Antonin Scalia

Scalia Reveals How Little He Knows About Immigration Policy
April 26, 2012

Following yesterday’s oral arguments, the early consensus among Supreme Court–watchers is that the conservative justices will band together to uphold at least some core provisions of Arizona’s controversial immigration law. One would hope that any such decision would be rooted in a strong understanding of the issues at stake. Unfortunately, after attending yesterday’s oral arguments, I’m not sure that the leader of the Court’s conservative bloc—Antonin Scalia—has a very sound grasp of our country’s immigration policies.  The question before the Court is whether S.B.

Health Care As Consumption
March 30, 2012

Antonin Scalia’s now-famous comparison of compulsory health insurance to compulsory consumption of broccoli has been widely criticized on many grounds, but not on its implicit assumption that health care (as opposed to health insurance) constitutes consumption. Conservatives like to portray health care as no different from any other good, and emphasize that if  you make it too readily available then people will want to consume too much of it. There is some truth to this.

Why the Supreme Court Justices Won’t Be Crudely Political When They Rule on Obamacare
March 29, 2012

In the weeks preceding the Obamacare case, many veteran Supreme Court-watchers could not bring themselves to believe that a majority of the justices would find the individual health insurance mandate unconstitutional.

Justices Contemplate Medicaid, Call It a Day
March 28, 2012

The hearings are over, finally. The afternoon argument, over the Affordable Care Act's expansion of Medicaid, was as contentious as the rest -- with the justices giving both the government and the states challenging the law extra time to make their arguments.  This time, the liberals wasted no time in pressing Paul Clement, attorney for the 26 states, about his assertion that the law's expansion of Medicaid for the states was coercive.

Day 2 at the Court: Well, that Could Have Gone Better
March 27, 2012

My first impression from day two at the Supreme Court: I was more confident yesterday than I am today. With the caveat that I know health policy a lot better than I know law, I can still imagine the justices upholding the individual mandate. But, at this point, I can just as easily imagine them striking it down.  Tuesday's hearing was energized and contentious, from start to finish. But while the justices hammered lawyers from both sides with difficult questions, Solicitor General Don Verrilli seemed to struggle more than Paul Clement, attorney for the states.

Will the Court Uphold Health Care Reform? Survey Says...
March 19, 2012

Las Vegas hasn’t posted odds on whether the Supreme Court will reject health care reform. But the American Bar Association has done the next best thing. As part of a special publication devoted to the case, the ABA surveyed a group of veteran observers and asked them to predict the outcome. The results? Eighty-five percent predicted that the court will uphold the law. The ABA won’t say how it picked the experts; it promised anonymity to guarantee candor. So make of the results what you will. But those experts seem to part of a broader consensus.

The Great Legal Paradox of Our Time: How Civil Libertarians Strengthened the National Security State
March 16, 2012

When Michael Ratner argued in a February 2002 lawsuit that British citizen Shafiq Rasul had a legal right to challenge his detention at Guantanamo Bay, there was little reason to believe he and his colleagues at the Center for Constitutional Rights (CCR) would play any role in shaping America’s national security landscape. The country was still seething with anger over the attacks of 9/11, and longing for revenge. The few legal precedents that existed were not very encouraging.

Rick Santorum’s Virginia Church and Opus Dei
March 06, 2012

Rick Santorum’s Catholic faith is an obvious centerpiece of his campaign for the GOP presidential nomination, and it is rare for him to speak without referencing his religious beliefs. It is also rare, however, to hear him speak about his particular church, St. Catherine of Siena, which he and his family have belonged to for at least a decade. Even his 2005 manifesto on his personal faith and politics, It Takes a Family, did not mention the church. I was curious to learn more about it, so last Friday morning, I attended a 9 a.m. Mass there. St.

All Hail Samuel Alito, Privacy Champion Extraordinaire!
January 24, 2012

Yesterday the Supreme Court handed down the most important privacy case of the Roberts era, U.S. v. Jones. The unanimous decision is an occasion for dancing in the chat rooms. In holding that the government needs a warrant before attaching a GPS device to a suspect’s car to track his movements 24/7 for a month, all the justices rejected the Obama administration’s extreme and unnecessary position that we have no expectations of privacy when it comes to the virtual surveillance of our movements in public places.

No Objection
November 24, 2011

Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones. But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C.

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