McConnell on the “anticipatory denunciations” of the liberal professoriate

May 25th, 2012

In apparent panic at the tenor of the Supreme Court argument over the constitutionality of the Affordable Care Act (aka ObamaCare), liberal law professors have exploded with anticipatory denunciations of the court’s conservative justices—claiming that it would be “hypocritical” and “partisan” of them to invalidate legislation passed by Congress when they generally oppose “judicial activism.

It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.

It seems unlikely this one-sided definition of “activism” will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.

Judge McConnell makes a point that I have been bandying about for a bit—if the profs are so confident in their position, they would be offering arguments, rather than intimidation:

If liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.

I almost want to put the reactions in terms of the 5 stages of grieving:

  1. Denial – denying that any challenge to the ACA has any validity
  2. Anger – if the Court strikes down the mandate it will be like the New Deal all over again
  3. Bargaining – offering alternate arguments that the Solicitor General should have made
  4. Depression – This may come on June 28, compounded by what may come on November 6.
  5. Acceptance – This may never come.