Saturday, June 23, 2012

Former SCOTUS law clerks -- mandate toast

A poll of former law clerks and attorneys shows a majority think the Court will overturn the Obamacare mandate. Poll here.

One curiosity in the comments about the meaning of collegiality in recent opinions:

“From what I read of the initial survey results, compared to the surveyed group as a whole I was more bullish before oral argument that the justices would strike the individual mandate as an unconstitutional exercise of the Interstate Commerce Clause power. I was less surprised by the tenor of the oral arguments than others. But: although the usual caveats apply, the collegiality and tone the Court as a whole has shown since then makes me less bullish than I was. If you look at other terms where the "conservative" majority prevailed on divisive issues like this one (see for a very specific example OT2006), well before this time in the term calendar the "liberal" justices often show significant frustration with forthcoming conservative decisions by issuing stinging dissents or oral argument lines of questioning in what would otherwise be less divisive cases. For example, I wonder whether we would have seen the gentle tone we saw in the AZ immigration case from Justice Sotomayor if a decision was forthcoming that will strike down a central feature of President Obama's signature bill. Probably reading too much into it but the Court's tenor lately gives me pause.”

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