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And the <3  is a neck doily!

Go buy one!

Then she put these types of writings in context with how she would rule from the bench. “This is an academic article,” Pillard said. “Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit.”

Is this right? Do we really believe that a professor’s scholarships would have no implication on her views as a judge. Certainly, judges are supposed to apply established law of the Supreme Court and the Circuit. But there are cases of first impression, or more likely, cases where the precedents do not definitely resolve a case (on the D.C. Circuit perhaps more than on other courts). Is it not fair to look to a scholar’s articles to ascertain how she may resolve these issues?

I haven’t read any of Pillard’s work, and have no thoughts on the answers she provided. But, in the abstract, aren’t law review articles fair game?

And if so, then we run back into the “trimming the sails” argument. Only those with the shortest paper trails can sail through.

Today AMK turns 77.

Justice Breyer offered an interesting take on the 7-1 vote in Fisher (with Justice Kagan recused), which reaffirmed Grutter, but ruled against the University. Why was the vote like that? One word. “Phew.”

Bakke and Grutter held, in Breyer’s admitted shorthand, that “you can use affirmative action, but be careful, don’t go too far.”

When the same issue reached the Court again in Fisher, “there was a lot of speculation,” Breyer told the audience. “Would there be a change? Would [the justices] say no affirmative action? What would the Court do?” Breyer asked, repeating the questions on many people’s minds.

“I can tell you what the Court did do,” Breyer continued, with his characteristic verve.

“Seven members of the Court said Grutter is the law. So, what do I say? ‘Phew,’” drawing laughter. “I say that’s right; that was my view.Grutter is the law.”

With each case, Breyer pointed to numbers. Justice Lewis Powell’s solo concurrence in Bakke became a five-justice majority in Grutter, which became a seven-justice majority in Fisher.

In other words, five is better than one, and seven is better than five.Fisher was not meaningless; affirmative action left the Court stronger this term than it came in.

“So, that’s why I think it’s an important case,” Breyer concluded. “Sometimes an important case is simply reaffirming another case, which reaffirmed another case.”

On Twitter, Rick Hasen commented “Justice Breyer sees himself as savvy, not a sucker.” Of course, Justice Ginsburg was the lone dissenter in Fisher. To which I replied, “Then what does that make Justice Ginsburg?” Rick noted, “She could afford to speak out because the other liberals went along.”

But that reminded me of a similar situation last year. NFIB. Breyer, as did Kagan, went along with Roberts, while Ginsburg dissented. Why?

Maybe because Breyer and Kagen were content to cast a savvy vote, buttressed by Ginsburg’s liberal vote, to avoid a much worse outcome. 7 votes for something bad was better than 5 votes for something worse. The Medicaid ruling,  in hindsight, which allowed states to not opt in, was better than striking it down for all 50 states.

Maybe this was just a “phew” moment?

But which Ilya? Ilya Shapiro? Or Ilya Somin? Or both. They are often confused–and not just for their names!

Last month in Bloomberg, Ilya Shapiro wrote a piece titled, “Why Obama keeps losing at he Supreme Court,” focusing on the cases the Obama Administration has lost 9-0.

If the government can’t get even one of the liberal justices to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision.

Today in USA Today, Ilya Somin wrote a piece titled, “Supreme Court shutouts reveal reckless decisions,” focusing on the cases the Obama Administration has lost 9-0.

When a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.

Granted the two articles focus on some different cases, but my two good friends are of one mind. Seriously.

I think we need another Battle of the Ilyas to settle this mess. Our last bouts were in 2009 and 2010. Shapiro won bouth rounds.