A response to Randy Barnett's "Larry Lessig: If the Republican Justices Do Not Agree With Me They Will Be Acting Politically"
Randy Barnett says that I have ignored his argument about why Justice Scalia's opinion in Raich "in no way bound[s]" him in the Obamacare.
That's not true.
Randy made two "legal arguments": (1) That the Court could create a new constraint, emanating from the Necessary and Proper Clause, that limits legitimate Necessary and Proper Clause legislation to laws that "carry into execution" other laws. (2) That mandates are an improper means to carry Congress's laws into effect.
But I explicitly said that "Scalia could change his test" -- which is what recognizing "a new constraint is." And the whole point of my piece was to underline the significance of statutes that created mandates at the founding -- specifically, that they negate the suggestion that such "means" were "improper." Randy calls this mandate "unprecedented." Except, of course, for these precedents.
Randy also says that for the Court to take account of the mix of laws that it strikes down -- assuring that the mix would not lead reasonable observers to believe they only found unconstitutional laws they don't like -- "would be acting entirely politically."
That too is not true.
"Political" in this context means partisan. It is perfectly appropriate (and not in this sense "political") for the Court to account for how its behavior weakens or strengthens its own institutional integrity. As I've described it elsewhere (my own "legal arguments" that Randy is "skipping over") there is a fidelity to mean-ing and a fidelity to institutional role. A Court that ignores either is not behaving properly.
Finally, Randy says (or his title says) that I argued: "If the Republican Justices Do Not Agree With Me They Will Be Acting Politically."
That too is untrue, as Randy in his very first sentence almost acknowledges, but even that take back isn't complete. For this is the last sentence in my piece:
Even I would have to concede the appearance that it's just politics, even if I don't believe I could ever believe it.
What that sentence says is that "I don't believe" the Court is acting politically -- precisely the contrary of Randy's title. I don't believe that the Court is political in the sense most seem to think it is -- i.e., partisan. Their worst sin is obliviousness -- which is precisely what a pattern of intervening exclusively on the Right would be.
But does that argument make me inconsistent, as Randy asserts, because I asked, as lead counsel in Eldred, the Court to apply its enumeration principle in a non-conservative context?
It does not.
It is not my position (see again the "legal arguments" of mine that Randy is "skipping over") that the Court should apply no limits to Congress's power. And even if that were my position, there would be nothing "inconsistent" in an advocate asking the Court to apply consistently a doctrine the advocate disagrees with.
Randy has been a consistent and vocal advocate for judicial limits on Congress's power -- a principle he applies regardless of its political valence. Whether one agrees with the wisdom of that or not (and by "wisdom," again I mean from the perspective of fidelity to role), one must admire him for this non-political (again, in the sense of partisan) behavior. All my criticism of the Court could thus be reduced to two sentences: If you're going to do this, you at least ought to be doing it as Randy does. And if you don't, then you will lose the respect that he has earned, precisely because of his consistency.
One final quibble, this time beyond the constitution:
Randy's essay is a nice example about how the ethics of writing need to evolve in the Twitter age. He wrote his piece for a blog. In the days when people would come to a blog as a whole, the harm in titling a piece with a complete falsity is small -- at least when you correct the falsity in the very first sentence of the piece.
But in the age of Twitter, this behavior is not harmless. For the title lives separately from the substance. It has been hilarious to watch the outrage at my "outrageously hypocritical" argument (as one person earnestly wrote me in an email) spread across Twitter, fueled by Randy's completely false title.
It is better behavior, I suggest, not to induce such misunderstanding. Especially when it might be interpreted as being motivated by a disagreement with the politics of the person attacked.