With Justice Ginsburg, Is Today’s “Constitution” Yesterday’s “Broccoli?”

This morning Maureen Dowd reported for the NYT about a same-sex wedding she attended officiated by Justice Ginsburg:

But the most glittering moment for the crowd came during the ceremony. With a sly look and special emphasis on the word “Constitution,” Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.

No one was sure if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage is constitutional.

But the guests began applauding loudly, delighted either way. Justice Ginsburg, who has officiated at same-sex weddings in the past, also seemed delighted, either by their reaction or, perhaps, by the news that she will be played in a movie by Natalie Portman (who, in a strange casting segue, will play Jackie Kennedy Onassis in another film).

Reading too much into the tea leaves perhaps?  Well not with Justice Ginsburg.  Recall this 2012 post from Orin Kerr, writing just before the Supreme Court upheld the (first) challenge to the Affordable Care Act:

This post is nothing but sheer speculation without any support whatsoever. I’m sure I’m wrong about this, and you shouldn’t take this post at all seriously. Really, it’s just silliness that you should ignore. With those caveats, I was intrigued by Justice Ginsburg’s light and amusing tone during her commentary about the Affordable Care Act litigation at last week’s American Constitution Society convention. Justice Ginsburg often gives public speeches and comments to the press about the current Term, and more than any other Justice she is willing to give a few subtle hints about how the Court’s major undecided cases might be coming out. The thinking — perhaps foolish — is that her tone in these speeches acts as a modest but not-entirely-useless barometer of how her side is doing.

If you watch Justice Ginsburg speaking about the Affordable Care Act case starting at the 27:40 mark of the video, she seems to be having fun talking about the case. She says that the case is indeed “unprecedented,” at least if you mean unprecedented in “the number of press conference, prayer circles, protests, and counter-protests” held during the oral argument. She describes one of the questions as being whether the individual mandate should be “chopped like a head of broccoli” from federal law. She pokes fun at the obscurity of the anti-injunction act issue. She jokes about the rumors concerning when the case will be handed down. Maybe Justice Ginsburg was just in a good mood. Maybe there were just some obvious jokes to make on the mandate case relative to some of the criminal cases she covered. Yes, I’m sure that’s it. Any other conclusion would be silly speculation. But given all the interest in how the individual mandate case might come out, I wonder if some are speculating that Ginsburg’s tone reflects some satisfaction with how the case came out.



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