Tag Archives: Justice Kennedy


ObamaCare: The Sky Is Not Falling

Around about 1 P.M. yesterday, the world collectively and rather seriously lost its mind. Jeff Toobin took to the air to proclaim the end of ObamaCare, the death of the modern Commerce Clause, and war and confusion generally; InTrade shares on ObamaCare’s death soared to 59%; and Lyle Denniston, who unlike Jeff Toobin has actually argued appellate […]

Toles bush marriage

Victory in California: What to Take from the Ninth Circuit’s Decision

Yesterday gave American progressives two strong pieces of good news: first, Rick Santorum swept a few early primary and caucus states, gaining not so many delegates, but considerable momentum, and therefore guaranteeing that the continuing disaster that is the Republican primary season will drag on for… a while. Second, and more importantly, the Ninth Circuit […]

The Supreme Court and the Failure of Practical Thinking

Monday marked the second in a series of Supreme Court decisions that — even setting aside the legal points at issue — seem to completely abandon any notion of common sense. First, per Justice Scalia, the Court finally blocked plaintiffs’ class certification in a putative wage discrimination class action against discount giant and dubious corporate […]

Would Kennedy Strike Down the Defense of Marriage Act?

No. It pains me to say, but Koppelman is wrong to hope he would. We’re in this one for the long haul. First, he’s right to point to Kennedy’s opinions for guidance. The man does love citing himself. His opinion for the Court in Gonzales v. Carhart, 550 U.S. 124 (2007) is essentially his dissent […]

Why Malice Matters: a Look Back at the Prop 8 Trial

I haven’t kept close tabs on the Prop 8 trial on this site, because others leave so very little room for improvement. But with the conclusion of testimony on Friday, it may be time to look back at one of the most remarkable and, for some, confusing aspects of the trial. Namely, why, this member […]

Don’t Let Kennedy Be Kennedy

My opinion of Justice Kennedy is, by this point, a matter of public record. In short, his flair for the dramatic, middle-of-the-road and substantially unresolved politics, and sudden power combine to create a jurisprudence wholly bereft of principles, no matter what his apologists say, and a worrying tendency to depart from established law precisely when […]


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