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. I was deeply disappointed when he lost his case, as I was when I lost the Raich case (though the only votes I got in this “marijuana case” came from three of the “conservative” Justices: Chief Justice Rehnquist and Justices O’Connor, and Thomas). And he is still obviously wounded by this defeat:
The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. Some of these have been for liberal causes, some for conservative. I was lead counsel in a case that asked the Court to apply its newly announced will to enforce the limits on enumerated powers in the context of the copyright clause — viewed by many as a “liberal cause.” The Court said no, twice. The same with federal regulation of medical marijuana, which, the (said to be liberal) 9th Circuit had ruled, violated the limits on Congress’s power. The Supreme Court — including Scalia — said it didn’t.
So with these liberal cases, limits were not enforced. But when the cause is conservative, the willingness to limit Congress’ power comes alive. The Court has struck laws regulating guns — twice. It has struck a law that regulated violence against women. And if Obamacare falls, it will have struck down the most important social legislation advanced by the Democratic Party in a generation.
As the lawyer in Raich, I feel his pain. Really. I share his believe that the Court has been inconsistent in enforcing the enumerated powers scheme. Indeed, the reason why so many law professors on the left and right dismissed the challenge as frivolous is that they believed that the Court, in Raich, had abandoned any judicially-enforceable limits on the commerce power and — who knows? — they could still be proved right!
But here is the lesson Lessig wants us to draw from this: because the Court did not find limits in these “liberal” cases, the Court should no longer find any limits. That would be both constitutionally wrong and would contradict the arguments he made to the Court on behalf of limits on the copyright power. Unless, that is, he is saying that “Republican” justices should not invalidate “the most important social legislation advanced by the Democratic Party in a generation.” But any justice who actually thought this way would be acting entirely politically, thereby further undermining Lessig’s already shaky faith in the rule of law.
There is a better way for Lessig to reply to his students in the event the Court invalidates the mandate: sympathetically explain now, before the ruling, the legal arguments being made by the challengers, why these arguments prevailed in the Court of Appeals with a majority that included judges appointed by both Republican and Democratic presidents, and why they might have traction with at least some of the justices. But if he cannot do this, then he really has no choice but to conclude that “this Republican Court” truly is acting politically. Which only goes to show that, without coming out and saying so, this “more in sorrow than in anger” column is actually accusing some of the justices (but not others) — and Justice Scalia in particular since he is the focus of Lessig’s column — of acting politically should they vote the wrong way. With “rule of law” defenders like this, the Supreme Court does not need the Crits.