I guess Law Professor Gerard Magliocca has been reading the latest polls:
So I’ve been drafting an article on “The Obama Generation and the Supreme Court.” (I posted the Abstract here in July). The premise of that paper was that the 2008 election was an electoral realignment, and I was then going to assess the likelihood that the Court would strike down the individual health insurance mandate. I knew that the GOP would win seats this fall, but I figured that the victory would be within historical norms for a first midterm.
Er . . . now I’m thinking that I was wrong. The Republican wave is looking big–really big. Of course, things could change in the next two months. One thing, though, is clear. If the Democrats lose both houses of Congress after going into the election with such large majorities, then calling 2008 a realignment would be absurd. (You might say that this is the academic version of “You’re gonna need a bigger boat.”).
Suppose November is a train wreck for Democrats. That opens up another possibility that I’ve posted about. Perhaps the President is the second coming of William Jennings Bryan. In other words, his chief achievement will be the backlash that he generates. Granted, that thought is fresh in my mind because I have a book coming out about that period, but you could make the case on other grounds. That too, though, runs into a problem. It assumes that the GOP will win in 2012. If not, then that analogy doesn’t work either.
I guess one advantage of being a corporate law professor is that the Tea Party's unlikely to ever derail one of my law review articles.
