As we all await the decision of the United States Supreme Court in the health care case, there are evident signs that ardent liberals have freaked out about the current state of political play. James Fallows has a post up at the Atlantic entitled "5 Signs of a Radical Change in U.S. Politics." Its original title was “5 Signs That the United States is Undergoing a Coup,” which even he recognized was a bit over the top.
What is most surprising about his brief effort, and the somewhat longer effort on which it is based, is that it is devoid of argument. There are many statements of the sort that Chief Justice Roberts and Justice Alito have changed their spots since the statements that they gave during the confirmation hearings about the importance of judicial humility and deference. And there are further remarks to the effect that the professoriate thinks that the health care law is constitutional but believes that it will be struck down, and that Citizens United is the incarnation of evil with respect to the First Amendment.
But what is lacking is any argument as to why the views that Fallows defends are right on the merits. At no point does he actually quote text to support his position, and the view that deference should be so broad as to leave the Supreme Court little more than a rubber stamp of Congressional behavior is not all that appetizing either.
There is, of course, not the slightest mention that the progressive decisions that Fallows regards as sacred text represent a huge unauthorized expansion of federal power in the New Deal period—originally by a 5-to-4 vote in NLRB v. Jones & Laughlin Steel, which fashioned arguments out of whole cloth to uphold the National Labor Relations Act, which had been previously been struck down by three Circuit Courts of Appeal. Here is one such decision, which treats the case as a no-brainer against the government:
One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In respect of the former, he is subject only to regulation by the state; in respect of the latter, to regulation only by the federal government. Utah Power & L. Co. v. Pfost, 286 U.S. 165, 182, 52 S.Ct. 548, 76 L.Ed. 1038. Production is not commerce; but a step in preparation for commerce. Chassaniol v. Greenwood, 291 U.S. 584, 587, 54 S.Ct. 541, 78 L.Ed. 1004.
That history of course now recedes into darkness. In its place we have a new species of constitutional argument that becomes a game of gotcha. None of the statements by Roberts and Alito were made with the provisions of the health care bill in view, and the conflict in question can arise in one of two nonexclusive ways: Congress can claim new powers or the Court can try to contain older ones. There is no way to tell what is going on from Fallows' account.
It is a sorry day when indignation is a substitute for argument. If Fallows has a beef against decisions that he hates, he should state what they are, so that someone could try to answer them. But ad hominem arguments against sitting justices carry no weight against those of us who have never marched under the banner of judicial restraint in the first place. Living in a closed intellectual universe does no one any good. And in Fallows' case, it makes him ill-equipped to deal with any arguments to the contrary.