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To all my friends celebrating Christmas, have a blessed holiday. To all my friends not celebrating Christmas, I would recommend you see Avatar after eat some Chinese food.

Yesterday I made a bold prediction that if the Supreme Court struck down portions of ObamaCare as unconstitutional, the Progressives would herald a Constitutional Moment, as if they were facing the Supreme Court in 1936.(See here)

At Balkinization, Mark Tushnet just proved my point.

On the merits of the challenge (to the Constitutionality of the health care bill), I’m skeptical, but I want to raise a point related to earlier postings about constitutional moments. My skepticism is a predictive one, which seems to me quite widely shared. One would be reasonably confident that under constitutional law as articulated by the Supreme Court up to late 2009 the Nebraska Compromise “is” constitutionally permissible. But, of course, there are — there always are — arguments from within existing constitutional law supporting the opposite conclusion. And it’s always within the power of five members of the Supreme Court to adopt what they believe to be the correct interpretation of the Constitution even if that interpretation is different from, or in tension with, the tenor of the rest of constitutional doctrine. I think the way to think about the predictive question is this: We should be thinking about the question, Do five members of the present Supreme Court want to place themselves in the position of the Supreme Court majority as it was in 1935-37? If they do, the ticking of the clock of constitutional moments might get a bit louder.

I hate when it I’m right

The Health Care bill transforms government unlike any other “landmark legislation” since the New Deal. Since the Supreme Court abdicated its Constitutional role in West Coast, the Justices have not been willing to stand up for the encroachment of the feds. Save Justice Thomas, I don’t think any of the 9 have the moxy to stand up to healthcare. So I don’t think Tushnet has much to worry about. But he did issue a shot across the bow at 1 First St NE.

Please check out Professor Ayres’s post on the New York Times Freakanomics Blog, discussing the wisdom of the crowds and FantasySCOTUS.net, titled Prediction Markets vs. Super Crunching: Which Can Better Predict How Justice Kennedy Will Vote?

One of the great unresolved questions of predictive analytics is trying to figure out when prediction markets will produce better predictions than good old-fashion mining of historic data. I think that there is fairly good evidence that either approach tends to beat the statistically unaided predictions of traditional experts.

But what is still unknown is whether prediction markets dominate statistical prediction. (Freakonomics co-blogger Justin Wolfers, in a sense, is on both sides of this debate. Justin is one of the best crunchers of historic data, and even more, he is at the cutting edge of exploiting the results of prediction markets).

Thanks to Josh Blackmun [sic], we are about to have a test of these two competing approaches. Blackmun [sic] has organized a cool Supreme Court fantasy league, where anybody can make predictions about how Supreme Court justices will vote on particular cases. The aggregate prediction of the league members is powerful “wisdom of the crowds” information.

Thanks to Josh’s creation, we’ll be able to sit back — paying particular attention to instances of disagreement — and see over time which approach makes the better predictions. This single experiment will not, by itself, resolve the larger “which is better” debate — in part, because I could imagine putting forward stronger market-based and statistical-based predictions. The fantasy league predictions would probably be more accurate if market participants had to actually put their money behind their predictions (as with intrade.com). And the statistical predictions could probably be improved if they relied on more recent data and controlled for more variables.

I am a HUGE Freakanomics fan, and just finished reading Super Freakanomics. This, is really cool.

I doubt the Supreme Court will strike down Obamacare on Epstein’s taking argument, states challenging the so-called “Nebraska Compromise” may have some luck.

But, this 23rd day of December, 2009, I am making a prediction.

If the recalcitrant Supreme Court actually strikes down any portion of ObamaCare, we will see a political backlash against the Supreme Court unlike anything we’ve seen since FDR’s court packing scheme.

This landmark legislation, which blows away Title VII, the ADA, and the Social Security Act, in its scope and power, will constitute the next constitutional moment.

The Constitution in 2020 movement realizes the futility of relying on the Supreme Court to protect their preferred rights, and aim to shift the constitutional obligation to the Legislature, and to the people.

Jack Balkin and Sandy Levinson have already blogged about a constitutional moment, with respect to Nelson and Lieberman. Just wait till SCOTUS tells POTUS nope. Expect to see call for term limits for SCOTUS and other measures to take power away from these unelected oracles of the law.

Take a look at this article by Lawrence Friedman, titled Liberty and Privacy Interests through the Political Question Lens (H/T Legal Theory Blog).

I also examine the contention that liberty and privacy claims involve the same potential for unprincipled judicial decision-making that motivates the Court to step aside in true political question cases. I conclude that the liberty and privacy cases fall outside even the spirit of the political question doctrine and lie soundly within the purview of the judiciary. Application – even by analogy – of the political question doctrine in matters related to liberty and privacy would undermine the Court’s constitutional role in protecting individual rights against government intrusion. Finally, I address an alternative jurisprudential approach that endorses a judicial role in individual rights cases, but in a way that leaves open the possibility for democratic contribution to and embellishment of the judicial declaration of rights. This approach represents another path by which a court may seek to mitigate the worst effects associated with the judicial resolution of constitutional disputes involving governmental regulations in the areas of liberty and privacy.

Friedman views certain liberty and privacy issues through the spectrum of the political question doctrine. These issues are so important, they “lie soundly within the purview of the judiciary.”

I have previously compared the Rational Basis test to a a political question. If you look at what the court is doing, they are not actually judging, but in fact are leaving the determination to other branch. The question is, why bother calling it a test? There is no test. They definitively punt to the legislative branches.

So if Friedman argues that these substantive due process liberty interests should not be considered political questions, maybe a similar argument can be made for certain economic rights currently afforded rational basis review?

Friedman addresses this point:

Of course, Lochner itself is synonymous with a version of substantive due process, aimed at protecting economic interests, that has been discredited.197 This was partly because economic substantive due process resulted in a great deal of judicial intervention—intervention that was insufficiently attentive to actual economic experience.198 As well, the Court’s renunciation of Lochner-style
decision-making acknowledged limitations on the ability of the judiciary to police the political process effectively.199 It must have occurred to the Court, after decades of attempting to chart the reach of economic substantive due process, that it would be increasingly difficult to define interests, like the freedom to contract or pursue a livelihood, without interfering with the ability of state legislatures to exercise their
police powers for the common good.20

So economic rights require a lot of judicial intervention, and freedom of contract rights are hard to define. But, privacy rights require minimal judicial intervention and are easy to define? So much for the “mysteries of the universe.”

Should the political question doctrine be understood to preclude judicial consideration of certain matters, even though those matters are not committed to one of the political branches, and even though judicially manageable standards for addressing those matters exist? In general, the answer is no. Regardless of how controversial an issue may be, when a proper case and controversy presents itself,
the judiciary should exercise its authority to review the products of the political process even in the context of fiercely contested issues like abortion and same-sex marriage. This is so because of the premise of non-economic substantive due process—that there are judicially-enforceable limits on the government’s relatively vast authority to regulate. The nature of the relationship that the Constitution
establishes between the government and the governed, with the latter in control of the former, suggests there are some individual decisions that are so crucial to our ability to function as free and independent citizens in the political community that the deprivation of our ability to make those decisions without interference by the government would undermine not just individual liberty but, perhaps, the community itself. If the courts were to decline to entertain challenges to the government’s power to regulate individual choice in intimate matters, like the decision to bear or beget a child, the relationship between government and the citizenry likely would be quite different from the one the Constitution appears to contemplate.

This helps shed light on why some think the two types of rights should be treated so differently. While I am not sure if I agree with the author’s conclusions, the framework is very instructive.  Interesting.