an overstuffed sofa i wouldn’t want to sit on.

Dear Rusty,

I have a lotta things up in my domepiece, mostly about how hard it was to find a place to work this morning & lady problems & Daphne Merkin piece on therapists. But I just wanted to clarify that I don’t think Roberts is the swing vote here hahaha it just fits into narratives in my mind that aren’t even worth articulating. SCOTUS fanfic. No way he’s gonna get behind a post-37 interpretation of the Interstate Commerce Clause.

Basically, whichever way he votes, Kennedy’s going to be able to have whatever decision he wants on this, whatever little doctrinal flourishes tickle his fancy pants. He doesn’t seem to have superstrong ideological commitments about expansion/contraction of the ICC, but he’s kind of statesrightsy generally.  He could go either way, but even if the existence and substance of the ACA is upheld, there will, I am sure, be weird addenda or limitations tacked on.  I actually am not at all convinced that the legislation won’t survive, I just don’t think we can look to the last 70-150 years of judical history and say oh, no, we’re good, that would be totally against precedent. I’m actually meh on the genuine impact on campaign finance of Citizens United (ECONOMIST BATSIGNAL?), but it was a horse’s head in the bed.

There are some stupid twunts being really loud in the library. I am going to go give them the janky eye. Oh also I heard someone asking the librarian for a book by or about Sean Connery.



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  • Rusty B. Schwartz  On 4 August, 2010 at 1:45 PM

    Naturally I didn’t think you meant J.Rob was the swing vote. The political economy of (read: “the funny thing about”) the Court is that for that until he dies, basically any politically salient decision the Court makes is not a “decision the Court makes” but a “decision Anthony Kennedy makes”… it’s a really obvious point, I know, but it’s worth noting that this is going to be true until (a) he dies or (b) there’s a Republican president and I guess Stephen Breyer dies (I’m assuming RBG ducks out during the Obama administration)… so this could take a while.

    • Violet G. Beekeeper  On 4 August, 2010 at 1:52 PM

      Right, and a “decision Anthony Kennedy makes” isn’t just a simple ruling on an issue e.g. NO GHEY MARRIEZ (I don’t actually even have a hunch how he’d go on that), but it’s whatever random-ass doctrinal flourishes and briefing-friendly but otherwise meaningless multifactor analyses he throws in there. Ok, so maybe no-one will cite to that stuff in the year 3535 (BECAUSE ITS ALL IN THAT PILL) but in the meantime citing anthony kennedy’s a pretty good way to get anthony kennedy and what are essentially his feelings about law become perpetually more entrenched. And they let him put that stuff in there kind of unchecked because whatever, they’re just thrilled they’ve got him to vote with their team, but that random doddering then becomes almost as important as the actual substantive ruling. And it’s not just dicta, it’s also central but loopy reasoning.

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