Posted in Clairvoyance, Law and Politics by Mike Sacks on March 8, 2010

Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.

As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires.   For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.

In fact, Kagan may have time yet before she gets her much-expected nomination to the bench.  I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group.  Only when Justice Breyer retires will the President seek to preserve the Jewish seat.

By then, however, Kagan’s window may be closed by age or the President’s party affiliation.  And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.

Samantar v. Yousuf

Posted in Anticipation by Mike Sacks on March 3, 2010

Had I had any gas left in the tank after Monday/yesterday’s 26-hour vigil, I’d have gotten back in line for this morning’s case, Samantar v. Yousuf.  But after I submitted my ABA Journal piece on McDonald last night, my body and mind shouted “no más.”

Samantar does look to be a very interesting case that sadly flew under the radar this term.  In lieu of F1@1F coverage, check out the following links:

As I publish this post, the respondent’s counsel should be fielding the justices’ questions.  Once the SCOTUS press corps starts publishing their oral argument write-ups, I’ll link to them here.

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Saints Quarterback Needles the NFL

Posted in Anticipation by Mike Sacks on January 8, 2010

Drew Brees, quarterback for the New Orleans Saints, penned an op/ed for this coming Sunday’s Washington Post regarding next Wednesday’s case, American Needle Inc. v. NFL. He argues that if the Supreme Court affirms the Seventh Circuit’s decision that the 32 NFL teams operate as a single business entity, therefore cannot violate antitrust laws, the ramifications for pro sports would be ruinous:

[I]f the Supreme Court agrees with the NFL’s argument that the teams act as a single entity rather than as 32 separate, vigorously competitive and extremely profitable entities, the absence of antitrust scrutiny would enable the owners to exert total control over this multibillion-dollar business.

What might the owners do? They could agree to end or severely restrict free agency, continue to enter into exclusive agreements that will further raise prices on merchandise, lock coaches into salary scales that don’t reward them when they’re promoted and set higher ticket prices (including preventing teams from competing through ticket discounts). These and other concerns prompted the NFL Players Association — along with the players associations of Major League Baseball, the National Basketball Association and the National Hockey League — to file an amicus brief with the Supreme Court last fall, arguing against the notion of the NFL as a single entity.

F1@1F will be out on the pavement early Wednesday morning for American Needle.  Be sure to follow the F1@1F Twitter feed, viewable under “On the Ground” in the sidebar, for updates from the line.   If some pro football player who couldn’t score a reserved seat inside the Court tries to muscle his way past me in line, you will hear here first.  And if I survive the morning frost and any mad footballers, then check back here later that day for a full write-up of what went on inside and outside the Court.


Posted in Clairvoyance by Mike Sacks on January 3, 2010

The WaPo has a story this morning about the inevitable lawsuits challenging the constitutionality of the health care bill’s individual mandate.  Over at Balkinization, Professor Mark Tushnet reminds his liberal colleagues, whose quotes in the WaPo piece discard the conservative arguments against the mandate, that the law is what five members of the Supreme Court declare it to be.  In Tushnet’s words,

where the stakes are high enough and the political energy is available (to lawyers and judges), at any time the body of legal materials contains enough stuff to support a professionally respectable argument for any legal proposition. So too with the constitutional arguments against the individual mandate. […]

[W]hat the law “is” is what the courts will do in fact, the thing to do is to figure out which side of the argument can count to five first.

Or, put another way, remember Bush v. Gore?

Indeed, some conservative and libertarian legal scholars and practitioners see the health care bill as the best opportunity to restore the “Constitution in Exile“–one eminently protective of private contracts and individual economic rights against government interference–since its banishment in 1937.   A few such scholars were quoted in the WaPo piece.  Since the fall, the Wall Street Journal has opened its op/ed pages to Constitution-in-Exilers who have attacked the health care legislation as patently unconstitutional.

These advocates are banking on the fact that the health care overhaul is so drastic of an expansion of the modern constitutional order–one in which the Commerce Clause protects nearly every economic regulation–as to compel at least five members of the Court to declare once and for all the intellectual bankruptcy of the country’s post-1937 jurisprudence.

Tushnet is right to warn his fellow liberals not to be so sure of the individual mandate’s constitutionality.  And surely there will be members of the Court–Justice Thomas, for one–who will eagerly vote to condemn the mandate.  But per my belief that the Roberts Court has been acutely responsive to the surrounding political climate–see my introductory post below–I do not believe a majority of the Roberts Court will want to take the side of the Tea Partiers and the Tenthers on health care.

Further, Congress’s votes in both chambers did not reflect the broad public support for health care reform.  In Bush v. Gore, the Court’s five-member majority could rely on just about 50% of the population to support its Presidential preference.  For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

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