The American Spectator

THE NEXT DAY the president tried to clarify, saying: “We have not seen a court overturn a law that was passed by Congress on a [sic] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.”

Wrong again. Lochner was decided in 1905, not the 1930s. The court did strike down some New Deal legislation, including the National Industrial Recovery Act in A.L.A. Schechter Poultry Corp. v. U.S. (1935). And Lochner, which involved a New York state regulation, had nothing to do with Congress’s powers under the Commerce Clause.

How could a onetime professor of constitutional law be so ignorant? He had answered that question as part of his initial remarks: “That’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers.” He might have added: and journalists like Linda Greenhouse. All those authorities told him the other side had no argument, and he believed it.

In 2005, Slate’s Dahlia Lithwick, a leftist legal journalist in the Greenhouse mold, scoffed at the idea of the Greenhouse Effect. She called it “a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it’s patently untrue today.”

I’d say it might have been patently true once and is somewhat untrue today. But on the whole, it seems Lithwick was right. The Greenhouse Effect has given way to the Taranto Principle.