9 minutes in June — reporting the Obamacare case.

Tom Goldstein — of SCOTUSblog, which got it right — examines the details of how CNN and FoxNews got it wrong.

10:08:30.... On the blog, readers are starting to taunt us via our comments feature (there ultimately will be 13,500 comments over the course of the Live Blog):  Guest, “CNN was first, guys…”; Bill, “Fox is already announcing decision”; yolanda, “TV just announced the decision beat you to it”; Guest, “Fox News beats soctusblog….”



It takes me almost one minute exactly to analyze the decision.... I unmute the conference call line and repeat what we have just posted....

Opponents of the Act, having seen the television reports, are incredulous and vocal in their responses:  Guest, “WHAT???”; Guest, “no reports says its gone!”; Republican, “OMFG”; Tim, “No it isn’t”; Ryan, “Bullshit”; Guest, “apparently you have it wrong”; Sarika, “IT IS NOT SURVIVING AS A TAX!!”; Fred, “It sounds like you guys are spinning this thing.  Knock it off and read the law!”

Others have seen enough to know that they need another news source:  Guest, “I’m outta here.  Turning on TV”; David, “I won’t be back to this site.”

And some indicate we are simply too late, and that Fox and CNN’s earlier reports are res judicata on other journalists:  John, “They already struck it down”; Guest, “The mandate is GONE.”

Ha ha. Much more at the link.

Rush Limbaugh — calling SCOTUSblog "a very, very left-wing blog" — explains "the left's" "full swing" "effort to intimidate" the Supreme Court.

That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.

RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....



The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional.... The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else....

Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility....

Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare....

So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.

Now, if Rush links to the SCOTUSblog item he's talking about, I can't find it over there. I went to SCOTUSblog to look for it myself, and I found something else that really shook my opinion that SCOTUSblog is a sober place that maintains a professional gloss:

The RNC shoots itself in the mouth

Shoots itself in the mouth?!!! I thought good people were supposed to eschew murderous metaphors after the Tucson shootings. Remember that? The "new civility" stuff Obama lectured us about. Click my "civility bullshit" tag to brush up on the topic.

(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")

But back to Tom Goldstein in SCOTUSblog:

Opponents of the Affordable Care Act and the Obama Administration... did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.

Now this. The RNC released an advertisement... with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.”

Here's the quite hilarious and brilliant ad:



Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.

Oh, for... Can I say a curse word? No? Then I've got nothing to say.

Tom Goldstein predicts the outcomes (and the authors) of the final 4 Supreme Court cases of this Term.

To be announced tomorrow morning:

1. Bilski v. Kappos:

The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.

2. Free Enterprise Fund v. Public Company Accounting Oversight Board:

[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.

If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....

3. McDonald v. City of Chicago:

[T]he only Justice not to write from [the February] sitting is Justice Alito....

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....

4. Christian Legal Society v. Martinez:

Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....

Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students

We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

Sotomayor!

It's Sotomayor!

ADDED: Tom Goldstein analyzes the political dynamics of the nomination. He says Obama will not need to "invest additional political capital" over confirmation.

... Republicans cannot afford to find themselves in the position of implicitly opposing Judge Sotomayor. To Hispanics, the nomination would be an absolutely historic landmark....

... Sotomayor has an extraordinarily compelling personal narrative. She is a first generation American, born of immigrant parents. She grew up in a housing project, losing her father as an adolescent, raised (with her brother) by her mother, who worked as a nurse. She got herself to Princeton, graduating as one of the top two people in her class, then went to Yale Law. Almost all of her career has been in public service–as a prosecutor, trial judge, and now appellate judge. She has almost no money to her name.

Goldstein thinks Republicans will (should?) wait until Obama's next nomination to stage a fight — the way the Democrats went easy on John Roberts and fought hard against Samuel Alito.

To the extent that there is opposition, it will fall into 4 categories, Goldstein says: 1. that she's not smart enough, 2. that she's "a liberal ideologue and 'judicial activist,'” and 3. that she's "unprincipled or dismissive of positions with which she disagrees," and 3. that she's "gruff and impersonable." Goldstein outlines the response to these 4 arguments.

Here's what I think conservatives should do: Accept that she will be confirmed, but use the occasion to sharpen the definition of conservative judicial values and to argue to the American people that these are the better values.