Friday, June 29, 2012

Did Judge Posner bury the lede?

Judge Posner's lastest thoughts about the Obamacare decision are up on Slate.  They are very interesting and I recommend you go there and read them in their entirety. 

However, the judge kind of buried the lede (assuming one can do that in an opinion piece) at the bottom of his post.  At the very end of, Judge Posner writes:
And speaking of dissenters: Would they have had the courage of their convictions had they been able to pick up a fifth vote? Or would they have been like the dog that barks ferociously when it's behind a fence, but open the gate and it slinks away timidly?

Yowza.  Nothing like telling four of the judges who review your decisions that you think they are probably cowards.

1 comment:

  1. It's a good question that Posner raises. There's been speculation about whether the dissent was originally drafted as a majority opinion. I like to think that there was horsetrading going on, and that Roberts would have signed on to strike down just the individual mandate, but find that it was serverable, and when the other four conservatives wouldn't budge he said screw you and wrote his own opinion upholding the mandate under the tax power. This is sheer speculation, and almost certainly wrong, but fun to think about.


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