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Agorism
03-30-2012, 12:24 PM
“I really don’t think Justice Kennedy has any idea at the moment how he’s going to vote”

http://www.nytimes.com/2012/03/30/us/justice-anthony-m-kennedy-may-be-key-to-health-law-ruling.html?_r=1&pagewanted=all



Those questions fit neatly within one strain of Justice Kennedy’s understanding of liberty, one he discussed at length last year in an opinion for a unanimous court.

Limiting federal power, he wrote, “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”

The case concerned a federal prosecution of a domestic dispute. Mr. Clement was the lawyer on the winning side.

But there is another strain to Justice Kennedy’s conception of liberty, one that may help Mr. Verrilli. “When you think about liberty relative to Kennedy,” Professor Knowles said, “the element most important to him will be the idea of individual responsibility. He thinks the government has the power to ensure that the responsible exercise of liberty be done in an educated manner.”

That impulse seemed to inform the most closely scrutinized exchange on Tuesday.

angelatc
03-30-2012, 12:36 PM
Why Did Legal Elites Underestimate the Case Against the Mandate? (http://volokh.com/2012/03/30/why-did-legal-elites-underestimate-the-case-against-the-mandate/)


Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” (http://www.washingtonpost.com/blogs/plum-line/post/how-did-obamacares-backers-get-it-so-wrong/2012/03/29/gIQArH5wiS_blog.html) I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts who were so dismissive of the arguments against the mandate were equally dismissive of the federalism arguments that prevailed in cases like United States v. Lopez,New York v. United States, and City of Boerne v. Flores. Many of the legal academics who ridiculed Randy Barnett’s work on the mandate, and who were relied upon by legal journalists and commentators, thought their schools were advancing viable legal claims in Rumsfeld v. FAIR. Oops. (http://www.oyez.org/cases/2000-2009/2005/2005_04_1152) Premier appellate litigators may have a good sense of how the Court is likely to assess complex constitutional law claims, but elite legal academics, not so much.