The Spectacle Blog

Tribe-al Lawfare

By on 2.11.11 | 2:53PM

Hey, remember that Laurence Tribe op-ed dripping with condescension toward the Supremes, sniffing how of course they are far too bright to rule against ObamaCare's constitutionality?

It's standard fare -- in the week before argument on Massachusetts v. EPA, the 'global warming' case the Washington Post put on the full-court press of unsigned editorials, op-ed pieces, and human interest stories on the horrors waiting to befall Swiss ski moguls when their fortunes are stolen from them by the caprices of industrial society (which press I covered here). Can't leave any doubt what the Georgetown set would think of you if you ruled the wrong way!

Well today, despite that helpful assist from Tribe which we thought might indicate an instructive brief was also forthcoming when ObamaCare gets to SCOTUS, we read the following in Greenwire (subscription required):

CLIMATE: DOJ moves to limit eminent law professor's role in emissions case (02/11/2011)

The Justice Department has intervened to minimize the role of prominent Harvard Law School professor Laurence Tribe in an upcoming Supreme Court case that touches on the volatile subject of climate change.

Tribe, a renowned legal scholar, had hoped to be listed as counsel of record for various groups, including the Consumer Energy Alliance and the American Trucking Associations, which wanted to urge the court not to rule that federal common law can be used to regulate greenhouse gas emissions.

The case, American Electric Power v. Connecticut, will be argued April 19. The Obama administration is also arguing that common law is not the right mechanism to regulate greenhouse gases (Greenwire, Feb. 1).

DOJ requested that Tribe not be listed as counsel of record, meaning his name is not featured on the brief the justices will see.

The brief with Tribe's name on it had already been filed at the Supreme Court last week when DOJ intervened.

Subsequently, a new brief was filed with Tristan Duncan, a partner at Shook, Hardy & Bacon in Kansas City, Mo., listed as counsel of record.

DOJ took action for legal reasons, spokeswoman Tracy Schmaler said.

Until December, Tribe served in the department as a senior counselor focusing on access to justice issues.

Schmaler said Tribe is bound by a law that bans former senior officials from seeking to influence their former employer "in connection with any matter on which such persons seeks official action by any officer or employee of such department."

...[Duncan] noted that the intent is to influence the Supreme Court, not DOJ.

...Tribe himself declined to comment.

Maybe this curious interpretation will have expired by the time ObamaCare gets to the Supremes.

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