Harvard lawprof Laurence Tribe predicted the way the Supreme Court would resolve the Obamacare case.

Long before the case was decided, he clearly and repeatedly stated the taxing power argument that Chief Justice Roberts ultimately adopted:



That's a lengthy video, but it's well worth watching. It has an amusing segment with Rush Limbaugh emphatically stating that nobody predicted what Roberts would say. Maybe "predicted" is the wrong word. Maybe what Tribe did was influence Roberts (his former student).

Laurence Tribe says Obama "didn't say what he meant" about the Supreme Court and needs to "clarify."

"I don’t think anything was gained by his making these comments and I don’t think any harm was done... except by public confusion."

ADDED: Remember when Larry Tribe pushed Obama (his former student) to nominate Elena Kagan to the Supreme Court because "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind"?

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

I wonder how well Kagan is doing scaling the convolutions of Kennedy's brain these days. As I said at the time: "if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played."

"Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises?"

Scott Douglas Gerber, commenting on the reaction he got to his book "First Principles: The Jurisprudence of Clarence Thomas."

[H]e received a note from a friend who wrote, “I think it is a very worthwhile venture, but one fraught with potential problems.”

"'What potential problems could there be?’ I asked myself upon reading this," Gerber said. "Has academia come to this? Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises? Note that this does not mean I am supporting Clarence Thomas; it does mean, however, that I am not against him."

By the way, I can't find Gerber's book on Amazon or in the iTunes bookstore. My Amazon search for the title turned up a bunch of mismatches, led by "Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives." Hmmm. [ADDED: The article at the link got the title of the book wrong, and Amazon's search tool isn't good at guessing its way around problems like that. Here's the book, which is called "First Principles," not "Founding Principles." Unfortunately, you can't get it in ebook form.]

Anyway, as the first link above shows, Clarence Thomas marks his 20th year on the Supreme Court this year. Oh, to have been blogging then!

Thomas’ critics strove to mischaracterize his views about the Declaration of Independence during his nomination process in 1991, according to Gerber.

“For example, Harvard Law Professor Lawrence Tribe wrote in a scathing “New York Times” op-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation’s history. Quoting Tribe: ‘Most conservatives criticize the judiciary for expanding its powers, creating rights rather than interpreting the constitution. Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the founders’ natural law philosophy… which he maintains is revealed most completely in the Declaration of Independence. He is the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.’

“What critics such as Tribe fail to appreciate was that Thomas was articulating the standard individual rights interpretation of the Declaration, an interpretation shared by Jefferson, Lincoln and Rev. [Martin Luther] King Jr.,” Gerber said. “To secure these rights, the Declaration proclaims, governments are instituted among men.”

Here's that Tribe op-ed in its natural habitat. If only blogging had been around back then, what would we lawprof bloggers have said? It's nice to have Gerber's book — except that it's impossible to get (in the sense that I can't download it into my computer right now. I do have a library!). But the ability to blog these things in real time is something that we now see as an essential check on liberal media. It's frightening in retrospect to think of the one-sided manipulations we simply endured back then.

I'll write a law review article — perhaps one thought — and it might come out in less than a year, if I'm lucky. Oh, but what if the law reviews are looking for "partisan pamphlets"?

Conservatives were boxed in, and blogging opened the box.

Does asking for 5 1/2 hours of oral argument mean that the Supreme Court thinks the Obamacare case is difficult?

That's the Wall Street Journal's preferred interpretation.

The "constitutionality" of the Obama health care law, Harvard Law School's Laurence Tribe wrote in the New York Times earlier this year, "is open and shut," adding that the challenge against it is "a political objection in legal garb."

In announcing yesterday that it will consider the law's constitutionality, the Supreme Court said it would give an historic five-and-a-half hours to oral arguments. Perhaps by his Cambridge standard, Mr. Tribe thinks the nine Justices are a little slow. We prefer to think this shows the Court recognizes the seriousness of the constitutional issues involved. It makes those who cavalierly dismissed the very idea of a challenge two years ago look, well, constitutionally challenged.

The argument for upholding the law rests on a facile application of an existing line of precedent: Look quickly and see that this case is another one of those cases and stamp the law constitutional. Characterizing the case as easy is thus part of arguing for upholding the law. That's what Tribe and others have been doing. Many of the lower court cases have, unsurprisingly, taken that route.

The Supreme Court, which controls the precedents, has to choose between that easy course and drawing a line. If it draws that line and takes down the individual mandate — and perhaps the entire health care reform — it will need to inspire our belief in the truly judicial nature of its exertion of power. To set 5 1/2 hours of oral argument is to command a dramatic performance in the Theater of Law. That will help us see the result as the product of genuine legal process.

Now, our belief in the truly judicial nature of its exertion of power is important whether the Court strikes down the law or not. All that has happened so far is that the Court has rejected the presentation of the case as easy. That doesn't mean the Justices are not perceiving the case as easy. It only means they don't want you to see it that way.

Laurence Tribe on the absurdly strained notion that the debt ceiling violates the 14th Amendment.

A NYT op-ed:

Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might... nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling....

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default....

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution....

Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?

Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in... empathy.

Whatever happened to the "purchase" Larry Tribe thought Elena Kagan had on Anthony Kennedy's brain?

Remember that embarrassing sentence in Larry Tribe's letter pushing President Obama to nominate Elena Kagan? "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind." Remember discussing that in the context of a case called Arizona Christian School Tuition Organization v. Winn when it was argued last fall? I wrote:

This is a case about tax credits for contributions made to private tuition funds that make grants to students who go to private schools. Many of those schools are religious and some of the qualified funds only make grants to students who go to religious religious schools. [Lyle] Denniston begins his description [of the argument] with a claim that he detected Elena Kagan's purchase on the mind of Tony Kennedy (a subject we were just talking about the other day). Denniston says Kagan and Kennedy — the 2 Ks (sounds like trouble!) — "took crucial, reinforcing roles." I don't see much support for that point.

This case has a substantive Establishment Clause issue — whether government is subsidizing religion — and a threshold issue about standing — whether taxpayers can sue over this. These issues are linked because they both may depend on whether a tax credit turns the privately donated money into money from the state....

Today, the Supreme Court came out with the decision in the case and there's Kennedy writing for the majority and Kagan  —with (guess who?) Ginsburg, Breyer, and Sotomayor — writing for the dissent.

The majority said there was no standing, which means that it did not reach the Establishment Clause question.

ADDED: Justice Kennedy makes the key distinction between this case and other cases (notably Flast) in which taxpayers had standing to challenge taxing and spending laws using the Establishment Clause:

[T]ax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience. In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connec­tion would exist even if the conscientious dissenter’s tax liability were unaffected or reduced. When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative. And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accor­dance with their own consciences.

Dissenting,  Justice Kagan states the opposing position:

Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations. Taxpayers who oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy.

Still worse, the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely because appropriations and tax breaks can achieve identical objectives, the government can easily substitute one for the other.

I love the clarity of Kagan's writing. But it will take more than that to gain purchase on Kennedy's brain. The truth is that Flast is out of line with a whole lot of other standing cases. Distinguishing this case from Flast may seem like a strain, but it's a more a matter of not letting the anomaly grow. Justices Scalia concurs, with Justice Thomas, to say Flast should be overruled altogether, and not just costrained. Scalia is pulling on one side, and Kagan on the other, and Kennedy maintains his purchase on the center.

I have to take a 3rd shot at Larry Tribe's op-ed: That big word "choice."

Here's my first shot and here's my second shot at Larry Tribe's op-ed purporting to say why the Supreme Court will come down in favor of the constitutionality of the individual mandate to buy health insurance. I didn't set out to write one post after another about the op-ed, but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights. Tribe's op-ed has nothing to say about abortion. I wonder if he would have written it differently if abortion had crossed his mind, but I can't believe that a constitutional law professor would overlook the abortion-related significance of the word "choice."

Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same word from case to case. Let's look at how Tribe talked about "choice" and health insurance and then see how that squares with what "choice" is supposed to mean in the abortion context.

In today's op-ed, Tribe wrote:

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

You can see that Tribe has given a very broad definition to the notion of choice. People bumble along, doing what they want, aware of the chance of an undesirable outcome, vaguely expecting to take advantage of an out that isn't very nice. That's a choice. It is something real and specific that the individual has done. Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.

Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if they need emergency-room care get that they can’t pay for get pregnant, the public will pick up the tab they can get an abortion.

Of course, the Supreme Court case law does not present the woman's right to choose in terms of taking responsibility at that early point. It says:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it's too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.

I realize there are many distinctions that can be made between health insurance and abortion, but there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law. It seems to me that society, acting through a legislature, may have a preference about when an individual should be required to make a choice, and that the individual, valuing autonomy, may want a broader range of choice than the majority would like to permit. When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system."

That's a sentence I've already quoted in the previous post, but focusing on it in isolation, I see it's a stunning example of something I've been observing more and more: Today's liberals sound like yesterday's right-wingers.

Read that sentence closely: "Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system." Doesn't Larry Tribe sound like your old man carping about welfare queens? There's no pity for people who are struggling to cover their basic expenses: Ah, don't be a bleeding heart — Larry/The Old Man scoffs — these people are choosing to sponge off the rest of us.

Tribe had to block out the possibility that people without health insurance aren't really making a choice. After paying for the things they think they need, they just don't have enough money left to cover a major expense that doesn't bring them a present good, only insurance against something that could go wrong.

Yeah, but that's why we need to force them to take responsibility, make them put insurance into their household budget along with the extra cupcakes and cars they're always blowing their money on — Larry/The Old Man snaps back at you.

Maybe now, you're thinking The Old Man was right! I'm not saying he wasn't. I'm just saying the liberals of today sound like The Old Man who used to enrage us with his heartlessness and his cynical observations about the lives of the people we thought of as vulnerable and unfortunate. That doesn't mean today's liberals are wrong. And I'll leave it to you to tease out the corresponding observation about the conservatives of today. Are they saying things that we Boomers, in our hippie days, used to scream back at The Old Man?

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 

Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!

Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 

I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.

But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 

Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)

The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."

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.

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.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

"Her womb was a barren desert in which my seed could find no purchase."

April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."

What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?

But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

"Chronicle Review Admits Bellesiles’s Story is False — Blames Student, not Bellesiles."

"Bellesiles is a demonstrated scholarly fraud, and doesn’t deserve the benefit of the doubt that many people are giving him. Once you’ve been busted for making stuff up, you need to be sure that what you publish is reasonably accurate. Bellesiles illustrates, once again, that he cares more about the narrative than about being sure his facts are correct, though I suppose that passing on other people’s fabrications is arguably a modest improvement over creating his own."

When do we believe the teacher who blames the student? Ask Elena Kagan.

"What's a little matter like the Constitution among friends?"

The Emoluments Clause.

It's strange the way we feel we can ignore -- or massage away -- words of the Constitution that don't seem to serve the purpose for which they were written.

But since it is the way we are, I would like to encourage Arnold Schwarzenegger to run for President.

AND: Lawprof Larry Tribe is giving massages over here:

My recent book, "The Invisible Constitution" (Oxford University Press 2008), argues that much of what we both do and should regard as the United States Constitution is neither expressed by, nor plausibly inferable from, the document's text. The book develops six models -- geometric, geodesic, global, geological, gravitational, and gyroscopic....

Blogging lawprofs, go back to your law review articles.

Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor's opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there's so much reason to criticize the administration.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.

Yeah, please tuck your criticisms away where no one will see them.

But It's [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English? Are you saying the law professors who dared to engage with the opinion and scrutinize it on their blogs were mainly showing off and trying to further our careers? Are you saying that ordinary people who don't read law reviews and who are trying to understand current events shouldn't have the benefit of law professors helping them understand an important new case, that we're distracting them from their proper job of despising the President? You want people to concentrate on the judge's conclusion and not to question the judge's reasoning and analysis? To do that is to bow to authority. If that's what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he's doing. Why shouldn't people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?

IN THE COMMENTS: Gahrie says: "Tribe's response comes from the same well of thought that Rather's response to the TANG memo forgeries did." Oh, yeah. Fake but accurate. She reached the conclusion we know is right, so...

MORE IN THE COMMENTS: David Walser writes:

I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He'd like the public to quit looking at the man behind the curtain. That can't happen if the rest of the professorate keep calling attention to The Great Judicial Oz' failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That's a greater risk to all Tribe holds dear than the matters that were at issue in this case.

UPDATE: This post is the main subject of the new podcast.

"Revealing the operational content of nominees’ constitutional commitments."

Yale Law Journal's Pocket Part has some legal scholars discussing what sorts of questions the Judiciary Committee should ask Samuel Alito next week. The lead article by Robert Post and Reva Siegel says:

Senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments.

"Revealing the operational content of nominees’ constitutional commitments"?

Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like 'liberty' or 'equality,' whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a Senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.

Well, I would love for the nominee to explain the details of constitutional law like this, to reveal his mind at work. But I find it hard to picture the Senators allowing him the time to lay things out. I can just see them interrupting him and trying to restate things in short, hot-button style so they can get back to their usual preening bloviation. "Sustain a colloquy"? Would they? I mean, assuming the nominee would engage like this, would the Senators keep up their end? I think they'd be frightened out of their depth and would skitter back into the warm shallows of their own self-interest.

Larry Tribe, Erwin Chemerinsky, Randy Barnett, and Steven Lubet have responses.

Nice caricature of Alito at the link, too.

Cries of pain heard.

The Washington Post's "Campaign for the Supreme Court" blog linked to my post about Alito, the FMLA, and Larry Tribe. This led one "SK" to write:

While I think many criticisms of Alito have been overstated, I wish you wouldn't have given Ms. Althouse the tie of day. Her ability to talk with people who may disagree with her rivals that of a four year old.

Well, maybe a four year old lawprof! I guess SK is referring to the way I wouldn't let Max (in the comments) get away with obfuscation. I kept trying to focus him on the real issues and rejecting answers that were not responsive. [ADDED: Or was it just the way I pointed out the Tribe was wrong?]

Then there's Roy at Alicublog, who linked to this post of mine (which concludes "Where are the passionate, Brennanesque liberals of yore, who really believed we have rights? Is that belief becoming solely a conservative notion?"). He writes in an update (after a wisecrack that reveals he seems to know nothing about Legal Realism, Critical Legal Studies, and ordinary left-wing political talk about law):

She teaches law? Jesus fucking Christ.

One needs nerves of steel to stay in the debate about law these days.

CONFESSION ADDED: For the longest time I was assuming that "the tie of day" was some sort of idiomatic expression I just didn't happen to know. Then a commenter made fun of the phrase and I realized for the first time that it was supposed to be "time of day." I'm sitting here in a café now laughing like a fool!

Alito and the Family and Medical Leave Act -- Part 5.

Harvard lawprof Laurence Tribe on the FMLA case:

YOU CAN'T help doing a double-take when you read Judge Samuel Alito's opinion holding Congress powerless to compel states to provide family medical leave to their employees. It was a position the Supreme Court rejected in a nearly identical case when it held three years later that the 14th Amendment confers such power by authorizing Congress to enforce each state's duty to accord ''equal protection of the laws."

The evidence and legal arguments hadn't changed when Chief Justice William Rehnquist, writing for the 6-3 majority, saw what Congress had seen: that women and men are unequally protected in a world still shaped by the ''pervasive sex-role stereotype that caring for family members is women's work." The court accordingly held Congress empowered to ''dismantle persisting gender-based barriers to . . . women in the workplace." Why, then, did the deliberately deferential Alito, after reading the same text, history, precedents, and factual data, see no gender discrimination for Congress to dismantle?

Talk about doing a double take! Is this really by Larry Tribe?

The "nearly identical" Chittister case didn't involve caring for a family member. It involved self-care. Tell me, Professor Tribe, when men are sick, don't they stay home? I'm really having a hard time seeing what gender discrimination Congress is dismantling there.

The Supreme Court's case (Hibbs) was about caring for a family member, but even there, as I've written here too many times already, the Court was changing the way it applied its own test, a test that Alito was bound by when he decided his case. The Fourteenth Amendment law in question requires that Congress be providing a "congruent and proportional" remedy for the states' violation of Fourteenth Amendment rights. It was actually extremely hard to portray the states as violating Equal Protection in a way that went with the leave benefit, as Justice Kennedy -- no conservative firebrand -- explained in his dissent.

Anyway, I'll give Tribe credit for not saying that Alito found the Family and Medical Leave Act unconstitutional, though he's hiding the ball by not admitting that the commerce power supports it, and that Alito's case was only about whether an individual could sue the state for retrospective relief. Under Alito's opinion, states are still bound by the FMLA and their employees can sue to get their jobs back if the states don't follow these requirements.

Tribe's eagerness to slam Judge Alito shows.

UPDATE: There are two post-Hibbs court of appeals cases that say the self-care provision doesn't fit the Fourteenth Amendment -- that is, the result in Chittister is still correct.

MARY TOUVELL v. OHIO DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, 422 F.3d 392 (6th Cir. 2005):

[W]hile Hibbs found that Congress had adduced sufficient concrete evidence of discrimination by the states regarding the availability and consequences of family-care leave, there is no equivalent evidence that the self-care provision of the FMLA was intended to, or did, target similar discrimination. On the contrary, the self-care provision appears to have been social legislation designed to protect the seriously ill and their families regardless of gender. While this may be an admirable goal, it is not one that permits Congress to abrogate the Eleventh Amendment immunity of the states from private suit for damages.

KATHLEEN BROCKMAN v. WYOMING DEPARTMENT OF FAMILY SERVICES, 342 F.3d 1159 (10th Cir. 2003):

Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's § 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision. The legislative history accompanying the passage of the FMLA reveals two motivations for the inclusion of the self-care provision. First, Congress was attempting to alleviate the economic burdens to both the employee and to his or her family of illness-related job-loss. See S. Rep. No. 103-3, at 11 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 13-14; H.R. Rep. No. 101-28(I), at 23 (1990). Second, Congress was attempting to prevent those with serious health problems from being discriminated against by their employers. See S. Rep. No. 103-3, at 12; H.R. Rep. 101-28(I), at 23. The legislative history does not, however, identify as the basis for subsection (D) a link between these two motivations and any pattern of discriminatory stereotyping on the part of the states as employers.

Harriet Miers as the new entry on the list of nonmathematician math majors.

Here's a good list for reference. How does the interest in and aptitude for math affect how one behaves in non-mathematical aspects of life? Think of what math may have had to do with the accomplishments of these folks (and go to the link for the full list, compiled by Steven G. Buyske):

Ralph Abernathy, civil rights leader and Martin Luther King's closest aide.

Harry Blackmun, Associate Justice of the US Supreme Court, AB summa cum laude in mathematics at Harvard.

David Dinkins, Mayor of New York, BA in mathematics from Howard.

Florence Nightingale, pioneer in professional nursing. She was the first person in the English-speaking world to apply statistics to public health. She was also a pioneer in the graphic representation of statistics; the pie-chart was her invention, for example. Not really a math major, she was privately educated, but pursued mathematics far beyond contemporary standards for women.

Laurence H. Tribe, Professor at Harvard Law School, often regarded as one of the great contemporary authorities on Constitutional Law. An AB summa cum laude in mathematics from Harvard.

Leon Trotsky, revolutionary. He began to study Pure mathematics at Odessa in 1897, but imprisonment and exile in Siberia seem to have ended his mathematical efforts.

Art Garfunkel, folk-rock singer. MA in mathematics from Columbia in 1967. Worked on a PhD at Columbia, but chose to pursue his musical career instead.

Phillip Glass , composer, a Bachelor's from the University of Chicago.

Carole King , Sixties songwriter, and later a singer-songwriter. She dropped out after one year of college to pursue her music career.

Tom Lehrer , songwriter-parodist. PhD student in mathematics at Harvard.

Lewis Carroll, author of Alice in Wonderland, Through the Looking Glass , and other works. A ringer: he was a logician under his real name, Charles Lutwidge Dodgson.

Heloise (Ponce Cruse Evans), of Hints from Heloise . She minored in math.

Alexander Solzhenitsyn , Nobel prize-winning novelist, a degree in mathematics and physics from the University of Rostov.

Bram Stoker , author of Dracula, took honors at Trinity University, Dublin.

Ted Kaczinski, PhD in mathematics from University of Michigan. Kaczinski worked at UC Berkeley for some time and published papers in complex variables before retreating to the woods and becoming the infamous "unabomber."

Can we get an op-ed from Larry Tribe on the subject? Or maybe you readers can speculate in the comments.

I'll just say that I expect the Senate Democrats to use the math background as they grill Miers about whether she's got a heart -- a subject they pestered John Roberts about. I expect them to heart-grill Harriet even more. She's supposed to represent women -- O'Connor did! -- so where are her feelings? She never married! She has no children! She majored in math! Will they dare take the tack that she's not a proper member of the group she's supposed to represent? You know they are thinking about it.

I just want to say that I'm standing here waiting for every misstep in that direction, and I intend to slam them for it -- from over here in my little outpost in the blogosphere.

A dangerous, cramped, narrow view of the right of privacy?

Noting the belief that Robert Bork was defeated because he disaffirmed the right of privacy, Adam Liptak tries to discern what Supreme Court nominee John Roberts thinks on the subject.

He quotes an article Roberts drafted in 1981 for Attorney William French Smith:

"All of us, for example," he wrote, "may heartily endorse a 'right to privacy.' That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label 'fundamental,' and then resort to it as, in the words of one of Justice Black's dissents, 'a loose, flexible, uncontrolled standard for holding laws unconstitutional.' "

Liptak then quotes Harvard lawprof Larry Tribe:

Laurence H. Tribe, a law professor at Harvard, said the views expressed in Judge Roberts's draft article were at the time "still at least marginally defensible although, by my lights, misguided even then."

This was no longer the case, Professor Tribe said, after Judge Bork's nomination was defeated, an action that he and many other liberal law professors supported. "It was not until the mid-1980's," Professor Tribe said, "that intervening developments could be said to have exposed such views as resting on so cramped and narrow a concept of liberty that any nominee committed to a project of restoring them to the law posed a danger to the American Constitution."

"Still ... even then"? You don't get much clearer markers of a belief in an evolving Constitution. And what are the "intervening developments" that "exposed" the dangerous narrowness of the view expressed in the Roberts' draft? The Bork hearings?

Actually, the Roberts' quote doesn't clearly disavow the right of privacy. It's certainly nothing like the flat ridicule Bork aimed straight at the right. The quote is fussing over "an abstraction" that becomes too free-wheeling and gets elevated over other rights that also require attention. It looks to me that all Roberts is saying is that we need to be careful articulating the right of privacy. Ironically, he simultaneously frets about imprecise interpretation and fails to tell us exactly what he has in mind.

I'd advise you to watch out for that sort of thing.

And watch out for statements like Tribe's too. He's spouting generic verbiage that mostly means: liberals expanded constitutional rights to a point that is good, and if anyone tries to touch them we're going to slam you.