Monday, April 16, 2012

if the republican justices do not agree with me they will be acting politically

volokh | Well, that is not exactly what he says. Instead, in Why Scalia Could Uphold Obamacare, Larry Lessig actually says that if the “conservative” Justices do not accept his reading of their prior decisions, his students and other cynics would think the justices were acting politically, and he would be powerless to defend the Court, which would sadden him greatly.
Most non-lawyers have been bemused by the confidence that constitutional lawyers once had about the Supreme Court’s likely decision in the Patient Protection and Affordable Care Act (aka, the Obamacare) case. The idea that this Republican Court would not give the Republicans their victory seemed silly to most, or at least naive. What possible reason would there be to imagine the Court would hold its punches?

But indeed, there was a confidence, at least among those whose career is focused upon the intricacies of commerce clause jurisprudence, that the Court would uphold the statute. When I read that my colleague Charles Fried – Ronald Reagan’s solicitor general — said that he would eat his hat if the Court struck the statute, I didn’t think Fried was being brave or reckless: the point seemed too obvious to remark. Whether wise or not, Obamacare is plainly constitutional under the Court’s existing precedents. That’s not to say the Court couldn’t make up a new rule by which the law was deemed unconstitutional. But against the history of the repeated embarrassments that the Court has suffered as it has tried to police Congress’ commerce authority, it seemed genuinely unimaginable that it would again make the same mistake. [My bold added.]
For my pre-argument analysis of why Justice Scalia’s Raich concurrence in no way bound him to uphold the insurance mandate in this case of first impression see Understanding Justice Scalia’s Concurring Opinion in Raich. Skipping over Lessig’s analysis of this Raich decision (in which he considers none of these contrary legal arguments, while he relies uncritically on Einer Elhauge’s questionable examples of previous “purchase mandates”), Lessig offers this reason why he is pained by the thought that the Court might strike down the mandate
So to say Scalia’s Raich test should yield an obvious and clear answer is not necessarily to say that five justices will vote to uphold the law. Scalia could change his test. The Court could launch itself on a new mission to supervise the scope of Congress’s economic authority.

But here, then, is a second recognition that leads both scholars on the right (like Fried) and scholars on the left (like Laurence Tribe) to pray that the Court doesn’t take this disastrous step. Fried and Tribe (and I and many others) want the ability to present the work of the Court in a way that belies the common but (we believe) uninformed view that all law, especially constitutional law, is just politics. If the Court strikes this law, then that hope fades. . . .

When the Frieds, or Tribes (or Lessigs) of the world want to insist that “it’s not all just politics,” the cynics (including most forcefully, our students) will insist the facts just don’t support the theory. Even I would have to concede the appearance that it’s just politics, even if I don’t believe I could ever believe it.

Larry Lessig became a hero of mine with his stalwart and brilliant defense of finding judicially-imposed limits on the Copyright Clause.


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