February 8, 2011


Oh, come on. Tribe’s rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn’t want him to do. Put more directly, it’s an assertion of authority: I’m telling you what’s right and if you don’t do it, you’ll be wrong. Could the Justices possibly yield to pressure like that? It’s crude to think that they would, isn’t it? It’s an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That’s what’s behind his rhetoric. I believe. Crudely.


Plus this: “Doesn’t Larry Tribe sound like your old man carping about welfare queens?”

UPDATE: Another conlaw professor emails:

Based on Akhil’s overwrought op-ed in the LA Times (Roger Vinson as Roger Taney) and Tribe’s op-ed that Althouse links to, it seems to me that the arguments against constitutionality are making supporters sufficiently nervous that they’re doing some battlefield preparation for the following narrative: a highly-partisan, closely-divided Supreme Court, taking its marching orders from the GOP and the tea party, invalidated the individual mandate in a shocking example of conservative judicial activism. It’ll be Bush v. Gore II: Electric Boogaloo.

BTW, will Kagan have to recuse? That sets up the interesting possibility of a 4-4 split; or, a 5-3 decision, which wouldn’t be so closely divided!

Interesting thought.

UPDATE: Heh: “What Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.”

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