Robert Bork has died.

He was 85.

From the above-linked NYT obituary:

Judge Bork, a bear of a man with a scraggly red beard and untamed frizz on a balding pate who liked to eat, drink and smoke for much of his adult life, handled himself poorly in front of the [Senate Judiciary] committee and failed to give doubters confidence. As Tom Shales, the television critic for The Washington Post, wrote of his testimony: “He looked, and talked, like a man who would throw the book at you — maybe like a man who would throw the book at the whole country.”

See that's what I was just talking about: Liberals used to express abhorrence of law-and-order types.

The NYT obit refers to "the notion that the nominee was somehow unfeeling as a judge." Somehow... a notion... Where, oh, where could it come from?!

This [notion] was amplified when, asked by a sympathetic senator, Alan Simpson, Republican of Wyoming, why he wanted to serve on the Supreme Court, Judge Bork replied that it would be “an intellectual feast.”

And that was it, the worst answer ever given to any question in the history of the United States. Intellectual feast! The feast turned out to be a feeding frenzy for the liberal media. Why, they're still picking kinky reddish beard hairs out of their back molars! Burrrrp! Tasty! What a time! And no Supreme Court nominee has said one interesting thing since. Every single one has promised to be a good little judge who would never ever do anything but serve humbly and modestly deciding the cases according to the law.

You think it was interesting that John Roberts said he saw himself as an umpire, calling balls and strikes? That proves my point! I know, Clarence Thomas, "high-tech lynching," but that wasn't about doing the judicial work, so I'm excluding that from the point, which is that they all learned what not to do from Bork. Presidents learned to avoid even picking someone Borkish, so no one was allowed to look weird, speak quirkly, seem like an intellectual with ideas of his own, it would just be bland blandness served atop a steaming pile of blandness. That is: Not tasty! As a live-blogger of nomination hearings, I want to know: Where's my intellectual feast?

ADDED: When C-SPAN put its entire archive up on-line, the first thing I looked up to relive was the Bork hearings:

6 highlights from Chris Wallace's great interview with Justice Scalia.

From the transcript of this morning's Fox News Sunday (and video).

1. Obamacare. Since Scalia is on the show to promote his new book, Wallace duly begins with a quote from the book: "A statute should be interpreted in a way that avoids placing its constitutionality in doubt." Now, doesn't that undercut Scalia's criticism of Chief Justice Roberts's decision in the Obamacare case? Roberts found that what was called a "penalty" (for failure to acquire health insurance) was actually a tax, and reading the statute that way avoided the constitutional problem. Scalia responded that his principle of interpretation only allows the judge "to find a meaning that the language will bear":

You don't interpret a penalty to be a pig. It can't be a pig. And what my dissent said in the... Affordable Care Act was simply that there is no way to regard this penalty as a tax. It simply doesn't bear that meaning. You cannot give -- in order to save the constitutionality, you cannot give the text a meaning it will not bear.

How does one know what the language will bear and will not bear? Yes, it's not a pig, but why isn't it a tax? There wasn't any pursuit of that line of inquiry, but later in the interview, Wallace came back to the case, that time to ask about the new reports that said Roberts changed his mind in the middle of working on the Obamacare opinion. Wallace introduced the topic by asking if Scalia himself had ever changed his mind after voting in conference. Scalia said:

I have not only done that, I have changed my mind after have been assigned to write the majority opinion. I've written the opinion the other way, it just wouldn't write.... There is... nothing wrong with that.

Wallace then asked "Did Chief Justice Roberts change his mind in the ObamaCare case?" Scalia says he doesn't know — "You'll have to ask him." And Wallace tries again, asking whether at some point Scalia had a majority. Again, Scalia refuses: "I don't talk about internal court proceedings." Wallace resorts to the cutesy: "Just this once?" And Scalia responds in a similarly childish form: "No, never ever. Never ever." But when Wallace accepts the pushback and just says "OK," Scalia opens up:

And, listen, those who do, you shouldn't believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don't respond. It's the tradition of common law judges to lay back and take it. You don't respond in the press. Or B, that reporter had the information from some who was [sic] breaking the oath of confidentiality, which means that's an unreliable person. So, either way, you should not -- you should not put any stock in reports about what was going on in the secrecy of the court.

Take that Jan Crawford!

2. Second Amendment. Wallace asked about the scope of the right protected by the Second Amendment (which the Supreme Court did not detail in Heller). Scalia says:

What the opinion Heller said is that it will have to be decided in future cases. What limitations upon the right to bear arms are permissible. Some undoubtedly are, because there were some that were acknowledged at the time. For example, there was a tort called affrighting, which if you carried around a really horrible weapon just to scare people, like a head ax or something, that was I believe a misdemeanor.... My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we'll see what those limitations are as applied to modern weapons. 

It's clear, he says, as a matter of textualism, that the Second Amendment doesn't "apply to arms that cannot be hand-carried." But that doesn't mean it does apply to everything that can be hand-carried, for example, "handheld rocket launchers that can bring down airplanes." These are matters yet to be decided.

3. "How political is the court?" Scalia — unsurprisingly — says the Court isn't political at all, even though these days, the conservative/liberal split aligns with Republican appointees and Democratic appointees:

That... shows that they had been selected because of their judicial philosophy. The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe versus Wade. Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with th[ese] philosophies?

4. Obama and the Court. Wallace invited Scalia to comment on Obama's criticizing the Supreme Court, first with video of 2010 State of the Union speech with Obama calling out the Justices who were sitting right in front of him. Scalia said that's why he doesn't attend. Second, Wallace showed video of Obama "jawboning" the Court while the Obamacare case was pending. Scalia called it "unusual" — "But as I say, I don't criticize the president publicly and he normally doesn't criticize me."

WALLACE: Did you feel any pressure as a result of that to vote a certain way?

SCALIA: Yes. What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.

The "yes" didn't mean "yes" other than yes, I get what you're asking. It was absolutely clear in the video that he didn't feel at all threatened.

WALLACE: Did you view that as a threat?

SCALIA: I didn't view it as a threat. I'm not even sure I heard it.

WALLACE: Well, you heard it now.

SCALIA: You brought it to my attention.

Ha ha. That was a little theater, acting out his attitude that the President is over there in his branch, doing whatever it is he does, and I'm here in mine, fully insulated.

5. Dissing Judge Posner. Wallace quoted Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

6. He's 76, but is he a fool?

WALLACE: You are 76 years old. Will you time your retirement so that a more conservative president can appoint a like-minded justice?

SCALIA: I don't know. I haven't decided when to retire.

WALLACE: But I mean, does it go through your mind, if I retire, I'd like to see, since you talk about Republicans appointing one kind of justice and Democrats another, that you would want somebody who would adhere to your view...?

SCALIA: No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool.

See how cagey Wallace was? Scalia didn't want to answer the question about timing his retirement to give the appointment to a conservative President, but then Wallace asked the question a different way, referring to the earlier discussion about why it seems — wrongly! — that the Court is political, and that caused Scalia to give the answer, which is of course he's going to time it. It amused me that he tacked on the ending "Unless you think I'm a fool," because Wallace actually did fool him into answering the question he didn't want to answer and because Wallace extracted that answer — which makes Scalia look political — by referring to the earlier discussion of why the Court looks political — but isn't!

Wouldn't it be wonderful if Chief Justice Roberts did switch his vote?

"There has been tons of speculation in the last day that Chief Justice Roberts changed his vote at some late stage in the Affordable Care Act case," writes Orin Kerr, linking to his Volokh co-blogger David Bernstein's 2 posts on the tantalizing meme. Kerr looks at the evidence and speculates about how the complexity of the writing project could have unfolded without Roberts ever switching sides. He was the 5th vote in 2 majorities, one with the liberal 4 and one with the conservative 4:

Roberts is the swing vote in this case and this is the biggest case of his time on the Court, so he quite naturally assigns the opinion to himself....

To write the opinion, Roberts needs to cover a lot of ground — anti-injunction act, tax power, medicaid expansion, etc. Roberts also writes on the Commerce Clause issue, even though it’s not needed to reach the result. Why include that section? Perhaps Roberts thinks that his middle-ground opinion that includes a section agreeing with the mandate challengers on the Commerce Clause might pick up Kennedy’s vote. Or maybe Roberts just wants to weigh in on the most high-profile legal issue of the year, which he happens to care a lot about....

After Chief Roberts circulates his majority opinion, the conservative dissenters decide to write a joint opinion in response. Why a joint opinion? It took Roberts a while to circulate his proposed majority opinion, so the time pressure is particularly intense on the dissenters....

At the same time the conservative dissenters are writing their response to Roberts from the right, Justice Ginsburg does the same from the left...

Read all the speculation. It's interesting, and as Kerr says, eventually we'll probably get the inside story. What I want to talk about is whether there's something wrong with switching. Let's assume the Chief Justice originally voted along with Justices Scalia, Kennedy, Thomas, and Alito, that he was writing a majority opinion, agreeing with them on all the issues that ended up in their joint opinion, and that he decided to go the other way on the taxing power issue.

You might want to know why he switched. He might have switched because, in the process of writing — putting together the constitutional text and theory and all the details of precedent and and the complicated mechanisms of the 900-page statute — he saw that his original intuition about how all the elaborate moving parts would fit together was mistaken. The process of writing the opinion tests many assumptions, and a good, decent, humble judge looks at what he's doing and admits: This won't write.

So, in this case, we might picture Roberts initially determining that he would reject the taxing power argument because Congress portrayed the individual mandate as a requirement, enforced by what it called a "penalty," but along the way, he saw that the label should not be determinative. His opinion emphasizes the case, Drexel Furniture, in which the Court found something Congress had called a tax to be, in reality, a penalty and thus not within the taxing power. Turning that around, he saw that Congress calling something a penalty didn't make it not a tax.

Now, I've criticized Roberts for not talking about the democratic theory of the taxing power. It's one thing to limit Congress's power where it's put a false label on a severe and burdensome law, and it's quite another to find power where Congress avoided using the word that would have made it obvious that there was power. In terms of democratic theory, the judicial role is different. The Court in Drexel thwarted Congress's use of a phony label to make a big power grab. Roberts was allowing a power grab to be made by a Congress that was deceiving the people about what it was really doing. If Congress had admitted forthrightly that the so-called penalty was in fact a tax, people might have reacted differently and made it harder for Congress to assemble the votes needed to pass the law. The mislabeling may have weakened the political pressure against Congress and facilitated its exercise of power.

If the Court is going to defer to the legislative process, it ought to care about dysfunctions in the process, so mislabeling the individual mandate ought to activate the Court, not inspire restraint. I wish Roberts had talked about that. But perhaps he did think about it. Perhaps he thought: Congress is always dealing in euphemisms, conning the public one way or the other. What's truly dysfunctional is a Court that coddles the people, purporting to save them from a Congress that is always going to try to trick them into thinking the legislation is quite nice for everybody. People need to stay alert and pay attention. Be skeptical of labels. Did somebody say nobody considers this a tax increase? And you believed it? You are not sophisticated enough to live in a democracy! Sharpen up! I'm not going to encourage your laxity.

I don't know what mental processes Roberts might have gone through in this vote-switch scenario, but I think you should agree with me that if it were something like what I've written, that there is nothing at all wrong with switching his vote. Even if you don't like his taxing power decision, you shouldn't see anything worse about reaching it with a switch than without a switch, if it was a case of writing a duly judicial opinion and discovering that the right answer was different from what he initially had expected. In fact, it is praiseworthy.

But what if he looked outward, after the oral argument, and heard what the President of the United States and numerous commentators were saying, inveighing against an anticipated decision striking down the law? What if he was vulnerable to the strong assertions that the Court will have sacrificed its legitimacy and become an arm of the Republican Party? What if he thought about the political effect of the drastic opinion he was writing and got cold feet? Judging is an insulated world. The judges are old men and women who stay inside, reading and writing, talking to each other, interacting with people who are extremely deferential and respectful toward them. Why are they reliable interpreters of the law that will affect all the ordinary people out in the real world? What do they know?

A Supreme Court Justice could — for example — spend his off months in the summer driving around the country, parking his RV at Wal-Mart, camping around people who don't realize who he is. But he might also simply expand his reading. You're working on that opinion on a computer, connected to the internet, where everyone is talking about what you are doing. Do you forbid yourself to peek, because it's not properly judicial? Or do you break through that inhibition and take that dose of reality? Is that wrong? If you read those things, you can pre-experience the effect the opinion will have on the people. If you vividly inhabit that experience and come to the realization that the direction you've been going is wrong, and then you switch sides, is that wrong?

Perhaps it's quite right. I criticized Roberts for not talking about the democratic theory of what he did with the taxing power issue. But it might be that he looked very deeply into it and that part of that deep look was a contemplation of how the Court's opinion would be understood, perceived, and used within the political process. He might have thought that the people who expected the Court to save them from the Congress that had tricked them — saying this is not a tax — had gone soft, unfit for democracy. To give them what they wanted would further slacken them. But if those who want the Court to let Congress get away with this trickery win, we'd better watch out. The message is pro-democracy: vigilance.

"It is not our job to protect the people from the consequences of their political choices."

That's the quote from Roberts' opinion that he extracted up front as he began the announcement of the opinion today.

There's material throughout his opinion — which I've highlighted in my various posts today — that calls attention to the flawed mechanisms of the universal-health-coverage scheme. Most notably, the individual mandate is only constitutional because it's optional, and people can simply pay the "penalty" (now known as the tax) to the federal government as long as they don't want to buy health insurance. If people behave rationally and weigh the costs against the benefits, they won't buy insurance until their expenses (health care costs + the penalty) exceed the premiums, and the insurance companies will not amass premiums from the vast numbers of healthy people who pay in more than they receive. It seems like a design for collapse, but, as Roberts says: That's not his concern.

AND: To say it's a "design for collapse" is to set up the question whether it was a screw-up or whether it was the first move in a scheme to take us to a single-payer, government health care program.

MORE: This calls to mind the old Pelosi quote:



"But we have to pass the bill so that you can find out what is in it."

We found out today, I think. Have you noticed yet?

"Ponchos and sombreros: Partygoers don ‘insensitive’ attire despite student efforts."

Imagine! Student efforts failing to sear prick the conscience of the Mifflin Street Block Party people.

The student group that wants respectful seriousness and no horsing around on the subject of Cinco de Mayo calls itself Badgers Against Racism... or "BAR."

IN THE COMMENTS: pduggie said:

"sear the conscience" is the opposite of what you mean.

To have a seared conscience is to have one that is locked out from all claims of injustice.

I think you mean wound or prick.

He refers me to the New Testament, 1 Timothy:

¹The Spirit clearly says that in later times some will abandon the faith and follow deceiving spirits and things taught by demons. ²Such teachings come through hypocritical liars, whose consciences have been seared as with a hot iron. ³They forbid people to marry and order them to abstain from certain foods, which God created to be received with thanksgiving by those who believe and who know the truth. ⁴For everything God created is good, and nothing is to be rejected if it is received with thanksgiving, ⁵because it is consecrated by the word of God and prayer.

I stand corrected. Prick is a much better word.

And by the way — I'm sure I'm not the first person to notice — there's a nice biblical argument for same sex marriage. St. Paul contemned the bad religionists who "forbid people to marry," and — right at that point — said "For everything God created is good, and nothing is to be rejected if it is received with thanksgiving." Did God not create gay people?

Here we are "in later times." Is your conscience seared or pricked?

AND: Though I've read the New Testament many times (though mostly the Gospels), my experience with searing the conscience is overwhelmingly from something written by Felix Frankfurter, in a passage I've used repeated in my constitutional law classes. The case is Baker v. Carr — a great Warren Court landmark — and Justice Frankfurter articulates what is, to me, the most memorable statement of judicial restraint in the Supreme Court reporters:

We were soothingly told at the bar of this Court that we need not worry about the kind of remedy a court could effectively fashion once the abstract constitutional right to have courts pass on a statewide system of electoral districting is recognized as a matter of judicial rhetoric, because legislatures would heed the Court's admonition. This is not only a euphoric hope. It implies a sorry confession of judicial impotence in place of a frank acknowledgment that there is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers, carefully and with deliberate forethought, refused so to enthrone the judiciary. In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people's representatives. In any event, there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear sure to be disappointing to the hope.

I'm quite shocked to discover Frankfurter misused the phrase! But then — did you know? — English was a second language for Felix Frankfurter, who was born in Vienna.

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.

This week, Paul Clement argues that a federal statute is constitutional.

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Here's the recorded argument, which I have not yet listened to.

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

DOMA and the ACA...
	Both are constitutional.
	Both are unconstitutional.
	DOMA is constitutional but the ACA is not.
	The ACA is constitutional but DOMA is not.
	I haven't done the legal analysis to know.
	The answer is whatever the highest court says in the end.
pollcode.com free polls

Explain your answers in the comments.

5th Circuit reacts to Obama's remarks on the Supreme Court case and orders response on whether the Administration thinks courts may strike down a federal law.

Jan Crawford reports:

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would not "take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."...

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick -- both Republican appointees --r emained silent, the source said.

Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.

It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.

"It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.

Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

I had to laugh.

Because I've been living in that fantasy world for almost 30 years.

It's called the legal academy.

Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.

The legal left sounds like Newt Gingrich?

A Wall Street Journal editorial says:

[T]he left has taken to mau-mauing the Justices by saying that if they overturn the [Obamacare] mandate they'll be acting like political partisans. The High Court's very "legitimacy" will be in question, as one editorial put it—a view repeated across the liberal commentariat....

Overturn any part of the law, the Justices are being told, and your reputations will be trashed. The invitations from Harvard and other precincts of the liberal establishment will dry up. And, by the way, you'll show you hate sick people—as if the Court's job is to determine health-care policy.

This is the left's echo of Newt Gingrich's threat earlier in the primary season to haul judges before Congress when it dislikes their rulings. Remember the political outrage over that one?

Well, there's a big difference between vigorous criticism of judges in the press and at the law schools — which is debate in the marketplace of ideas — and dragging them in person into the halls of Congress to berate them. But what exactly did Gingrich say? The WSJ provides no link or exact quote, but I Googled it for you.

Here:

[BOB SCHIEFFER, on CBS’s “Face the Nation"]: [O]ne of the things you say is that if you don’t like what a court has done, the congress should subpoena the judge and bring him before congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute.
I just want to ask you from a practical standpoint, how would you enforce that? Would you send the capital police down to arrest him?

GINGRICH: If you had to.

SCHIEFFER: You would?

GINGRICH: Or you instruct the Justice Department to send the U.S. Marshal. Let’s take the case of Judge Biery. I think he should be asked to explain a position that radical. How could he say he’s going to jail the superintendent over the word “benediction” and “invocation”? Because before you could — because I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it. Now clearly since the congress has....

SCHIEFFER: What if he didn’t come? What if he said no thank you I’m not coming?

GINGRICH: Well, that is what happens in impeachment cases. In an impeachment case, the House studies whether or not — the House brings them in, the House subpoenas them. As a general rule they show up. I mean, you’re raising the core question — are judges above the rest of the constitution or are judges one of the three co-equal branches?

Like I said: big difference.

If you won't acknowlege the difference between people criticizing judges in words and Congress physically compelling them, you're not in a good position to credibly explain why striking down the Affordable Care Act should not be understood as judicial activism.

Do you care about Congress's limited, enumerated powers and the idea of judicially enforceable federalism?

Or do you think that's all a lot of conservative bull that we shouldn't have to pay attention to? — I ask Bob Wright, who asserts a belief in "legal realism," which I ask him to define... and help him to define:



Click "continue" to hear me defend Bush v. Gore.

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”

See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

"The 2012 congressional redistricting cycle following the 2010 Census... seems likely to make much less difference than many of us expected."

Writes Michael Barone:

I predicted that this cycle, like the 2002 cycle, would produce significant gains for Republicans. Their success in electing governors and legislators in 2010 gave them control in big states like Texas, Florida, Pennsylvania, Ohio, Michigan, Georgia and North Carolina. And voters in Democratic California approved a ballot measure turning redistricting over to a nonpartisan commission.

But it turns out Republicans will probably only gain 1 new seat in Congress as a result of all this.

In the [some] big states... Republicans concentrated on bolstering incumbents rather than creating new districts. Big Hispanic population increases in Texas and Florida forced Republicans to create new Democratic districts.

It is said that partisan redistricting can swing dozens of seats the way of one party through the creation of grotesquely shaped districts. But most grotesque districts in the current cycle owe their shape to the Voting Rights Act. Otherwise partisan districting has produced pretty clean lines. 

And when voters change their minds, redistricters can turn out to be too clever by half. Many districts designed to elect Republicans elected Democrats in 2006 and 2008. Many districts designed to elect Democrats elected Republicans in 2010. 

The less aggressive redistricting plans adopted this cycle show that even strong partisans have absorbed the lesson that if you create a bunch of 53 percent districts you can lose them when your side’s support goes down by 4 or 5 percent.

Justice O'Connor said it best in the original political gerrymandering case, Davis v. Bandemer:

[T]here is good reason to think that political gerrymandering is a self-limiting enterprise. See B. Cain, The Reapportionment Puzzle 151-159 (1984). In order to gerrymander, the legislative majority must weaken some of its safe seats, thus exposing its own incumbents to greater risks of defeat — risks they may refuse to accept past a certain point. Id. at 154-155. Similarly, an overambitious gerrymander can lead to disaster for the legislative majority: because it has created more seats in which it hopes to win relatively narrow victories, the same swing in overall voting strength will tend to cost the legislative majority more and more seats as the gerrymander becomes more ambitious. Id. at 152. More generally, each major party presumably has ample weapons at its disposal to conduct the partisan struggle that often leads to a partisan apportionment, but also often leads to a bipartisan one. There is no proof before us that political gerrymandering is an evil that cannot be checked or cured by the people or by the parties themselves. Absent such proof, I see no basis for concluding that there is a need, let alone a constitutional basis, for judicial intervention.

That was judicial restraint — circa 1986 — and it was apt.

Wisconsin Republican legislators — in federal court — argue that state constitutional law forbids redrawing the election districts they drew last year.

The case, brought by Democrats and Voces de la Frontera (an immigrant rights group), is before a 3-judge panel (at the trial level), and yesterday, with the trial about to begin, the panel had "asked both sides to spend the day determining whether lawmakers would consider drawing new maps that would address the plaintiff's concerns."

Presiding Judge J.P. Stadtmueller explained the request by citing a recent U.S. Supreme Court case that said redistricting is best left up to the lawmakers, not judges.

It was at that point that the Republicans grounded their position on state law. I doubt if they want to move the lines, but you can see why it's an appealing argument to say the state constitution doesn't permit it.

Attorney Daniel Kelly said a 1954 ruling by the state Supreme Court established that new voter maps can be drawn only once every 10 years, to avert a never-ending stream of calls for fresh changes.

An attorney for the plaintiffs disagreed. State law only requires that new voter maps be completed in the first legislative session, attorney Douglas Poland said, and this first legislative session hasn't ended.

Now, you've got a disputed question of state law, which the federal panel could attempt to resolve, except it's not part of resolving the legal questions presented in the case, it has to do with the panel's effort to push the parties into settlement, which, it seems, the panel suggested because of the weakness of the federal claim.

What is that federal claim? It seems to be about legislative secrecy: the public didn't get enough information about what was going on in the legislature.

Bills to redraw voting boundaries for state legislative districts, congressional districts and municipalities -- allegedly in ways skewed to benefit Republicans -- were introduced last July 11. The bills promptly passed the GOP-controlled Legislature and were signed into law by Gov. Scott Walker.

Republicans in the Legislature produced completed maps before inviting any public comment. And now it's emerged that GOP lawmakers signed secrecy agreements regarding the process, stirring fresh controversy and potential legal challenges.

"The state redistricting map is rotten and the process by which it passed is rotten," said Christine Neumann-Ortiz, executive director of Voces de la Frontera, a Latino advocacy group whose federal lawsuit challenging the maps brought the secrecy pacts to light. The Legislature, she said at a Feb. 8 press conference, "willfully shut out any public opinion."

I haven't been following the lawsuit, but, just looking at the report this morning, I do not understand what the federal claim is supposed to be. Why is this case going to trial? It sounds like a purely political dispute, and perhaps the 3-judge panel got cold feet yesterday, when the trial was supposed to begin.

Greta Van Susteren asks if anyone is demanding that Justices Prosser and Bradley step down.

"Are any of the newspaper asking for them to step down? People have very serious disputes and their whole lives depend on decisions on the Supreme Court, and this isn't fair to the people. Are newspaper editors saying they got to go?"

The answer from her guest, Jason Stein of the Milwaukee Journal Sentinel:

You are right this is sort of funny, but no joke. One thing that I've heard the time when this all came out Governor Walker talked about the possibility of having an appointed rather than elected court. And that didn't go anywhere. It didn't seem like that proposal -- seems like it would be dead on arrival in our legislature. But certainly there's been a number of people saying, look, this can't go on. Something has got to change.

Total failure to answer the question!

Should Prosser and/or Bradley resign?
	Yes. Both.
	Yes. Bradley.
	Yes. Prosser.
	Yes. Prosser, Bradley, and at least one more.
	Yes. They should all resign!
	No. Keep them all. Move on.
pollcode.com free polls

By the way, I'm hearing a rumor that Justice Crooks might resign. I don't know what that's about, but I was just reading about the 1995 election that originally brought Justice Bradley to the court. She defeated none other than Patrick Crooks in that election, and Crooks (who later won election, in 1996), was the conservative in the race, with the backing of Gov. Tommy Thompson and many Republicans. Bradley had the liberal backing, including the AFL-CIO. Both candidates portrayed themselves as "strict constructionists," and Bradley emphasized judicial independence and the importance of keeping the judiciary above politics. Crooks criticized her for her unwillingness to talk about how she would decide even cases that had been decided in the past. (Sorry for the absence of links there. I'm reading old newspaper articles, and they are not up on line.)

Crooks — who now votes in a bloc with Chief Justice Abrahamson and Justice Bradley, reaching liberal outcomes — called himself "the conservative for the court." When Bradley cited judicial ethics as her reason for refusing to address the issues, he said, after he lost: "I think it's unfortunate we didn't have a chance to show there was a clear, ideological difference between the two of us... It's important for the public to have a sense of candidates' judicial philosophy and how they go about making decisions." Bradley, by contrast, said she won because she refrained from labeling herself and Crooks did not. She said: "I think people ended up not wanting those kinds of conservative labels in a Supreme Court race... You have to be careful not to politicize the court."

A mere 3 years after joining the court, in 1999, Crooks considered resigning. He told the editorial board of the Milwaukee Journal Sentinel that the problem was the “way Chief Justice Shirley Abrahamson is running the court.... abusing her position by micromanaging the court system, making unilateral decisions on administrative matters that should come to the full court, and jeopardizing the court’s neutrality by awarding grants to groups with lobbyists and social agendas."

Crooks, you may remember, was the only justice who was not present for the "chokehold" incident. He had gone home for the day. On another occasion — in 2008, when Justice Bradley allegedly hit Justice Gableman in the head for calling the Chief "Shirley" — Crooks was — allegedly — reading the horoscopes. Crooks was born May 16, 1938. That makes him a Taurus. It says here: "Can you take the day off? Now is the perfect time to do just that. If you’re locked in for some level of responsibility, you can still make the most of your freewheeling energy by creating a party atmosphere." So... no announcement today, probably.

ADDED: From the investigative file (and relevant to Crooks's attitude toward the recent incident):

Justice Crooks said early in his tenure as Supreme Court Justice, he recalls a meeting in which Justice Prosser had called him a "viper" in an aggressive manner. Justice Crooks believed it was sometime around the fall of 1999 when Chief Justice Abrahamson was running for re-election for supreme court. Justice Crooks said he was not supporting her re-election at the time, and Justice Prosser was. It was during a meeting with the other Justices that Justice Crooks stated he was not going to support the Chief Justice's re-election. Justice Prosser had stood up and aggressively called him a "viper" during that meeting because he was not supporting the Chief Justice.  Justice Crooks recalled Justice Prosser had walked out of the room, and slammed the door hard enough to cause the glass to vibrate.    Justice Crooks said he had never forgotten that incident, and believes since then things have been either just as aggressive from Justice Prosser, and in some cases they have escalated.

At the Wisconsin Supreme Court candidates's debate, incumbent David Prosser goes after JoAnne Kloppenburg for what commenters have written on her Facebook page.

What can we attribute to the person with the power to delete comments?

While there was no explicit mention of a Dane County judge's decision to issue an emergency order to block the state's contentious new collective bargaining law, Prosser acknowledged the attacks against him on Klopperburg's Facebook page were from people hoping to elect someone to decide "cases that come out of the governor's budget bill."...

Prosser said Kloppenburg is responsible for the comments on her Facebook page and should take them down. He said the nature of the comments raises questions about whether she can impartially decide any cases that come before her with the budget bill. He mentioned one that read, "Stop the turd, vote Kloppenburg."

"Now am I the turd or is the governor the turd?" he said to laughs from the audience. "Either I am being sort of dissed or she is committing herself to vote in a particular way on a particular case. That's totally inappropriate."

Kloppenburg said the people who post the comments are responsible for the content and that the postings aren't untrue.

"They understand that it is so important to have an independent and impartial court," she said of the people posting on her Facebook site.

I have a very free comments policy myself, and this blog's comments thread is full of things I don't agree with, so I'm strongly disinclined to attribute comments to someone who maintains a comments section. Now, a political candidate might want to clean up the comments, but if she doesn't, what does it mean? It might mean nothing more than a failure to monitor the page — mere inattention or sloppiness. It might mean a commitment to free speech. But one might infer that a candidate would scrub comments that were damaging to her in the election and, perhaps, keep what was helpful.

The key question is whether Kloppenburg has "committ[ed] herself to vote in a particular way on a particular case." Clearly, many of her supporters are saying that she is much more likely than Prosser to give them the outcomes they want, and some of them have said that where she has the power to delete. But Prosser's campaign manager wrote in an official campaign news release that Prosser would "act as a common sense compliment to both the new administration and legislature." Now, that's not exactly a "commit[ment]... to vote in a particular way on a particular case," but it's a signal to people on the conservative side that Prosser to is more likely to give them the outcomes they want. Prosser has "disavowed the release and said he didn't see it before it went out," but what's worse? The Prosser campaign statement or the Kloppenburg Facebook comments?

The answer to that question isn't going to determine who votes for which candidate. Obviously. It's a shame if the judicial campaign has turned into a referendum on the Governor and the GOP legislature, but both candidates bear some responsibility for that. Normally, judicial candidates in this state try quite hard to look as though the race is all about judicial skill and temperament. I think Wisconsinites want that message, and, also, that they are more likely to conflate conservative politics with properly judicial skill and temperament. (That's how Gableman defeated Butler, in my view.)

But at this point in the Wisconsin craziness, some unknown large number of Wisconsinites — especially those who will take the trouble to vote on April 5th — see the election as a way to express an opinion about what the Republicans have been doing in Wisconsin. Presumably, there are some more who have opinions about the extent to which a court should check the legislative process — a more conventional view about judging. I think there are also plenty of Wisconsinites who have a general preference for conservative judges. (They worry that liberal judges will be too sympathetic to criminals and that sort of thing.) Lots of people just vote for the incumbent because they figure he's a solid guy who knows what he's doing.

Who will turn out on April 5th? My sense is that the people who have been protesting for the last month have a lot of pent-up energy to expend on getting their people to the polls, and they are saying vote Kloppenburg.

In the new "informational privacy" case — Justice Scalia talks about evaporated, refreshing, Lincolnesque honesty; pontificating in the guise of judicial minimalism; and what I think are McGuffins.

"I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution," writes Justice Scalia in a concurring opinion in NASA v. Nelson, a unanimously decided case issued this morning:

But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.

Scalia notes the "remarkable and telling fact," which he says he has never seen before in the Supreme Court, that the party saying his rights have been violated does not — even once —cite a constitutional text in his brief:

To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pretense of tying it to some words of the Constitution.

Regrettably, this Lincolnesque honesty evaporated at oral argument....

Questioned at oral argument, Nelson's lawyer said what you'd expect him to say: the Due Process Clause. And then Scalia goes on to say what you'd expect him to say, disparaging "the infinitely plastic concept of 'substantive' due process."

Scalia also attacks the majority's "judicial minimalism" — manifested in its failure to say whether at some point — though not in this case — there may be a violation of a constitutional right to informational privacy. It's "not actually minimalist" to decide cases this way, Scalia says, because the Court took the opportunity able "to pontificate upon a matter that" — if there is no such right — "is none of its business: the appropriate balance between security and privacy." And if there is such a right...

I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence.

Alfred Hitchcock line of jurisprudence...  I think that has something to do with McGuffins.

ADDED: I moved the erstwhile title of this post into the first line so I could write a more exciting headline. I've got to push myself to be more sensationalistic. I hope you appreciate the effort.

"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 

Great! A bloodbath. Sounds exciting. I'll watch.

Michael McConnell states the constitutional problem with the "deem and pass" more clearly and concisely than anyone can explain what the "deem and pass" is.

Is that a clue that something really devious is going on?

Article I, Section 7 clearly states that bills cannot be presented to the president for signature unless they have been approved by both houses of Congress in the same form. If the House approves the Senate bill in the same legislation by which it approves changes to the Senate bill, it will fail that requirement.

The actual constitutional text is: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."

No one doubts that the House can consolidate two bills in a single measure; the question is whether, having done so, it may then hive the resulting bill into two parts, treating one part as an enrolled bill ready for presidential signature and the other part as a House bill ready for senatorial consideration. That seems inconsistent with the principle that the president may sign only bills in the exact form that they have passed both houses. A combination of two bills is not in "the same form" as either bill separately.

McConnell is fending off the argument that the House, under Article I, §5 ("Each House may determine the Rules of its Proceedings"), has the authority to bundle 2 bills together and vote on them at the same time. He also must contend with the argument — which has some case law in support — that the House makes the final call on the meaning of the Constitution in this area.

Read lawprof Jack Balkin's response to McConnell:

As I understand the rule in question, it does not actually "consolidate two bills into a single measure." Rather, it says that once the House votes on the reconciliation measure, it also votes on the Senate Bill....

McConnell's objection is formalist: He concedes that the House could have separate votes on both bills, and send one to the President and the other to the Senate. His sole objection is that the House leadership has decided to vote on them together using a single procedural rule.

But if he wants to make that kind of formalist argument, the House has an equally formalist rejoinder: The use of this particular procedural rule does not consolidate the two measures into a single measure. It just consolidates a vote on the two measures. In fact, the language of the rule actually preserves their separate character; it refers to the language of the reconciliation measure and the Senate bill separately.

What the leaders of the House would say is that McConnell has made a basic mistake: He has confused a bill with an internal rule for voting on a bill....

... The Constitution leaves to Congress to decide how to authenticate bills, and the Court won't second-guess the evidence....

What I've observed is that the Supreme Court employs formalistic-sounding arguments as a convention of opinion-writing when it is confronting Congress over matters like this and finding something unconstitutional. But, I think, a judicial intuition that something is amiss precedes the opinion-writing, and that intuition has to do with much more than a parsing of the text. As Balkin shows, you can go either way with the text if you want. The deeper question is whether the procedure deprives us — the people — of a structural safeguard that would protect us from the abuse of power. Is this something that matters, something we should care about, something that operates to preserve the accountability of our representatives?  And the answer to that question must be disaggregated from the question whether we like the substance of the bill/bills. If you go with Balkin because you want the health care reform, or with McConnell because you don't, then you are not talking about the Constitution.

McConnell's main aim is to create doubt about the "deem and pass" and thereby affect the vote in the House. He ends his op-ed:

Will wavering House members want to use this procedure when there is a nontrivial probability that the courts will render their political sacrifice wasted effort? To hazard that risk, the House leadership must have a powerful motive to avoid a straightforward vote.

Whether you want to think about the Constitution or not, you may ask: If this reform really is desirable, why are they doing it in such a bizarre way? The constitutional questions add heft to that question. If McConnell's interpretation is good, the procedure is all the more bizarre, and the doubts that arise are aggravated. If Balkin's right, then everything's fine, calm down, let it go. They are talking about law, but they are talking to Congress, trying to affect the vote. Predictions about what courts will and will not do play into the present debate.

What seems most important to me, both politically and in answering the constitutional question (if it, ultimately, becomes necessary), is whether the members of the House of Representatives understand and make it absolutely transparent that what they are doing is voting on 2 bills and that the Senate bill, if approved, will go independently and directly to the President for signature, and that, upon the President's signature, that bill will become law on its own, without any regard to whether that other bill ever makes it through the Senate and into law later on.

If the members of the House of Representatives are going to deny that they voted for the Senate bill that became law (on its own) or if they will say that they were somehow caught unaware or betrayed by the Senate or tricked, then I think the rule is unconstitutional. But if they cannot use the rule that way — as political cover — why use it at all?

Judge Posner says maybe it wouldn't have been so bad if FDR's Court-packing plan had passed.

"It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the 'living Constitution' on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals."

That's snazzily put, but it's really saying the same old thing about judicial restraint. Deference to legislatures in FDR's day served a liberal goal, and the activists were the conservatives. In later decades, judicial activism was mobilized for liberal ends. Over time, conservatives and liberals have used both judicial restraint and judicial activism to suit their ends.

The more fundamental question is whether we'd be better off if the judicial branch were subordinated to the political branches. I would think that conservatives and liberals alike — the full range across the political spectrum — benefit from a system of separated powers with 3 branches that are well-balanced and strong within their own spheres.

We can fight forever about exactly what the 3 spheres of power really are and what constitutesproper balance — when courts should act and when they should defer to the democratic branches — but I balk at the invitation to be wistful about the missed opportunity to weaken and subordinate the courts.