Tuesday, April 11, 2017

Chief Justice Roberts is already the swing vote, sometimes.

In Crawford, he and Kennedy joined Steven's narrow holding that plaintiff's facial challenge failed on the facts they gave. I disagree with that position but it was far better than Scalia's concurrence.

In the Obamacare case, he boldly reasserted limits to the commerce clause, but then upheld the statute under the taxing power. That's a politically nuanced position that may have set up the Trump win.

Courtwatchers could point to more eamples.

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