an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
To follow on Mark and Jack's posts, I want to make two observations. The first is that there is a simple diagnostic that indicates whether a president is reconstructive or preemptive under Skowronek's theory. The party of the reconstructive president always wins a third term (Jefferson/Madison, Jackson/Van Buren, Lincoln/Grant, FDR/FDR, Reagan/Bush). Preemptive ones do not have the clout to pull this off, though in two instances they got close (Eisenhower/Nixon, Clinton/Gore). So if Obama is reelected and then followed by Joe Biden or Hillary, for example, he was a reconstructive president. Tune in 4 years from now.
The other issue raised by Jack's video is whether the Supreme Court will start issuing what I've called "preemptive opinions" that directly challenge the Obama Administration's constitutional priorities. The individual mandate litigation meets the conditions that I've identified in my prior work for such an opinion, and if the past was always prologue then I would predict that the Justices will strike down the Affordable Care Act. My Court-watching instincts, though, tell me that they will not do this, largely because I think that the usual majority will want to save its political capital for affirmative action and the Voting Rights Act. Perhaps I don't have enough trust in my descriptive theory, but we'll know soon. Posted
by Gerard N. Magliocca [link]
As to AA, Kennedy in Parents Involved said he supports race conscious programs but has yet to vote to uphold one yet. Fisher doesn't really sound like one he would either. It would be helpful if he found one he liked.
Roberts opinion in NAMUNDO aside, I'm not aware of Kennedy showing much of a sign of wanting to overturn VRA. I realize Boerne taken to its logical conclusion would, but Kennedy manages to draw lines others find unprincipled.
I'd be curious to see a "preemptive opinion" by the Roberts Court. I too doubt the ACA would be one, though it taking up the state coercion argument that even the 11th Cir. rejected is interesting.
There is also the "Anticipatory Overrulings" idea.
This is an honest question: what are the limits on the political capital of a majority on the Supreme Court? That is, if you have an established pattern of working together, wouldn't such expenditures be minimal compared to those required within a less obviously factional group?