Monday, March 26, 2012

Enjoy Day 1 of Oral Argument!

Gerard N. Magliocca

"Great cases like hard cases make bad law. For cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."

Oliver Wendell Holmes Jr.


Exhibit 1: Buck v. Bell

An apt quote.

In response to Professor Fishkin, I would note that the relevant question is whether Texas can compel you to buy, not eat, broccoli. And the answer to that, I assume, is yes.

I think Professor Morrison's complaints about Randy Barnett's "alarmism" largely miss the mark. The main problem is that Barnett's alarms will be just as valid (or very nearly so) even if the Court agrees with his constitutional argument in this case.

Well, I think this could make hard case because the issues are skewered by partisan and other matters but it is a "great" law as in importance and scope in various respects and involves major issues, if one I personally think are easily applied in this specific case.

Great cases overshadow decisions issued the day of their argument. The two cases decided today both have quite weird dispositions.

In the Zivtovsky case, it was agreed that political question doctrine issue was surplusage, because the case could not be a political question unless the president's powers also overcame those of Congress; thus the Court of Appeals necessarily decided the inter-branch dispute in favor of the Executive. Although the substance of the inter-branch dispute was fully presented to the Court, it nonetheless refused to decide it.

In the Credit Suisse case, it remanded for consideration of equitable tolling, while leaving in place the Court of Appeals' conclusion that the statue was one of repose rather than limitation and therefore was not subject to equitable tolling. It is clear what the Court wants is for the district court to resolve the plaintiffs' factual dispute in favor of Credit Suisse, but how can the Court of Appeals order that when it has been affirmed in deciding that equitable tolling does not apply?

I think a fair case could be made that this Court frequently does not go far enough in applying its rulings to the case before it to see how practicable they actually are.

If Texas can compel you to get raped in order to terminate your pregnancy, surely Texas can compel you to buy broccoli.

Of course there's no liberty interest in either, nor in forcing others to pay your medical bills.

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It appears the Court is in no mood to punt this case past the election.

So far, so good.

Poor Professor Koppelman- I am afraid that he is exhibiting signs of Obamacare Derangement Syndrome. To wit, the following from his Salon piece:

"The fact that so many people (including, I am very sorry to say, some law professors who are friends of mine) have converged around such weak arguments is a specimen of the collective madness that occasionally besets otherwise well-functioning civilizations, like the McCarthy red scare of the 1950s, or the Salem witch trials."

Thanks for good information.

The headline from yesterday's oral arguments:

"Supreme Court cuts Mr. Long short!"

Gee, what a way to treat a Court-appointed attorney. "Ye gads! Moiled again!"

Meanwhile, Zivotofsky v. Clinton was handed down, a partial win for an advocate [Zivotofsky v. Clinton] who's first case involved investigations of communists back in the mid-60s. CJ Roberts did his CJ Marshall impression on what isn't a political question while Justice Sotomayor had an interesting concurrence and Breyer dissented.

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