Law Commons^™

Strategy And Tactics In Nfib V. Sebelius, Tonja Jacobi

Tonja Jacobi

This Article provides an in depth examination of the strategic judicial maneuvering witnessed in the Supreme Court’s healthcare decision. Through that lens, it is possible to gain a detailed understanding of the doctrinal groundwork that Chief Justice Roberts was laying for future conservative revolutions in the Commerce Clause Power, the Necessary and Proper Clause, and the Taxing and Spending Power. The reason Roberts was able to dramatically read down Congress’s main avenues of regulatory power was not despite the liberal outcome of the case, but because of it. Roberts’s strategic sacrifice in NFIB v. Sebelius suggests an obvious analogy to …

How The Dissent Becomes The Majority: Using Federalism To Transform Coalitions In The U.S. Supreme Court, Tonja Jacobi, Vanessa Baird

Tonja Jacobi

This Article proposes that dissenting Supreme Court Justices provide cues in their written opinions about how future litigants can reframe case facts and legal arguments in similar future cases to garner majority support. Questions of federal-state power cut across most other substantive legal issues, and this can provide a mechanism of splitting existing majorities in future cases. Dissenting Justices can ‘signal’ to future litigants when this potential exists, to transform a dissent into a majority in similar future cases.

We undertake an empirical investigation of dissenting opinions where the dissenting Justice suggests that future cases ought to be framed in …