The reaction on the left and right yesterday was telling. On the right was relief and confidence. Justice Anthony Kennedy has not been bamboozled by the new justices. He understands that the Obamacare defenders have no constitutionally significant bright line (or even a dull one) between Congress compelling purchase of insurance and compelling purchase of other goods and services.
The left expressed two distinct sentiments. The predominate one was a freak-out. “Train wreck!” It’s a “disaster” they moaned. The other was a vague (understandable, given the absence of concrete evidence) and self-delusional chatter that somehow Justice Kennedy was wavering. On this last point, I would suggest the hopeful lefties actually read the entire court transcript and consider whether he spotted a coherent manner to line-draw and save the statute. Do they hang their hats on his comment at the end of two hours of argument that young non-purchasers of insurance sort of come close to affecting “commerce”? (Those who have followed Kennedy all too closely spot the common feint of showing fleeting interest in an argument; Not a bad way to snag the job of writing the majority opinion.)
What is going on here is the result of inattention and even contempt for the Constitution that has infected what passes for liberal jurisprudence over the past 30 or 40 years. What I mean by this is that in law schools, law journals and legal scholarship the left has dismissed out of hand textualism (what some call originalism) in constitutional and statutory interpretation. It’s all a cloud of values, international norms, societal consensus and fuzzy empathy. In essence, the left ceased to be interested in research and perfecting arguments that were grounded in the words of documents and the intent of the drafters. They unilaterally disarmed just as conservative jurists and scholars were beefing up, studying historical text, perfecting their analytical skills.
What we saw yesterday wasn’t a poor performance of the solicitor general but the total out-lawyering of an intellectually lazy style of jurisprudence that has not served the left well.
We’ve seen this before, in the Second Amendment analysis and triumph of originalists. The left never imagined the Second Amendment conveyed an individual right and didn’t care to investigate the issue seriously. The left was shocked, just as we saw yesterday, to find out how compelling are the text and intent of the Constitution.
The problem is not simply one for lawyers. Liberal elites in media and elsewhere need to rethink their penchant for assuming that what is politically desirable is constitutionally sound. They have to understand basic concepts: Ends that can be obtained by other means (e.g., taxing) do not convey legitimacy on any and all means. Unless and until they take constitutional scholarship seriously, they will be repeatedly surprised and embarrassed.