Supreme Court Year in Review

Justice Scalia’s Partisanship, Judging Muppets, and the Long Wait for Health Care
An email conversation about the news of the day.
June 27 2012 3:19 PM

Supreme Court Year in Review

VIEW ALL ENTRIES

Justice Scalia’s partisanship, judging Muppets, and the long wait for health care.

Supreme_Court_Breakfast_Table_illo

Rob Donnelly.

Dear Walter and Judge Posner:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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.

Dahlia

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.)

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

TODAY IN SLATE

Politics

The Democrats’ War at Home

How can the president’s party defend itself from the president’s foreign policy blunders?

Congress’ Public Shaming of the Secret Service Was Political Grandstanding at Its Best

Michigan’s Tradition of Football “Toughness” Needs to Go—Starting With Coach Hoke

A Plentiful, Renewable Resource That America Keeps Overlooking

Animal manure.

Windows 8 Was So Bad That Microsoft Will Skip Straight to Windows 10

Politics

Cringing. Ducking. Mumbling.

How GOP candidates react whenever someone brings up reproductive rights or gay marriage.

Building a Better Workplace

You Deserve a Pre-cation

The smartest job perk you’ve never heard of.

Hasbro Is Cracking Down on Scrabble Players Who Turn Its Official Word List Into Popular Apps

The Ludicrous Claims You’ll Hear at This Company’s “Egg Freezing Parties”

  News & Politics
Politics
Sept. 30 2014 9:33 PM Political Theater With a Purpose Darrell Issa’s public shaming of the head of the Secret Service was congressional grandstanding at its best.
  Business
Moneybox
Oct. 1 2014 8:34 AM Going Private To undertake a massively ambitious energy project, you don’t need the government anymore.
  Life
The Vault
Oct. 1 2014 10:49 AM James Meredith, Determined to Enroll at Ole Miss, Declares His Purpose in a 1961 Letter
  Double X
The XX Factor
Sept. 30 2014 12:34 PM Parents, Get Your Teenage Daughters the IUD
  Slate Plus
Behind the Scenes
Oct. 1 2014 10:54 AM “I Need a Pair of Pants That Won’t Bore Me to Death” Troy Patterson talks about looking sharp, flat-top fades, and being Slate’s Gentleman Scholar.
  Arts
Brow Beat
Oct. 1 2014 10:44 AM Everyone’s Favorite Bob’s Burgers Character Gets a Remix You Can Dance to
  Technology
Future Tense
Oct. 1 2014 10:27 AM 3,000 French Scientists Are Marching to Demand More Research Funding
  Health & Science
Bad Astronomy
Oct. 1 2014 7:30 AM Say Hello to Our Quasi-Moon, 2014 OL339
  Sports
Sports Nut
Sept. 30 2014 5:54 PM Goodbye, Tough Guy It’s time for Michigan to fire its toughness-obsessed coach, Brady Hoke.