Dear Walter and Judge Posner:
A few quick reactions to what’s been said already, and then we can turn to health care reform. Firstly, on Arizona immigration, Walter’s post from Monday calling it an all but triumph for the Obama administration met with some resistance from a lot of the civil rights groups who saw the outcome as disastrous. The notion that section 2(b) of the law—the “show me your papers” provision—will stand until it’s challenged for being racially discriminatory is appalling to them because, as I wrote after the oral argument, this case is about ethnic profiling, even when it isn’t.
Judge Posner, you’ve kind of lit up the Internet this morning with your musings about Justice Scalia’s dissent in Arizona v. United States, and I am glad to hear that despite your distaste for putting Hamlet on trial, you’ve left some wiggle room for adjudicating amongst Muppets. I am rather partial to Muppets as well. It’s hard for me to say whether Justice Scalia crossed some invisible line into partisan punditry on Monday; I felt that he’d crossed that same line during the arguments over Obamacare in March.
I was struck by one other thing in your post from yesterday on the Miller decision. You wrote, “I don't object to a loose construction of the Constitution; there isn't any sensible alternative, given how old and out of touch the document is, how unrecoverable the actual thinking of its authors and ratifiers, and how vaguely worded so much of it is.” That sounds almost Brennan-like, and trust me, that is a compliment. With Professor Jack Balkin joining us either tomorrow or Friday, I wonder if you wanted to expand on your thoughts about the originalism-versus-living Constitution moment in which we find ourselves?
Finally, if I get one more email from someone predicting the outcome of tomorrow’s health care cases based on a judicial speech, the timing of a dissent, or the telling flare of a judicial eyebrow, I am going to set my Out of Office response to the “fleeting expletives” setting. Truly, nobody knows what’s going to happen, and the group hypnosis that convinced everyone that the mandate would be struck down on Monday—and is equally adamant that it will be upheld tomorrow—is starting to make me feel like a member of a very troubled cult. My friend Professor Barry Friedman at NYU* described it to me this way today: "Everyone keeps saying, ‘The longer this goes on, the more I'm thinking X will happen.’ But that's nuts; the decision was always going to come down on the last day of the term. What we're really seeing is our own anxiety about the case circling around in our heads.” I agree. The only thing that has changed since March is the calendar. Walter, have you any thoughts or predictions to offer? Tea leaves to read? My Out of Office response is standing by.
Correction, June 27, 2012: This article originally described Barry Friedman as a professor at Columbia University. He is a professor at New York University. (Return to the corrected sentence.)