ Nomination to the Supreme Court
By Ilya Somin on June 30, 2012 10:34 pm in Federalism, Health Care, Individual Mandate, Supreme Court
In light of Thursday’s decision upholding the individual mandate, then-Senator Barack Obama’s 2005 speech opposing John Roberts’ nomination to the Supreme Court seems ironically prescient: There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the […]
Next step: Repeal the individual mandate because it is unconstitutional
By David Kopel on June 29, 2012 7:30 pm in Congress, Constitutional History, Equal Protection, Health Care, Individual Mandate, Necessary and Proper, Politics, Popular Constitutionalism, Presidency, Separation of Powers, Supreme Court, Taxes, Taxing and Spending Clause, Uncategorized
McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning […]
The Chief Gets No Respect
I understand the disappointment that Chief Justice Roberts did not join the dissenters to hold the individual mandate unconstitutional. Whether or not the Chief Justice changed his vote, or was convinced of the proper outcome throughout, Matthew Franck cautions commentators about attributing political or other non-judicial motives to his decision. Last week, in poking fun […]
Is the individual mandate a “tax” according to the original meaning?
By David Kopel on June 29, 2012 6:30 pm in Constitutional History, Constitutional Law, Individual Mandate, Originalism, Supreme Court, Taxing and Spending Clause
Absolutely not. Rob Natelson explains why in this 27 minute podcast from iVoices.org.
NFIB as Marbury
By David Kopel on June 29, 2012 6:25 pm in Constitutional History, Constitutional Law, Federalism, Individual Mandate, Politics, Spending Clause, Supreme Court, Taxing and Spending Clause, Unconstitutional Conditions
My article yesterday for Scotusblog discussed the tremendous importance of the Court’s 7-2 use of the non-coercion rule to limit Spending Clause violations of State sovereignty and independence. The rule has been around ever since Steward Machine Company v. Davis (1937), but NFIB v. Sebelius is the first decision by any federal court to find that […]
“If you want this robe, you’ll have to pry it from my cold, dead hands”: Justices Retiring Later, Often Waiting for a Change in Presidents
As people discuss whether Justice Roberts avoided politics by siding with the left side of the Court or instead yielded to political pressure to change his vote, I want to point to an article that I posted on SSRN a couple of days ago. It shows that Supreme Court justices do tend to act politically […]