Last week I promised a post (the post, really) on the interplay between expert opinions and judicial opinions. Here you go.
Saturday, June 30, 2012
Winning the wrong way?
I just got a fundraising email from Barack (as friends like me call President Obama):
We might not outraise Mitt Romney.
But I am determined to keep the margin close enough that we can win this election the right way.So what happens if we can't keep it close enough to win the right way? Apparently, there is a Plan B: winning it the wrong way.
Friday, June 29, 2012
"This is the end of America as we know it. No exaggeration."
The most hysterical response to the Obamacare decision.
Unfortunately, democracy already died back on June 6th, so that guy is a little late to the party.
Unfortunately, democracy already died back on June 6th, so that guy is a little late to the party.
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:
Yowza. Nothing like telling four of the judges who review your decisions that you think they are probably cowards.
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.
Thursday, June 28, 2012
Walter Dellinger drank the Kool-Aid
Over at Slate, Walter Dellinger has been writing things that annoy me.
First, yesterday he said this, about the challenge to the individual mandate as an exercise of the commerce power:
First, yesterday he said this, about the challenge to the individual mandate as an exercise of the commerce power:
Torvik and Gillette are smarter than Klein and Toobin‽
The Supreme Court has upheld Obamacare. Mr. Torvik and I were right on the result but wrong on whether Justice Kennedy would be in the majority. I was right that Chief Justice Roberts would write the opinion (I do not believe Mr. Torvik made a prediciton on this point but maybe he did. I am too lazy to look.). Kennedy, Scalia, Thomas, and Alito filed a joint dissent so my prediction about the tone of Scalia's dissent is probably wrong.
In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous. Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.
In any event, regardless of whether you agree with the decision, I would like to think we can all agree that our March 28, 2012 post was spot-on in pointing out that the predictions that Obamacare was doomed by Ezra Klein and Jeffrey Toobin were ridiculous. Predicting outcomes based on oral arguments is, was, and always will be a foolish exercise.
"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.
Always trust content from the Gillette-Torvik Blog.
Please ignore our other predictions.
Wednesday, June 27, 2012
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?
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?
Maybe summary reversal of the Montana Supreme Court was for our benefit.
Seventh Circuit Court of Appeals Judge Richard Posner has a different perspective on the Supreme Court's summary reversal of the Montana Supreme Court's campaign finance decision. His thoughts are at the end of this post about Miller v. Alabama.
Judge Posner writes:
On the other hand, given Mr. Torvik's point that the five justices who support Citizens United think that as a matter of law unlimited independent corporate expenditures on political messages do not create the appearance of corruption (a point on which they are surely wrong), it feels like Judge Posner is being too charitable to the Supreme Court. Remember that for the Supreme Court to revisit the issue, someone has to appeal. A summary reversal sends the message that such an appeal will be fruitless. Perhaps some appellate lawyers will see this the same way that Judge Posner does and appeal to the Supreme Court the next time a state supreme court strikes down one of its campaign finance laws. But that seems like a bit of a stretch.
Judge Posner writes:
I would like to comment very briefly on the Montana campaign contributions decision. I think the court was right to do what it did. I don't say this because I agree with the Citizens United decision. I don't. But a presidential campaign is not the right time to revisit the issue. The prospect that the court might overrule the decision, or more likely modify it, would create enormous uncertainty at a time when the voters' and the politicians' circuits are already overloadedI have not thought of this before. Obviously, Judge Posner does not know whether the 5 justices who voted to summarily reverse the Montana Supreme Court were thinking about this issue. But it is an interesting thought. Presumably in light of the summary reversal no state is going to try to uphold a similar spending restriction and thus the presidential candidates and the PACs that support them all understand what type of spending is allowed. If the Supreme Court had simply set the case for argument next term (which does not begin until October so no decision would be likely until after the election), it would have been unclear whether a state could limit the holding of Citizens United.
On the other hand, given Mr. Torvik's point that the five justices who support Citizens United think that as a matter of law unlimited independent corporate expenditures on political messages do not create the appearance of corruption (a point on which they are surely wrong), it feels like Judge Posner is being too charitable to the Supreme Court. Remember that for the Supreme Court to revisit the issue, someone has to appeal. A summary reversal sends the message that such an appeal will be fruitless. Perhaps some appellate lawyers will see this the same way that Judge Posner does and appeal to the Supreme Court the next time a state supreme court strikes down one of its campaign finance laws. But that seems like a bit of a stretch.
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