Academic Reaction to Oral Argument on the ACA Challenge

I just read the blog post by Michael Greve to which David linked below in which Michael describes the Yale Law School conference on Jack Balkin’s marvelous new book, Living Originalism:

It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien regime of the Second Republic. A judicial coup d’etat. The Constitution in Exile. (Never mind that the plaintiffs’ briefs explicitly affirm that Wickard was rightly decided.) Much handwringing arose over the elite media’s commitment to be fair to both sides even when, as here, there is no reasonable other side. The plaintiffs’ briefs are beneath contempt. Randy Barnett is a creature of The New York Times and its addiction to a false neutrality.

On the latter point, I have been saying for some 2 years now that the “mainstream” media coverage of the ACA lawsuits has been remarkably fair and balanced throughout.  Not only have they been reporting what both sides say, and accurately conveying the color and substance of oral arguments below, but the reporters seem to have a more sophisticated grasp of the legal arguments — and their relative merits — than is evinced by some law professors.  In this category, I include numerous reporters from the Washington Post, AP, Reuters, Bloomberg,  Politico, the Wall Street Journal, and the New York Times.   But what else would a “creature of the New York Times” think?

The law professors’ reaction reported by Michael is no surprise.  We have seen it before.  Regardless of the outcome of the ACA, this interim reaction to critical questions from the Justices at oral argument is revealing and worth pondering.  I think a number of factors are at play, but Michael puts his finger on the most important:  “I can explain it only this way: the resistance is to the very notion on any limit, qua limit.”  I have been meaning to blog about this for a while, but the subject is a touchy one and the spirit has not yet adequately moved me.  I share Michael’s instincts:  A ruling invalidating the mandate would strike at the constitutional “world view” of established legal academics on the left and many on the right too.  That it why the traction of the challenge has taken them by surprise, as well as their visceral reaction to oral argument.   Of course, if the Supreme Court upholds the ACA, all will be right with the world.

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