Mainstream pundits continue their all-out pre-emptive attack on a hypothetical Supreme Court opinion against ObamaCare. If the Court strikes down a single syllable of the law, they warn, the public will see this as a “political” decision and the legitimacy of the Court will be tarnished forever. Juan Williams repeats this idiotic narrative in a column proclaiming: “Team Obama is right to conclude there is fertile political ground to be plowed in lashing out against the right-wing activism of the Roberts Court.” (ht: Ed Whelan at NRO Bench Memos).
More pathetic is the piece by Ezra Klein as WaPo griping about how hard this whole ObamaCare thing is on . . . law professors. He quotes Akhil Reed Amar (an otherwise solid, albeit liberal scholar):
“If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”
Cry me a river, Akhil. He knows perfectly well (as do many scholars, such as Georgetown’s Randy Barnett) that there are sound constitutional reasons to strike down all or part of the Affodable Care Act. The idea that the Court’s legitimacy faces some unique danger, after 70+ years of treating the Constitution as a decorative prop, is absurd.
Even dumber is the idea that if the Court strikes down ObamaCare by a “narrow” 5-4 vote, the public will be outraged. Does anybody seriously believe that the public (which overwhelmingly wants the individual mandate struck down) is going to quibble about the vote margin?