Bench Memos

NRO’s home for judicial news and analysis.

Linda Greenhouse’s ‘There’s Just No There There’


Linda Greenhouse brusquely dismisses the constitutional challenge to Obamacare’s individual mandate as patently meritless: “simply wrong,” “There’s just no there there,” “just words.”

I find her position both puzzling and amusing:

1. Greenhouse asserts that the challenge is “analytically so weak that it dissolves on close inspection.” But she doesn’t fairly present, much less meaningfully engage, the arguments she rejects, nor does she give any signs that she has engaged in “close inspection.”

From Greenhouse’s account, a reader would think that the entirety of the constitutional argument against the mandate is that the mandate is “unprecedented.” Never mind that the very first sentence of the states’ brief that she purports to summarize states that the mandate is “unprecedented and unbounded”—and that the brief proceeds to argue that such unbounded federal power is incompatible with the Constitution. Never mind that the brief addresses and distinguishes the Commerce Clause precedents that she regards as so obviously dispositive.

My point here is not to maintain that any reasonable person must agree with the states’ brief. I’ll limit myself to the observation that it’s Greenhouse’s supposed analysis that deserves her assessment, “There’s just no there there.”

2. Here’s a telltale passage from Greenhouse’s post:

Indeed, just a few years ago, the constitutional argument against the mandate struck most people who thought about the matter as frivolous. In 2009, the House speaker, Nancy Pelosi, famously replied “Are you serious?” to a question about the bill’s constitutionality.

Ah, yes—Nancy Pelosi, constitutional scholar. The idea that Nancy “we have to pass the bill so that you can find out what is in it” Pelosi might be imagined to have given an iota of thought to the constitutional limits on Congress’s Commerce Clause authority is laughable. Greenhouse evidently doesn’t recognize that Pelosi’s “Are you serious?” reply is “famous” precisely because most people understand it to show her utter disregard for any limits on congressional authority.

Update: The Wall Street Journal’s James Taranto further dissects Greenhouse’s “shallow, disingenuous and silly” post.


Subscribe to National Review