Lawyer X writes in with the following bit of funny:

How awesome would it be if Justice Kennedy, in the controlling opinion, invalidated the individual mandate, relying on Lawrence v. Texas? Liberals would have a collective meltdown. I can see Rachel Maddow’s head exploding on live TV.  And, conservatives would need to either (i) defend the reasoning underlying Lawrence, or (ii) concede that the invalidation of the individual mandate relied on judicial activism.

Lawyer X goes on to stipulate that Lawrence wouldn’t be particularly on-point, but that pointy-ness has never been the sine qua non of Justice Kennedy’s jurisprudence. If Kennedy wants to find against the mandate, but doesn’t want to look like an Evil Conservative, he could couch his opinion in terms of personal freedom and then throw a rope in the general direction of Lawrence.

My favorite moment of oral arguments (so far) is this line from Justice Sotomayor:

JUSTICE SOTOMAYOR: Assumes the lack of competency of the government, which I don’t . . .

Of course she doesn’t.

But what Scalia does to her next–breaking in and answering on behalf of the respondent–is brutal:

JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response  is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.

So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

The Google vs. Facebook joust is interesting, but flying under the radar is a another contest that’s probably more consequential, since the companies it entails have real-world value: Walmart vs. Amazon.

I first realized how serious Walmart was about online commerce a few years ago when I notice that Walmart’s website not only carried a vast array of products in an easily navigable space and offered free shipping for in-store pickup–they also had a real-time inventory system showing you how many of any given item were in stock at stores near your. Walmart had clearly responded to Amazon the way Blockbuster should have responded to Netflix.

The extent to which Walmart has continued to engage is interesting. I suspect they’ll continue to push grocery sections into their stores, because perishable food is the ultimate hedge against online commerce. (In the same way sports are a hedge against the on-demand content model.) But my selfish concern is that in order to compete with Walmart, Amazon will have to become more like Walmart. You already see some of that with Amazon now offering Amazon store-branded, low-price products.

Dan Halper has an amazing video from Denmark. It’s three minutes long, but I wouldn’t waste your time if it wasn’t awesome.

(And stick until the very end, when the Danish guy really twists the knife.)

Joel Engel notes that the LAPD is about to start a formal program of instructing officers to not enforce a California state law about vehicle impoundment.

Because the LAPD believes that this law has a disparate impact on illegal immigrants.

Two thoughts:

1) This isn’t the LAPD coming to some internal, unspoken agreement about the enforcement of a particular law. Cops ignore lots of legal infractions all the time, based on reasonably well-defined situational expectations–speeding, loitering, soliciting. That all falls under the rubric of “discretion,” and allowing law enforcement officials some degree of discretion is a good thing. As a society, we ask for both equal protection of the laws and public peace, and we trust officers to strike the right balance using their best judgment.

But this is different, because it’s not informal, individual discretion–it’s policy. Promulgated and enforced by the law enforcement agency.

2) If the LAPD is allowed to officially ignore California state law, then it is, in effect, creating its own laws. Already in charge of law enforcement, the LAPD has now abrogated to itself law creation, making itself a legislative body, too. And if you don’t like the laws the LAPD comes up with, go vote them out of office. Oh, wait a minute . . .

It strikes me that this story should outrage just about everybody. Conservatives should flip out, because it’s a perversion of the law. Liberals should flip out because it opens the door to the kind of authoritarianism they see around every corner. And the legal and political classes should flip out because the cops are squatting on their property.

Yet I suspect that more parochial concerns will push this straight down the memory hole. Conservatives won’t want to criticize the police, because Cops Are Good. Liberals will like the policy itself, because it favors illegal immigrants. And the locals lawyers and pols will view it as less make-work for themselves.

Ben Domenech lays the wood in the Transom this morning:

Barack Obama is a Wilsonian. Not in the progressive policy sense, though that argument can certainly be advanced. I mean in method: he is a lecturer. He is best before a crowd, prepped with soaring rhetoric and planned oratory, adopting the role of the inspirational academic, the professor who made everyone love learning as a freshman but who, upon reconsideration, didn’t actually teach you that much. You see the continued faith in this method of politics as extended book tour illustrated in Obama’s response to the near-crisis price of gas: another speaking tour in front of varied photo ops to make the argument that yes, we are drilling, and no, if we drill more it won’t solve anything, and anyway it’s not my fault. http://vlt.tc/7an

It’s a reminder that this White House has more profound faith in a president’s personal ability to advance any cause than any since Wilson himself. The problem is that the history of this high opinion of onstage magnetism is very uneven, and it ultimately proved Wilson’s undoing. Consider September 1919, as described by David Pietrusza: “Wilson had once admitted that though he had trouble speaking one on one with anyone, he could convince virtually any crowd, and indeed had accomplished that throughout his career – as a teacher, university president, governor, and president. When he could not spellbind an audience – as he could not at Versailles and with small groups of senators – failure beckoned. Wilson decided to orate the League of Nations into existence, circumventing opposing senators, embarking on a grand whistle-stop tour designed to directly sway tens of thousands of their constituents… he commenced a grueling 22-day 9,981 mile speaking tour designed to save his League. He was not up to it.” Wilson’s health gave out, his speeches fell flat, and he went from someone likely running for a third term at the beginning of the tour to the sickbed by the end of it. At some point, the people tire of the lectures, and they become an ineffectual drag (as Clemenceau said of Wilson, he “talks like Jesus Christ, and acts like Lloyd George.”) http://vlt.tc/7bb  But the American people did re-elect Wilson before they tired of him, in 1916, by the narrowest of margins (277 electoral votes, 3,800 votes in California being the difference). He was helped by the fact that his Republican opponent, Charles Evans Hughes, was a politically unskilled prevaricator of the first order who attempted to be all things to all people, always on both sides of an issue depending on which audience he spoke to – to the point that the press gave him the nickname “Charles Evasive Hughes.” He was rather like an Etch a Sketch. http://vlt.tc/7am

Just go ahead and subscribe already.

Go. Now.