Judges and Ideology

by Dave Schuler on March 30, 2012

The editors of the Washington Post view the oral arguments on the constitutionality of the PPACA very much as I did:

Sadly, even before the sessions on health-care reform had ended, some liberals were preemptively trying to delegitimize a potential defeat at the court. If the justices strike down the individual mandate to purchase health insurance, they said, they will prove themselves partisan, activist and, essentially, intellectually corrupt.

We share in the disappointment that the justices on both sides of their ideological divide are, for the most part, so predictable. That’s not, in the ideal world, how judging is supposed to work. But we also think there’s a kind of cynicism, or at least intellectual laziness, in asserting that this is an easy or obvious call — that no justice could possibly strike down the mandate out of honest, reasoned conviction. Solicitor General Donald B. Verrilli Jr. had his hands full defending the mandate, not because he’s a bad lawyer, but because it’s not an easy question.

It was never an easy or obvious call. Viewing it as such is not only lazy it’s naive, parochial. An example of the Pauline Kael phenomenon.

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