Little-Acorn
Well-Known Member
On Monday, Obamacare will finally be examined by the U.S. Supreme Court. The Supremes have set aside three days for oral arguments - something they haven't done in more than 40 years.
But where one would expect Obamacare's defenders to pour huge effort into their defense of the Anointed One's hallmark program, Liberals seem to be scraping the bottom of the barrel trying to find any justification for it at all.
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http://online.wsj.com/article/SB10001424052702304636404577297571200316702.html?mod=wsj_share_tweet
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The Ineffective Greenhouse
A liberal legal legend's ludicrous ObamaCare defense
by JAMES TARANTO
Updated March 22, 2012, 4:01 p.m. ET.
Linda Greenhouse is something of an institution of legal journalism. She became the New York Times's Supreme Court correspondent in 1978. Thirty years later, when she accepted an early-retirement package from the financially stressed newspaper, Legal Times reported that a 7-2 majority of the justices threw a going-away party for her, "complete with cheese, desserts, and prosecco wine."
Greenhouse still writes for the Times, only she's moved to the editorial page's "Opinionator" blog. Last night she weighed in with a revealing post about the ObamaCare cases, in which the high court hears oral arguments next Monday through Wednesday and is expected to issue a ruling at the end of its term in early summer. She opens with a close examination of her own venerable navel:
Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer's thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over "intelligent design," for example, and treating climate change naysayers as cranks.
Court cases are trickier. It's one thing to engage in prediction that flows from analysis: which side is most likely to win? It's quite another to let readers in on the fact that one side's argument is so manifestly weak that it doesn't deserve to win.
The way to do what Greenhouse wishes to do--let readers in on the "fact" that one side in this litigation "doesn't deserve to win"--is by doing what Greenhouse has done, namely become an opinion writer. A judgment about which side deserves to win a legal case is not a fact but an opinion. Even when it is authoritative, as it will be in this case when a majority of the justices hand down a ruling, it is still an opinion, often accompanied by differing opinions known as dissents and concurrences.
Greenhouse is not a judge, so her opinions are no more authoritative than those of your humble columnist. What's more, on the merits, her opinion on the ObamaCare case is shallow, disingenuous and silly:
I want to unpack the challengers' Commerce Clause argument for what it is: just words.
Basically just one word, in fact: "unprecedented." Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word "unprecedented" 10 times, by my count--I probably missed some--not counting such other formulations of the same thought as "novel" and "first ever." O.K., I get it. I'll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world's most irrational health care system. It should have happened much earlier.
Unprecedented is a description, not an analysis. What's unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. . . .
The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. . . . So there must be some problem with the Affordable Care Act other than "never before."
Although we've elided some of Greenhouse's verbiage, this is a fair representation of her argument, if one can call it that. It boils down to repeatedly sneering at the word "unprecedented" as if the litigants' claim were no more than that ObamaCare's individual mandate is a new development in politics or policy. She simply ignores the legal significance of ObamaCare's lack of precedent.
That significance is great. "The command of precedent has deep roots in Anglo-American legal tradition," one Supreme Court observer has noted. "Lawyers and judges often use the Latin phrase 'stare decisis,' meaning 'to stand by things decided.' " The court has never decided the question posed by ObamaCare: whether the Commerce Clause gives Congress the power to require that individuals purchase a financial instrument from a private company. Since no existing precedent authorizes the individual mandate, the court can strike down the ObamaCare mandate without offending stare decisis.
The Supreme Court observer we quoted in the preceding paragraph was none other than Linda Greenhouse, writing in the Times in 1991. Unless she has forgotten such an elemental legal principle, her mockery of the litigants for noting that ObamaCare is unprecedented is not merely ignorant but intellectually dishonest. She is trying to mislead her readers, and possibly herself, into thinking that the case against ObamaCare is without merit.
(Full text of the article can be read at the above URL)
But where one would expect Obamacare's defenders to pour huge effort into their defense of the Anointed One's hallmark program, Liberals seem to be scraping the bottom of the barrel trying to find any justification for it at all.
----------------------------------------------------
http://online.wsj.com/article/SB10001424052702304636404577297571200316702.html?mod=wsj_share_tweet
BEST OF THE WEB TODAY
The Ineffective Greenhouse
A liberal legal legend's ludicrous ObamaCare defense
by JAMES TARANTO
Updated March 22, 2012, 4:01 p.m. ET.
Linda Greenhouse is something of an institution of legal journalism. She became the New York Times's Supreme Court correspondent in 1978. Thirty years later, when she accepted an early-retirement package from the financially stressed newspaper, Legal Times reported that a 7-2 majority of the justices threw a going-away party for her, "complete with cheese, desserts, and prosecco wine."
Greenhouse still writes for the Times, only she's moved to the editorial page's "Opinionator" blog. Last night she weighed in with a revealing post about the ObamaCare cases, in which the high court hears oral arguments next Monday through Wednesday and is expected to issue a ruling at the end of its term in early summer. She opens with a close examination of her own venerable navel:
Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer's thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over "intelligent design," for example, and treating climate change naysayers as cranks.
Court cases are trickier. It's one thing to engage in prediction that flows from analysis: which side is most likely to win? It's quite another to let readers in on the fact that one side's argument is so manifestly weak that it doesn't deserve to win.
The way to do what Greenhouse wishes to do--let readers in on the "fact" that one side in this litigation "doesn't deserve to win"--is by doing what Greenhouse has done, namely become an opinion writer. A judgment about which side deserves to win a legal case is not a fact but an opinion. Even when it is authoritative, as it will be in this case when a majority of the justices hand down a ruling, it is still an opinion, often accompanied by differing opinions known as dissents and concurrences.
Greenhouse is not a judge, so her opinions are no more authoritative than those of your humble columnist. What's more, on the merits, her opinion on the ObamaCare case is shallow, disingenuous and silly:
I want to unpack the challengers' Commerce Clause argument for what it is: just words.
Basically just one word, in fact: "unprecedented." Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word "unprecedented" 10 times, by my count--I probably missed some--not counting such other formulations of the same thought as "novel" and "first ever." O.K., I get it. I'll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world's most irrational health care system. It should have happened much earlier.
Unprecedented is a description, not an analysis. What's unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. . . .
The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. . . . So there must be some problem with the Affordable Care Act other than "never before."
Although we've elided some of Greenhouse's verbiage, this is a fair representation of her argument, if one can call it that. It boils down to repeatedly sneering at the word "unprecedented" as if the litigants' claim were no more than that ObamaCare's individual mandate is a new development in politics or policy. She simply ignores the legal significance of ObamaCare's lack of precedent.
That significance is great. "The command of precedent has deep roots in Anglo-American legal tradition," one Supreme Court observer has noted. "Lawyers and judges often use the Latin phrase 'stare decisis,' meaning 'to stand by things decided.' " The court has never decided the question posed by ObamaCare: whether the Commerce Clause gives Congress the power to require that individuals purchase a financial instrument from a private company. Since no existing precedent authorizes the individual mandate, the court can strike down the ObamaCare mandate without offending stare decisis.
The Supreme Court observer we quoted in the preceding paragraph was none other than Linda Greenhouse, writing in the Times in 1991. Unless she has forgotten such an elemental legal principle, her mockery of the litigants for noting that ObamaCare is unprecedented is not merely ignorant but intellectually dishonest. She is trying to mislead her readers, and possibly herself, into thinking that the case against ObamaCare is without merit.
(Full text of the article can be read at the above URL)
