Friday, February 11, 2011

What's law got to do with it?

In recent op-ed, both Akhil Amar and Larry Tribe defended the constitutionality of the health care law nd criticized judge Vinson's recent decision striking it down en toto.  In response, conservative and libertatian critics have have both defended the opinion and fired ad hominen attacks.

Here is a sampling:

According to Tim Sandefur, Amar's op-ed is an "embarrassing" attempt to defend the health care law, "and with all the bluster and cheap rhetoric of someone who has no serious case to make."

Here is Ann Althouse's concluding thought, on the first of three posts on Tribe's op-ed:
Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity. 
And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.
This from Joseph Lawler:
My problem is not with Tribe but with the Times. The paper identifies him only as "Laurence H. Tribe, a professor at Harvard Law School, is the author of 'The Invisible Constitution.'" They fail to point out that Tribe worked for the Obama administration at the time when the Obama health care law was passed. Surely that's a conflict of interest worth disclosing.
And from Ilya Shapiro:
Yale law professor Akhil Amar, one of the nation's leading constitutional scholars and a "progressive originalist" of sorts -- he joined with Randy Barnett and others on a brief supporting our view of the Privileges or Immunities Clause in the McDonald case -- had a fiery op-ed about Judge Vinson's decision in the Sunday L.A. Times. More than fiery; I'd say intemperate, uncharacteristically so for the mild-mannered Prof. Amar.
I must confess that I read these two op-eds very differently than these critics did.  This is a clear case of cognitive dissonance.  And there is the big problem with the health care litigation. There are clearly two competing constitutional realities in play, in direct tension with one another.  One reality wishes to defer to Congress on these types of questions, while the other reality worries that the power of Congress will cease to have any limits.

So here is the question: when the issue reaches the Supreme Court, one reality will trump the other.  It has to.  But does anybody seriously believe that the Court will reach its conclusion on the basis of any and all relevant legal sources?  Put differently, why should we expect the Roberts Court to understand and approach this question any differently than professors and commentators at large?

For one, I'd like to believe that the justices will not allow their personal preferences to influence their positions on the case.  In the interest of full disclosure, I must point out that I would also love to own a flying pig.

Not to burst my or anybody else's bubble, but neither one is going to happen.

1 comment:

  1. When you say "personal preferences," are you referring to judicial philosophies, or political preferences?

    There's obviously an overlap of sorts there, but in general, one might expect Republican-appointees to be more hostile toward broad assertions of federal power, and Democratic-appointees to be more favorable toward the same.

    So if the Court splits in a 5-4 way along partisan lines, is it necessarily political -- as in, the 5 voting to strike down a law simply because Democrats passed it? -- or a product of conservative judicial philosophy?