Epic Morning
Four 5-4 decisions, three dissents from the bench, and very touching reflections upon the life of Marty Ginsburg and the career of Justice John Paul Stevens. Really an amazing experience inside the Court this morning.
Rushing off to Kagan Hearings now. First, a few quick thoughts:
- McDonald: 5-4 result as expected for full incorporation with Thomas concurring for PI Clause and Breyer registering a protest dissent from Heller. Contra my prediction, Stevens and Sotomayor dissented from incorporation, with the former writing for himself and the latter joining Breyer’s dissent along with Ginsburg.
- Bilski: Stevens lost his majority, which explains the long delay. Kennedy wrote the majority, signaling that perhaps he had changed his vote. Stevens read his concurrence (which was really a dissent) from the bench.
- PCAOB: The Roberts Court is really getting in the habit of rewriting federal statutes by judicial fiat. With NAMUDNO last year, and Skilling and PCAOB this year, lots of legislating from the bench, albeit for apparently varying motivations that I will explore at some point this week.
- Christian Legal Society: No one would have blamed Justice Ginsburg for skipping today, but in she came to read her majority opinion.
Also, it appears that Justice Breyer took this morning to be his coming out party as the liberal bloc’s new leader. His two dissents from the bench were lengthy and passionate, and I got a palpable sense that he had seized the torch from Stevens, whether or not it had actually been passed to him.
Ginsburg’s opinion was pretty strong in its criticism of Alito; Balkinization suggests Alito’s criticism of someone she knows/respects factored in.