Ed Whalen has an excellent post today on Bench Memos about Jeffrey Toobin’s chiding of Larry Tribe’s op-ed in which Tribe appeared to be cautioning the conservative justices to rule his way or be considered by him to be partisan hacks. Here is what Toobin said:
Larry Tribe wrote an op-ed piece about the constitutionality of the health care bill, and it was, it was advocacy disguised as analysis. And his point was, well, if Justice Kennedy were principled and following the rules set down in his own decisions, he would vote this way, but if he’s a partisan hack, he’ll vote the other way. Ah, and, ah, you know, I mean, no one loves Larry Tribe more than I do, but give me a break, alright? … [T]he way Larry argues is to argue to each justice. And he basically said everyone except Thomas, if they are principled and they follow their previous decisions, they will vote to uphold the law. And, you know, I’m a little skeptical. I think there are, I think there are four sure votes to uphold, but after that I think it’s a lot closer question.
Ed notes that Tribe basically copped a guilty plea Toobin’s charge the next day. Here is Tribe:
I tried to argue in the New York Times op-ed that this is not a case where the court is going to divide along the usual 5 to 4 line, with Anthony Kennedy being the swing justice. I thought it was going to be an overwhelming majority in support, and that it was kind of an insult to Kennedy and Scalia to say that just because the conservative wing of the Republican party has mounted a conservative attack and some lower courts have invalidated the law, that they would, in lockstep, agree with those lower court decisions. I have to admit that to some extent I, it was, I was hoping for a degree of self-fulfilling prophecy there. I was sort of speaking to my friends on the court, saying, “Don’t get taken in by this, it will really look bad, in terms of your historic record, when people look back and see that you’ve been sort of snookered by these arguments.” But who knows? Who knows whether they will agree with that?
Ed then offers his own trenchant comments including this:
No one making the case against the individual mandate is contending that Kennedy and Scalia (or Roberts or Alito) might vote “in lockstep” against the mandate “just because the conservative wing of the Republican party has mounted a conservative attack and some lower courts have invalidated the law.” The argument, rather, is that the mandate is constitutionally defective under the principles that those justices should embrace. There’s plenty of room for reasonable dispute over that proposition, but it’s unfair for Tribe to have maintained in his op-ed that the argument against the individual mandate is political rather than legal.
You can read the rest here: Jeffrey Toobin and Laurence Tribe on Tribe’s “Advocacy Disguised as Analysis” on Obamacare
Comments are closed.