[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Instalink! Thanks, Professor Reynolds! And as I wrote this post, Althouse has written two more posts on Tribe’s piece, here and here.
Yesterday, it was Akhil Amar’s turn inside the barrel (metaphorically, Mr. Johnson). Today it is Laurence Tribe’s opportunity. As you may or may not know Tribe is a respected Professor of Law and is generally considered one of the giants of the profession. Still his op-ed in the New York Times, On Health Care, Justice Will Prevail is frankly wrong on numerous levels and deserving of a fisking. Whether I go easier on him than Amar is your call.
Tribe spends the first paragraph more or less saying people are making bets on how the court will rule on Obamacare, and then writes:
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
So he starts right off with the myth that Bush v. Gore was supposedly a one-off, a myth I already demolished, here. And bluntly the real reason why some on the left supposed that Bush v. Gore was political was the fact that it was George W. Bush v. Albert Gore and the upshot of that decision was that Bush became president. However they ruled, the Supreme Court was inevitably going to be accused of ruling based on political preference. Which is not to say that this impression was fair or right, only inevitable. Because it was the left’s ox that was Gored, the left is still convinced that Bush stole the election with the help of the Supreme Court.
It certainly doesn’t help that the left had long ago convinced itself that the text of the Constitution, or its original meaning as understood by the public at the founding, didn’t matter and had fully projected that attitude into their views of the most conservative members of the court. I remember being at Yale when Bush v. Gore came down and being one of the few voices to point out the hypocrisy of their complaints, saying (paraphrase):
What did you expect? This school has spent the last thirty years advocating that the courts should be nakedly political actors, that they should disregard the Constitution, disregard inconvenient precedent, disregard the will of the people and decide for themselves what was best for the little people. And now you are accusing them of what? Listening to you? You’re not angry that they might have ruled based on their political whims. You accept that as inevitable and even good. You’re just angry that you lost.
Bush v. Gore demonstrates that in our society we need one institution that is neutral; that is truly above politics; that just follows the law and that is it.
By the way, when you were watching the game last Sunday, how did you think the referees should have made their calls? Should they have neutrally applied the rules as written without regard to team preference? Or should they have liberally interpreted the rules so that the team they felt deserved to win would be more likely to win? Should they have written new rules as the game progressed, to deal with the changing mores of the NFL? Should they have rendered certain rules a nullity?