Tribal Libel

Esteemed Harvard Law professor Laurence Tribe writes a clever OP-ED for the New York Times tut-tutting the unconstitutionality of Obamacare and predicts the Supreme Court will do the right thing and toss aside the legal challenge to the government's power to mandate individual participation in the scheme.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Tribe attempts to set up a few of the justices in the court of public opinion. Antonin Scalia won't rule against the law because he is man of high intellect and integrity. Chief Justice John Roberts and Sam Alito, generally regarded as moderately conservative when it comes to their judicial philosophies won't vote against Obamacare because of the courts' obeisance to congress since the New Deal.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

Yeah, that "no man is an island" standard can be found in the poetry section of the "living constitution" written by Chief Justice John Donne.

No doubt Prof. Tribe is brilliant, or he wouldn't be on the faculty of Harvard and such an influential fellow. But even brilliant people do unbrilliant things. Like the private advisory letter he wrote to President Obama last year during the search for a Supreme Court replacement for Justice David Souter.

In arguing for his collegue Elena Kagen to get the nod, Tribe trashed Obama's eventual choice, Sonia Sotomayor.

Tribe wrote:

Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

It's seems to me only a crude legal partisan would write such a thing. But is it any wonder that in his most recent OP-ED effort Tribe didn't mention anyone in the lock-step liberal wing of the court. Sotomayor might not be nearly as smart as she thinks she is, but she's probably smart enough to know when she's been insulted by an Ivory Tower academic.

It would be a hoot to see her vote against Tribe's "no man is an island" standard. But I'm not counting on it. My own crude prediction is when the time comes the court will rule 5-4 in favor) of the constitutionality of Obamacare (thanks to the swinging Kennedy). All the more reason to vote for a Republican president in 2012.

In the meantime, under the Tribe doctrine, American citizens need not ask "For whom the bell tolls..." Under Obamacare, it tolls for everyone.

UPDATE: Ann Althouse weighs in.

Tribe writes:

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

Ann writes:

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.

Well played.

Clarification: Sotomayor was nominated to the court in 2009, not last year. Kagan was eventually nominated and took her seat in 2010.