Despite the fact that reading the entrails of those opinions suggest that they’d contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn’t whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.
If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.Now, the first question to ask is who is Dahlia Lithwick to so smuggly declare the absolute constitutionality of all aspects of the Patient Protection and Affordable Care Act? Well, she's a Canadian citizen with a B.A. in English from Yale and a law degree from Stanford. Fair enough. That's better bona fides than a great majority of pundits--including myself--who are currently waxing poetic on issues of constitutionality. But then, she also clerked for Justice Proctor Hug of the Ninth Circus...errr, Circuit. For those unfamiliar with the Ninth, that would be Court of Appeals with--by far--the most overturned decisions of any lower Court in the nation. If nothing else, we know the ideology behind her training, then.
Regardless, it's a heavy declaration: that the Act is fully constitutional as a matter of fact. And really, she should know better given her background. Ms. Lithwick makes a finding of fact on the basis of her opinion and that of a handful of others alone. Hardly the methodology of a legal scholar.
As to her assumption about the Court, the idea that the Act might be struck down for ideological reasons alone, even though the Judges know such a decision would be wrong, she's dead serious about this:
That brings me full circle to the court’s five conservatives. Is it possible that they are sufficiently ideological and political that the grim joy of sticking it to the president and the Congress will lead them to strike down the law? Of course.Her implied evidence for such a state of affairs are the two cases mentioned above: Bush v. Gore and Citizens United v. Federal Election Commission. In Ms. Lithwick's worldview, these two case were wrongly decided and represent the worst transgressions of the last decade or so:
Consider a couple of relevant data points:
We know that the court took a huge public opinion hit after Bush v. Gore and again after Citizens United. But that doesn’t necessarily help the administration. Because in this case the American public believes the health care law is unconstitutional. The most recent polling I have seen shows that over 50 percent of the American people—including many who benefit from popular provisions of the law—still believe it’s unconstitutional.See that? Bush v. Gore in 2000 was a black eye for the court, apparently unmatched until Citizens United in 2010. Where was Ms. Lithwick in 2005, we must ask? Because that is the year of Kelo v. City of New London. Surely, her head is not stuck so far in sand as to make her ignorant of the backlash from the Kelo decision. After Kelo, States began drafting laws to prevent the usurpation allowed by the Court, people engaged in various protests against the Justices who had voted for the decision, and an entire body of writings appeared discussing the issues of the case. And for the most part, the public disagreed with the decision. 80% of the public, in fact. Yet somehow, Ms. Lithwick fails to mention Kelo, skipping from 2000 to 2010, in looking at poorly received cases.
I say "somehow," as if her reasons were unknown, but that's not accurate. We know them. Ms. Lithwick agrees with Kelo and accepts the basic proposition at issue, with regard to the extent of government control over personal property. Note that her review of Little Pink House--which I just cited--was a bit of a touchstone, as she was caught making some basic errors. And I've talked about Little Pink House previously, including the remarkable development of a Connecticut Judge admitting that he erred in his ruling on the case:
Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4-3 majority against Susette and her neighbors. Facing me, he said: "Had I known all of what you just told us, I would have voted differently."But the point here is that Dahlia Lithwick is an ideologue of the first order. She has her own agenda; she's made it clear on numerous occasions. Her piece is fundamentally dishonest, insofar as it presents her own opinions as legal facts that are not in dispute, when such is not the case at all. And in assessing the case about to go before Congress, she ignores Kelo because legitimate points are made therein, with regard to the extent of government authority. And those points will be raised again. Rather than worrying about Bush v. Gore, the backlash to fear is the one that may mirror the public's reaction to Kelo.
Ms. Lithwick rightly notes the role of the Tea Party in making the case against Obamacare. She--and others--would do well to remember that the movement was built on things like the Kelo decision. Say "Kelo" to a typical tea-partier and see what you get. Ms. Lithwick doesn't think the Affordable Care Act case is all that significant. She couldn't be more clueless in this regard.