Lots has been said recently about how the “conservative” justices would have to abandon their previous decisions in order to invalidate the individual insurance mandate. As this flurry of punditry cannot hope at this late stage to influence the Justices, and is also demonstrably inaccurate — which no one knows better than the Justices themselves — I think it unintentionally reveals the mandate defenders’ growing fear that they may well lose what they sincerely see as an “easy” case. They are now “preparing the battlefield” to characterize an adverse decision as unprincipled and “political,” just the way they did before the decision in Bush v. Gore was handed down, and after Citizens United was announced. There has been some pushback (here and here) against some particularly empty assertions along these lines made recently by Linda Greenhouse and Dahlia Lithwick, two left-of-center Supreme Court analysts of whom I am personally fond despite our frequent disagreements.
But Dahlia Lithwick’s latest effort to politicize an anticipated loss [to which Ilya also responds below] includes a distortion of an argument I made here a week ago that cannot go without response. She writes (bold added by me):
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.
If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.
In fact, as Volokh readers will recall, this is the opposite of what I blogged. My point was to show how the reasoning of Justice Scalia’s concurring opinion in Raich in no way bound him to uphold the mandate. In part, my analysis stressed that, while Raich involved an “as applied” challenge, our challenge to the ACA is a facial one. Perhaps easier to appreciate is that Justice Scalia’s argument concerned only the meaning of the word “necessary” in the Necessary an and Proper Clause, whereas our arguments accept this analysis while stressing the meaning of “to carry into execution” and “proper.” As his opinion in Raich says absolutely nothing about these these portions of the Necessary and Proper Clause, Justice Scalia is neither committed to accepting or rejecting our arguments. Perhaps most importantly, it is Justice Scalia who, above all Justices, who has most greatly stressed (in Printz) that the issue of “proper” is distinct from that of ”necessary.”
I admit that my analysis was somewhat complex legally and was intended for our legally sophisticated audience, rather than for the general public. But Lithwick is a Stanford law graduate and Supreme Court reporter and legal commentator who should be able to handle grasp the difference between claiming that Justice Scalia was not bound by anything he said in his opinion in Raich to uphold the mandate, and that he could “break from his previous opinions.” The readers of Slate deserve a correction.
UPDATE 1: I had one additional thought. Even if one is not persuaded by my arguments as to why Justice Scalia need not “break from” his prior decisions to invalidate the mandate, Lithwick’s distortion is to represent me as having claimed that he should or “could break from his previous opinions” when the whole point of my point was to contend — however persuasively — the exact opposite of this.
UPDATE 2: Phil Klein of the Examiner, one of the more astute journalist who as followed this case from the beginning made the same point yesterday that the defenders of the law doth protest too much:
It’s hard to believe that, at this point, anybody following the issue closely would dismiss the substance of the legal challenges to the health care law. But it makes sense from a political perspective. This is a pre-emptive attack by the left so that they can brand any decision to overturn the law as illegitimate.
He examines the coherence of several recent spinners. In addition to Greenhouse and Lithwick, there are Adam Winkler (UCLA) and Sahil Kapur of “Talking Points.”
More here by Peter Suderman of Reason.