Prediction:

The Supreme Court will decide the gay marriage cases today.

"Jeffrey Toobin pledges to end predictions"

According to Politico, Mr. Toobin has made yet another wrong prediction about the Supreme Court:

the CNN legal analyst and New Yorker staff writer on Thursday made another prediction—although one much less assertive than his inaccurate Obamacare declaration of last year—about the Supreme Court: On MSNBC’s “Morning Joe,” Toobin said “very likely we’re going to get the affirmative action case” today.

Wrong. As a result, Toobin jokes that he is now going "to make all [his] predictions about the past."

The Gillette-Torvik Blog considers that a victory. But we know it won't last.

David Boies makes a prediction

Mr. Boies has not argued the case for legalizing gay marriage to the United States Supreme Court yet but he is already predicting how the Supreme Court will rule on the issue.  Mr. Boies tells USA Today that he will win the appeal and get the support of more than 5 justices.  Mr. Boies declined to say he would get the support of more than 6.  I guess we should give Mr. Boies credit for not basing his prediction on the questions at oral argument.

What about the Iowa Supreme Court?

Despite the fact that noted idiot Steve King was re-elected, Iowa voters demonstrated more sense this election than in 2010.  This time anti-gay marriage forces were unable to convince voters to unseat Iowa Supreme Court justice David Wiggins.  Mr. Torvik's prediction was two years early.

Gillette-Torvik Election Predictions: Torvik

Here's my prediction for the electoral college: Obama, 281; Romney, 257. On the popular vote, I'll take Obama 50.1%, Romney 49%. Reader(s)™ please feel free to share your predictions in the comments.

The FiveThirtyEight blog currently predicts that Obama will get 307.2 electoral votes and 50.6% of the vote. I'll take the under on the electoral college.

My state-by-state map:

More Posner. Sort of.

I hope we are not turning into a blog about all things Posner.  That said, I recall a New Yorker article from several years ago that mentioned he likes cats or perhaps just the cat in his house.

Some Pale Reflections of Jeffrey Toobin's Brilliance

Jeffrey Toobin, a noted Supreme Court expert and famed prognosticator, has an essay on the Obamacare case in the latest issue of The New Yorker. I have some thoughts in response to a few of his statements.

"Ultimately, I think the Supreme Court will uphold the bill on at least the taxing power ..."

--Gillette-Torvik Blog, July 18, 2010, "Constitutionality of the 'individual mandate' in the health insurance reform bill."

Always trust content from the Gillette-Torvik Blog.

Please ignore our other predictions.

Obamacare predictions

I was going to title this post "D-Day," but then I saw that Linda Greenhouse already has a post by that title up at the New York Times. That would have been embarrassing.

Anyhow, tomorrow is going to be a fun day for followers of the Supreme Court, like us, with the Obamacare decision coming down at around 9:15 central time. I thought I would point out that a few of the very first posts on this blog—almost two years ago, now!—were about the individual mandate. Back then we agreed that the Court would likely uphold the law—Mr. Gillette opined that he thought the individual mandate is "really a fairly straightforward application of Wickard v. Filburn," and I predicted the Court would reach for the Necessary and Proper clause but "there's no way Justice Kennedy is going to sign on to a decision that strikes down this bill."

Of course, what do we know? Devoted reader(s) of the blog know the answer to that question all too well. But at least Linda Greenhouse agrees with us.

For what it's worth, I'm sticking to my guns. Also, I'll reveal a policy preference. I hope the Court upholds the law on very narrow grounds. What I'm hoping for is an opinion that recognizes that the individual mandate presents a novel question of federalism, but finds that it passes muster because of the unique characteristics of the health insurance reform. That way, the decision could act as a check on federal power (by explaining that broad individual mandates will be subject to searching review) and reaffirm that the federal government has broad power to fix problems of national scope in creative ways.

Any last thoughts, Mr. Gillette? Are you going to change your prediction?

 

Profiles in Pizza Parlors

Of all the bad predictions I've made on this blog, one stands out: I predicted failure for the campaign to unseat three Iowa Supreme Court justices who, as part of unanimous court, found a right to same-sex marriage in the Iowa constitution. Alas, the campaign succeeded.

But, hey, at least I'm out here in cyberspace making predictions, and copping to the bad ones. What are you doing, Anonymous?

Anyhow, the Iowa Three are back in the news because the Kennedy Center has bestowed upon them its Profiles in Courage Award, the award named after President Kennedy's ghostwritten book.

This is the ultimate Sportsmanship Award. After all, four other jurists made the same vote as the Iowa Three. Surely they were just as "courageous," no? How come they didn't get the honor too?

I suppose it's because it's unseemly to reward sitting judges for doing their jobs. So the Iowa Three are getting rewarded for getting fired. Period.

Congrats.

Is it unsporting to question how it becomes seemly to reward judges for doing their jobs only after voters de-job them?

Well, what do I know? I make terrible predictions.

By the way, Bob Vander Plaats is, by all accounts, still plugging away in the pizza parlors of the world. Now that's courage.

Justice Kagan on the Mets

Today, the Supreme Court decided Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S. Justice Kagan authored the opinion for a unanimous Court. The case is Supreme Court red meat—although in the abstract it deals with a complicated statutory regime governing the approval of generic drugs for non-patented uses, the case ultimately boils down to statutory interpretation, specifically of the word "an." Seriously:

Truth be told, the answer to the general question “What does ‘not an’ mean?” is “It depends”: The meaning of the phrase turns on its context.  “Not an” sometimes means “not any,” in the way Novo claims.  If your spouse tells you he is late because he “did not take a cab,” you will infer that he took no cab at all (but took the bus instead).  If your child admits that she “did not read a book all summer,” you will surmise that she did not read any book (but went to the movies a lot).  And if a sports-fan friend bemoans that “the New York Mets do not have a chance of winning the World Series,” you will gather that the team has no chance whatsoever (because they have no hitting). But now stop a moment.  Suppose your spouse tells you that he got lost because he “did not make a turn.”  You would understand that he failed to make a particular turn, not that he drove from the outset in a straight line.  Suppose your child explains her mediocre grade on a college exam by saying that she “did not read an assigned text.” You would infer that she failed to read a specific book, not that she read nothing at all on the syllabus. And suppose a lawyer friend laments that in her last trial, she “did not prove an element of the offense.”  You would grasp that she is speaking not of all the elements, but of a particular one. The examples could go on and on, but the point is simple enough: When it comes to the meaning of “not an,” context matters.

As interesting as this general discussion of "not an" is, what caught my eye was the sports talk. Justice Kagan is, famously, a Mets fan. I do not take her use of the Mets example—"the New York Mets do not have a chance a winning the World Series"—to be an empty hypothetical example. I take her to be opining that, in fact, the Mets do not have a chance of winning the World Series. She even slips in the reason—"because they have no hitting."

This is a unanimous opinion remember, so I take it the entire Court is on board with this prognostication. Come October, we'll find out if the Court can maintain its famed legitimacy in matters related to baseball.

"My prediction: a sloppy majority opinion and a sarcastic dissent."

For once, one of my predictions comes true.

Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.

Constitutionality of the "individual mandate" in the health insurance reform bill

The New York Times notes an interesting twist in the Obama administration's defense of the "individual mandate" aspect of the health insurance reform bill.  This is the provision that requires individuals either to purchase health insurance or pay a civil fine that will be collected by the IRS.  During the debate on the bill, some conservatives criticized this provision—hysterically, in my opinion—as a "dangerous expansion of the IRS's power and reach into the lives of virtually every American."  Some conservatives also argued that the individual mandate was not a proper tax since it taxed people for failing to do something (specifically, failing to buy health insurance).  The argument is that if the federal government can tax people for not doing something, then it can use the taxing power to regulate all aspects of human existence, and therefore the federal government has practically limitless power.  On the political (rather than constitutional) front, conservatives argued that the individual mandate was a breach of Obama's campaign promise not to raise taxes on those making less than $200,000 a year, since everyone was subject to the individual mandate, and the bill's subsidies for buying health insurance dropped off far below $200k.