Might Harvard law professor Laurence Tribe’s public legal assessment of the constitutionality of Obamacare’s individual mandate be “advocacy disguised as analysis”? You don’t need a conservative to say so. That’s exactly the charge that the New Yorker’s Jeffrey Toobin has made. And, it turns out, Tribe himself has conceded as much.

In February, Tribe argued in an op-ed in the New York Times that the constitutionality of Obamacare’s individual mandate is “open and shut” and that only Justice Thomas could have “principled disagreement” with it. Justice Scalia’s reasoning in 2005 (in Gonzales v. Raich) on Congress’s power to ban homegrown marijuana, Tribe asserted, would compel him to approve the individual mandate: “To imagine Justice Scalia would abandon [his] fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.” Further, Justice Kennedy, “whom many unfairly caricature as the ‘swing vote,’ deserves better as well” than to be thought of as a possible vote against the individual mandate. And: “Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.”

As various commentators (collected here) observed at the time, Tribe’s op-ed was very thin on legal reasoning and thick on political posturing. His message—or, rather, threat—to Roberts, Scalia, Kennedy, and Alito was clear: If you vote against the individual mandate, I’ll condemn you as a political hack.

At a Harvard law school alumni event last month, Toobin gently ridiculed Tribe’s posturing (beginning around 47:49 at this audio link):

Larry Tribe wrote an op-ed piece about the constitutionality of the health care bill, and it was, it was advocacy disguised as analysis. And his point was, well, if Justice Kennedy were principled and following the rules set down in his own decisions, he would vote this way, but if he’s a partisan hack, he’ll vote the other way. Ah, and, ah, you know, I mean, no one loves Larry Tribe more than I do, but give me a break, alright? … [T]he way Larry argues is to argue to each justice. And he basically said everyone except Thomas, if they are principled and they follow their previous decisions, they will vote to uphold the law. And, you know, I’m a little skeptical. I think there are, I think there are four sure votes to uphold, but after that I think it’s a lot closer question.

One day later, at the same alumni event, Tribe largely validated Toobin’s critique:

I tried to argue in the New York Times op-ed that this is not a case where the court is going to divide along the usual 5 to 4 line, with Anthony Kennedy being the swing justice. I thought it was going to be an overwhelming majority in support, and that it was kind of an insult to Kennedy and Scalia to say that just because the conservative wing of the Republican party has mounted a conservative attack and some lower courts have invalidated the law, that they would, in lockstep, agree with those lower court decisions. I have to admit that to some extent I, it was, I was hoping for a degree of self-fulfilling prophecy there. I was sort of speaking to my friends on the court, saying, “Don’t get taken in by this, it will really look bad, in terms of your historic record, when people look back and see that you’ve been sort of snookered by these arguments.” But who knows? Who knows whether they will agree with that?

A few comments:

1. No one making the case against the individual mandate is contending that Kennedy and Scalia (or Roberts or Alito) might vote “in lockstep” against the mandate “just because the conservative wing of the Republican party has mounted a conservative attack and some lower courts have invalidated the law.” The argument, rather, is that the mandate is constitutionally defective under the principles that those justices should embrace. There’s plenty of room for reasonable dispute over that proposition, but it’s unfair for Tribe to have maintained in his op-ed that the argument against the individual mandate is political rather than legal.

2. When Tribe admits that he “was hoping for a degree of self-fulfilling prophecy there,” one very charitable reading of his admission is that he was hoping that his op-ed would persuade the justices of the lack of legal merit of the attack on the individual mandate. But given the high ratio of political posturing to legal analysis in his op-ed, the more compelling reading is that Tribe was trying to bully his “friends on the court.”

3. As for those “friends on the court”: (a) Note that Tribe doesn’t hesitate to refer to Kennedy as the “swing justice” in his own remarks, even as his op-ed calls the label an “unfair[] caricature.” And, of course, this is the same Tribe who, in his letter to President Obama urging him not to nominate Sonia Sotomayor to the Supreme Court, warned of the need “to prevent Kennedy from drifting” in an unwelcome direction and to appoint a justice who has “a purchase on Tony Kennedy’s mind.” With a friend like Tribe, Kennedy needs to watch his back. (b) Of the other justices Tribe was “sort of speaking to” in his op-ed—that is, Roberts, Scalia, and Alito—I wonder which of them Tribe imagines to be his “friends.”