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Posted at 4:38 PM ET, 02/ 2/2011

Rebuttal to Ezra Klein: Supreme Court justices aren't bloggers

By Jennifer Rubin

Ezra Klein finds a "conservative legal" scholar to opine on whether the Supreme Court will take the ObamaCare case. Unlike every law professor and advocate whom I have talked to in the last two years on this case, Ezra's gal or guy says the court won't bite. But wait.

I plead guilty to being a lawyer and to practicing law for over 20 years. So maybe I am still in "recovery," but I think Ezra's missed the mark, badly. First, the bald assertions in and of themselves aren't particularly persuasive, but it's impossible to know how to evaluate the so-called "conservative," whom Ezra is using as a foil. Is he an originalist? Did he support the lawsuit, or was he one of those pooh-poohing its filing and its underlying rationale? And, frankly, unlike politicians, virtually every "conservative legal scholar" is more than happy to go on the record, so I find it especially odd that this one does not. And by the way, he really thinks the 11th Circuit is going to reverse Judge Roger Vinson? C'mon.

Moreover, with all that legal baggage I carry around, I am compelled to dispute Ezra's assertion that the court will not take the case because Ezra considers "the courts quite -- though not entirely -- politicized. And this is politically too big and too charged of an issue for these guys not to have developed strong opinions on."

What is the basis for this assertion? From the perspective of people who understand how the Supreme Court works -- those of us who take the Constitution seriously, those who have practiced law, those who have worked or clerked for the court, those who have written fine books (such as Jan Crawford Greenberg) and, I can say with perfect certainty, the justices themselves -- this is simply wrong. It doesn't represent how the justices think and how the institution operates.

It's quite fashionable among far-left legal critics -- who assert the courts are just putting on a show to disguise the whims of the judges -- to toss about this stuff. But in the real world, the court does not act as an arm of Congress, the political parties or the blogosphere. I may not agree, for example, with the method of Justice Breyer's constitutional approach, but I have no doubt he is trying to get it "right" and is quite indifferent to the election calendar.

Let me recommend a trip over to the Supreme Court. I went yesterday, and it's a gorgeous building with accessible displays and a fine curator. (Plan for more than an hour; there is a cafeteria, the quality of which I can't vouch for.) It was a timely reminder that the court is fundamentally unlike the two political branches, and the justices, from Sonia Sotomayor to Antonin Scalia, regard themselves not as political players but as judges. There is a difference. And the difference, for those of us who understand governance in a constitutional democracy to be more than the sheer exercise of power, is a critical one. The court, when it hears the case -- and it will unless the health-care law is repealed before they have the opportunity -- won't decide the case based on CBO numbers, polls or the favorability ratings of the presidential candidates. They are, for goodness sakes, not bloggers or political apparatchiks.

By Jennifer Rubin  | February 2, 2011; 4:38 PM ET
Categories:  law  
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Oh come on, let's get serious here. It's headed up to the Supreme Court, where there's already a 4-4 split. The future of this health care bill, and health care in the United States, will be legislated from the bench by a politician in a robe, by the name of Anthony Kennedy. It has nothing to do with what the law says. It has to do with whether one Anthony Kennedy agrees with the law personally, or not. At this point I'd say I'm leaning towards predicting he doesn't like it. Utterly shameless, and a member of Movement Conservatism, it's probably toast.

Posted by: getjiggly2 | February 2, 2011 4:48 PM | Report abuse

Jennifer Rubin - 1
Ezra Klein - (who?)


Posted by: metanis | February 2, 2011 5:05 PM | Report abuse

So Jennifer, who uses anonymous sources all the time as a way to buttress her points, is attacking Ezra for using an anonymous source, and taking it even further by suggesting that Ezra's source may not be a real conservative legal scholar because Jennifer has no way to evaluate if he meets her standards for what a conservative legal scholar should be.

I would assume from this point on that Jennifer will no longer use anonymous sources in her columns. It seems only fair that her readers be able to judge for themselves how to evaluate the people she is leaning on to support her points, and we certainly cannot do that if they are not identified.

I think it is fine to dispute Ezra's conclusions, but do that directly rather than just attacking him for doing what you do yourself in your own columns.

Posted by: mustangs79 | February 2, 2011 5:09 PM | Report abuse

As the old saying goes, when the only tool you have is a hammer, every problem looks like a nail. I've read enough of Ezra's columns to understand that his sole "tool" is liberalism, and every problem according to his worldview is solved by more and more government.

P.S. Regarding another person that Jen doesn't see eye-to-eye with (Sarah Palin), be sure to read James Taranto's "Best of the Web" today for a little more balance than what Jen normally provides.

Posted by: coffeetime | February 2, 2011 5:17 PM | Report abuse

Ezra Klein understands our legal system as well as my dog understands quantum mechanics.

Posted by: eoniii | February 2, 2011 5:24 PM | Report abuse

Well, yes. One can never speculate about Constitutional rulings, because, you know, the Constitution is over 100 years old and not always clear on in the import of its individual clauses and the way in which those clauses fit into the body of the document. Fortunately, in this case there is sufficiently little room for plausible Commerce Clause argument: the powers of Congress are either enumerated and at least minimally circumscribed or they are not. Because the answer is quite ostentatiously clear and it is yes Obamacare must necessarily go down. Beyond that, while Justice Kennedy has, often, and not inaccurately, been considered somewhat swingy, he has actually been a reasonably reliable Constitutionalist vote on this issue and given the very extreme nature of the Commerce Clause claim there is reason to think he may rule this way.*

*Indeed, he ruled precisely this way in a case I had before the Court and even cited the specific argument pertaining to the alleged violation of the Commerce Clause I had proposed in my brief. (Well, OK, I was a research assistant for the professor who actually wrote the brief and argued the case but I did write a couple of footnotes under that specific argument and several more in a related law review article she wrote. So there).

Posted by: cavalier4 | February 2, 2011 5:25 PM | Report abuse

Come on, Jennifer, a 26 year old liberal blogger is just as smart about law as a conservative who practiced for 20 years. Don't you know that? /snark.

Posted by: sold2u | February 2, 2011 6:05 PM | Report abuse

If you're going to brandish your legal expertise so many times in one post you should probably make sure you correctly read and understood what you are commenting on. Ezra was offering his friends view as a counterpoint, he agrees with you that the case will go to the Supreme Court.

Posted by: mnielse1 | February 2, 2011 6:18 PM | Report abuse

Ezra Klein doesn't know what the hell he's talking about? Who saw that one coming?

Posted by: mgmax | February 2, 2011 7:28 PM | Report abuse

Quick question for Jen: does Elena Kagan have to recuse herself from the impending healthcare case in the Supreme court? If she does, how would Kennedy likely vote? Kennedy would likely be the decisive vote regardless, but if Kagan can't rule and Kennedy sides with the healthcare law, our nation would end up with even more uncertainty with a 4-4 split. The future of healthcare would likely be determined by the 2012 election instead of the constitutionality of the individual tax. Personally, I think not having a decisive judicial outcome to the constitutionality of this law would be terrible. The healthcare law establishes a huge precedent as its lawful implentation would allow the federal government to tax so many other areas traditionally considered the domain of states if not individuals alone, denying states their role as the laboratories of democracy and individuals freedom of choice.

Posted by: m8r6 | February 2, 2011 7:45 PM | Report abuse

m8r6 – I am not a lawyer, but the issue of Kagan having to recuse herself from ObamaCare matters did come up during her confirmation hearings:

//At her hearing, Kagan answered that she hadn't when Senator Coburn asked her, "was there at any time you were asked in your present position to express an opinion on the merits of the health care bill?"//

See this link for further links to the background and other issues associated with her answer:

Posted by: SCMike1 | February 2, 2011 9:09 PM | Report abuse

Kagan has already said she will not recuse herself. Google it.

Posted by: getjiggly2 | February 2, 2011 10:24 PM | Report abuse

You're insulting your dog eonii. Rick Feynman R.I.P. would say NOBODY understands quantum mechanics! I think (therefore I must be dissuaded by the record) that the source is David Souter. Much too lazy/busy (multiple guess) to do the google.

Posted by: aardunza | February 2, 2011 10:43 PM | Report abuse

why why WHY WHY WHY does that 15-year old clown ezra klein get a national media platform to spout his left wing garbage? he's a few years out of college FFS.

Posted by: jimmyjohns | February 2, 2011 11:19 PM | Report abuse

Its hard to imagine how the SCOTUS could "not take the case". Several federal district courts have already ruled, 2 famously found Obamacare unconstitutional in all or part, others have found it constitutional. If the circuit courts also disagree the law could be valid in one region and not in another, clearly an unsustainable situation. Therefore it does seem likely that Anthony Kennedy will decide if the individual mandate passes constitutional muster. But this is just one more consequence of the transformation of the SCOTUS into a super-legislature of 9. Its a little late in the day for liberals to complain about this, after decades of celebrating the wisdom of Brennan etc.

Posted by: mikem23 | February 2, 2011 11:29 PM | Report abuse

First, Jennifer Rubin schools Dana Milbank. Then, Ezra Klein.

I don't know the Post is paying Ms. Rubin, but whatever it is, it ain't enough.

You go, girl!

Posted by: WashingtonDame | February 3, 2011 8:30 AM | Report abuse

Of course the case will go up and of course the Court will take it. Anyone who predicts the Court won't is either lying about his/her true feelings based on an agenda, or engaging in serious denial, wishful thinking, etc.

I will go further and predict that the Court will not only kill Obamacare, it will trash years of Commerce Clause precedent. Or maybe this is wishful thinking on my part.

Posted by: questioneverything | February 3, 2011 9:00 AM | Report abuse

EK is so far out of his depth -- once the conversation departs from where the cool 20-somethings drink beer in the evenings -- that a person doesn't really know what to do about the Post. Except not buy it anymore.

Maybe he should get a job as a J.Crew model or something. He can tousle his hair with the best of them.

I'm just wondering what a few of the hardbitten pros who must still frequent that newsroom think of Wonderboy. Do they trust him enough to send him out for coffee?

Posted by: IowaHawkeye | February 3, 2011 10:00 AM | Report abuse

Don't blame young Ezra. He's just repeating the current Journalist talking points.

Posted by: Bobo4 | February 3, 2011 10:35 AM | Report abuse

I'm so happy that JR is working for the Post. She will make the paper better and more interesting. She will make a lot of the Post's writers think harder with her bracing critiques. I hope they have the courage to engage her fairly.

Posted by: raskolnik | February 3, 2011 10:41 AM | Report abuse

Jennifer is right--she is a recovering lawyer who has not fully recovered. For anyone to believe that the Supreme Court is not completely politicized stretches naivete' beyond the breaking point. Jennifer appears to be, still, right in among the trees and completely unable to see the forest for them. The Court is a charade. Vinson got it entirely right. Any court that overturns him will do so purely for reasons of political bias. There are Progressives on the Court. Progressives simply do not accept the Constitution as binding on anything. They tie themselves in ridiculous knots to avoid it. Case in point: Roe v. Wade established that fetuses are property, entirely, of the pregnant woman in whose womb they are developing, and are not human beings, until they are born, when, suddenly, they are transformed into pumpkins, er, human beings. In arriving at this amazing conclusion, the Supreme Court established a right to privacy and affirmed substantial due process that derived from the Dred Scott case--WOW--a case that affirmed the practice of slavery was critical to affirm the practice of abortion through term. God spare us from the reasoning of the Court if this is NOT a result of bias. I will henceforth and forever not take Jennifer Rubin seriously.

Posted by: kentjlyon | February 3, 2011 11:00 AM | Report abuse

@mustangs79 - I think there is a distinction to be made between using anonymous sources to provide factual information otherwise unavailable, and anonymous sources to provide authority for what is speculation and opinion about the future. I am not sure that is the difference here, but it might be.

Posted by: DeBaron | February 3, 2011 11:03 AM | Report abuse

I really don’t know why people take Mr. Klein so seriously. There isn’t a 1L in America who doesn’t know more about the Constitution than Mr. Klein, so perhaps he should have a bit of humility before opining about on matters of Constitutionality. Better yet, perhaps he could audit a Con Law class, or read a primer, but that would assume that he actually cares to know what the heck he is talking about. IMO, an overabundance of ego, combined with politicing everything and a myopic view of events leads to embarrassing posts like Mr. Klein’s.

Serious legal minds have legitimate disagreements about the scope of the Commerce Clause. I don’t think that an honest person can read an opinion like Wickard, and say to know with certainty how it will turn out because the “passive inactivity” of the Individual Mandate is a somewhat unique situation that Commerce Clause precedent not entirely on point. If Mr. Klein had more intellectual integrity, he could make an actually useful blog post describing the Commerce Clause precedent, and how the four District Court opinions reached differing conclusions.

While I’m predisposed to Professor Barnett’s interpretation, I also recognize that his argument has some shortcomings, and reading the recent District Court opinions, I can’t say with certainty exactly how precedent should apply to the Individual mandate. There is no doubt in my mind that the Justices will engage in an honest and well reasoned analysis of Commerce Clause precedent and viewed through the prism of their own deeply held view of Constitutional interpretation reach the opinion they believe is correct. Klein’s naked cynicism is more of a reflection of his own view of politics that places the political end above the integrity of the process, which is absolutely essential in a constitutional republic if we really care about rule of law and protection of individual rights.

Posted by: *JRapp | February 3, 2011 12:03 PM | Report abuse

I will accept Jennifer Rubin's assertion that the court is above politics when she can find the right to privacy in the Constitution that Justice Blackmun found in Roe v. Wade.

Or even how two Democratic-appointed judges and two Republican-appointed judges can look at the same law and come up with two conclusions that match their ideologies. What are the odds?

Posted by: Bill_Peschel | February 3, 2011 12:41 PM | Report abuse

You have to give Ezra credit:

The boy sure can type!

Posted by: susangorgo | February 3, 2011 1:03 PM | Report abuse

Once upon a time Judges interpreted the constitution. And believe it or not Congress actually understood that. Hell they even realized that if they were going to infringe upon Americans right to indulge in adult beverages they would have to adhere to the mechanisms laid out by the founders to amend the document. Those days are long gone and have been replaced with a fairy tale fantasy.


Posted by: donabernathy | February 3, 2011 1:17 PM | Report abuse

The first poster here is right: Anthony Kennedy will decide this issue. All the Supreme Court justices vote their personal preference on a huge case like this, then back fill with a bunch of rubbish about why they voted the way they did (if they even have to write anything at all). Why would Kagan or Thomas vote otherwise? Think Kagan got a seat on the Supreme Court so she could please conservatives? She'd rather be burned alive.

Posted by: BillCarson2 | February 3, 2011 1:21 PM | Report abuse


"I will go further and predict that the Court will not only kill Obamacare, it will trash years of Commerce Clause precedent. Or maybe this is wishful thinking on my part."

One can hope... Google 'Wickard v. Filburn' and read the wiki article about this 1942 decision. If that's not CC 'overreach" I don't know what is.

Posted by: RidgeRunner1 | February 3, 2011 1:27 PM | Report abuse

Obamacare will be decided in 2012 by the voters regardless what the courts do. As for Ezra, he's nothing more than a clown.

Posted by: Red_mass | February 3, 2011 2:31 PM | Report abuse

and, if Justice Sotomayor recuses herself (which she in all reality should since she was involved in discussions surrounding the development of this law in her former role as Solicitor General), then it is 4-3 with Justice Kennedy the remaining vote...

Posted by: TxSaintFan | February 3, 2011 3:01 PM | Report abuse

Better than Ezra :D

Posted by: acronon | February 3, 2011 3:58 PM | Report abuse

Is there any thought that Justice Kagan will have to recuse?

Posted by: Ashland | February 3, 2011 5:11 PM | Report abuse

Is there any thought that Justice Kagan will have to recuse?

Posted by: Ashland | February 3, 2011 5:15 PM | Report abuse

Wow. That was an impressive B-slap.

Posted by: HughJassPhD | February 3, 2011 8:48 PM | Report abuse

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