Bench Memos

ObamaCare and the Meaning of (Akhil Amar’s) Life

I thought at first I was reading The Onion when a friend sent me a link to the latest handwringing performance of the Washington Post’s Ezra Klein, engaged in preemptive discrediting of the Supreme Court just in case it rules against ObamaCare in whole or in part.  Noted constitutional expert Klein, relying in part on noted constitutional expert Kevin Drum of Mother Jones, says this would be it, the last straw, the final nail in the coffin of any decayed trust we might once have had in that august institution called the Supreme Court.  Why, you have noticed, haven’t you, that the justices are appointed by presidents who belong to political parties–that the justices themselves belong to political parties and have partisan histories–that the parties have differing views of the Constitution–that presidents and senators have hopes and fears about what the justices might say about the issues to be settled under the Constitution?  You say you haven’t noticed?  Well, bub, I’m here to tell ya!

Then Klein rings up Akhil Reed Amar (whose name he cannot spell) at Yale Law School, who gives him this choice quotation:

If they decide this [against ObamaCare] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty

Professor Amar has done some interesting work as a scholar (I once gave one of his books a largely favorable review in NR).  But he has been a happy member of the liberal legal academy for about three decades now, at the very least complicit in its commonplace attempts to bend the Constitution this way and that for ideological purposes.  “Law” has always “mattered” to the legal professoriate, the way a wrecking ball has mattered to a demolition crew.  “Law” has been subordinated to politics by the elite members of the legal academy since . . . well, roughly since one could begin using the phrase “legal academy.”  Professor Amar has not been one of the worst offenders.  But I have never known him to complain about those to his left who have been.

It really is quite hilarious to see Amar reach for a pathetic effect, as though he were Princess Leia (“Help me, Obi-wan Kennedy, you’re my only hope!”).  His whole life will be a fraud, a meaningless waste of years spent toiling under the illusion that “law mattered,” if the Court goes 5-4 against ObamaCare.  Come on, you justices, get it right!  Do it for little Akhil!  On your heads be it if he suffers from depression after your decision!

Question: If the Court goes 5-4 in favor of ObamaCare, will that be, you know, like, a totally okay, nonpartisan, statesmanlike decision?  Just asking.

Moving from the hilarious to the vicious, Klein then describes what he thinks is the partisan social milieu of Supreme Court justices–or at least of the conservative ones–and then writes: “Imagine what would happen to Thomas socially if he was the deciding vote to uphold the law.”  A sentence like that could only be written by someone who doesn’t know the first thing about Clarence Thomas.  If there is a more courageous man in American public life, entirely heedless of what others think of him where he believes a principle is concerned, I cannot imagine who it would be.  I’ve said it before: Thomas’s My Grandfather’s Son deserves a place in any curriculum of classic African-American memoirs alongside the autobiographies of Frederick Douglass, and Booker T. Washington’s Up From Slavery.  Klein should be ashamed of himself, for that sentence alone.

For my part, I have never actually believed that any of the justices (or law professors, for that matter) with whom I most strongly disagree are motivated by narrow partisan concerns about who wins elections or which party’s legislation gets upheld.  I think they have cockeyed ideas about what the Constitution means, about the proper scope of judicial power, and about the kind of society they envision for our future.  These may in some sense be disputes about politics, but they are not about partisan advantage.  What is most dismaying about the left’s attack on the Supreme Court, dating most clearly from Bush v. Gore (now frequently mentioned yet again by screed artists like Klein), is the extent to which its leading figures in journalism and the academy, having lost most of the arguments over ideas, have taken to describing Supreme Court decisions they dislike as partisan acts, not as judgments of whose errors as legal performances they can give a reasoned account.

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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