Bench Memos

A (Limited but Ungrudging) Apology to Akhil Amar

Yesterday I posted a comment here about Ezra Klein’s latest contribution to the advance critique that if the ObamaCare case comes down against the law’s constitutionality in whole or in part, it will be because of pure “partisanship” by the Republican-affiliated justices on the Supreme Court.  I particularly held up for ridicule a fairly hyperbolic lament by Yale’s Akhil Reed Amar that a closely-divided adverse ruling would convince him that his life has been a fraud, and that after all law doesn’t matter, but only “politics, money, party, and party loyalty.”

Professor Amar contacted me to object particularly to one sentence where I remarked that “I have never known him to complain about those to his left who have been” among the “worst offenders” in subordinating the law to political ends.  He supplied me with ample evidence of sharp criticisms he has from time to time published of fashionable positions taken in the mainstream of the liberal legal academy.  Professor Amar has published a lot, and I have not read it all, so that particular comment was ill-informed.  I retract it, and apologize for it.

I continue to think it was an irresponsible contribution to the public discussion of the pending health-care decision for Professor Amar to chalk up the expected negative votes of some yet-unknown number of the justices on the constitutionality of the law to partisanship in some narrow sense.  (And how did “money” come into the picture, for goodness’ sake?)  I reiterate what I said yesterday, that Professor Amar has written interesting work.  But that makes it all the more disappointing to see him feed red meat to the likes of Ezra Klein.

I hope, however the case comes down next week, supporters and critics of the ruling will try to confine themselves to discussion of the credence they can give to the arguments in the opinions, rather than muttering darkly about motives among the justices that they can, in truth, know nothing about.

I also hope that Professor Amar will take my persistence on this point as not detracting from the unstinting apology above for an unjust characterization!


Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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