Today the New York Times published an op-ed by the super-prominent Harvard law professor Laurence Tribe, arguing that the Supreme Court will not strike down Obamacare. Tribe does a little vote-counting, with some leading speculation about the conservative judges’ votes:
To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
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.
And law-blogger Aaron Worthing asks Tribe:
Aren’t you laying this all on a little bit thick, Larry? Do you really think that the Supreme Court is so vain as to want or need your adulation or to fear the denunciation you signal will come from you if they deign to disagree with you? And do you really think they are too stupid to see what you are doing?
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.
What makes the omission grating is that the position he held at the Justice Department, “Senior Counselor for Access to Justice,” was an office that he asked Obama for as a personal favor, and which was created just for him. Since he left the office in December, the department has not bothered to replace him.
[I]f I might add a very brief personal note, I can hardly contain my enthusiasm at your first hundred days. I don’t underestimate the magnitude of the challenges that remain, and I continue to hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment at the moment is one of enormous pride and pleasure in being an American at this extraordinary moment in our history. [Emphasis added.]
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