The Ineffective Greenhouse

The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.

The Ineffective Greenhouse
Linda Greenhouse is something of an institution of legal journalism. She became the New York Times’s Supreme Court correspondent in 1978. Thirty years later, when she accepted an early-retirement package from the financially stressed newspaper, Legal Times reported that a 7-2 majority of the justices threw a going-away party for her, “complete with cheese, desserts, and prosecco wine.”

Greenhouse still writes for the Times, only she’s moved to the editorial page’s “Opinionator” blog. Last night she weighed in with a revealing post about the ObamaCare cases, in which the high court hears oral arguments next Monday through Wednesday and is expected to issue a ruling at the end of its term in early summer. She opens with a close examination of her own venerable navel:

Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.

Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win.

The way to do what Greenhouse wishes to do–let readers in on the “fact” that one side in this litigation “doesn’t deserve to win”–is by doing what Greenhouse has done, namely become an opinion writer. A judgment about which side deserves to win a legal case is not a fact but an opinion. Even when it is authoritative, as it will be in this case when a majority of the justices hand down a ruling, it is still an opinion, often accompanied by differing opinions known as dissents and concurrences.

Greenhouse is not a judge, so her opinions are no more authoritative than those of your humble columnist. What’s more, on the merits, her opinion on the ObamaCare case is shallow, disingenuous and silly:

I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count–I probably missed some–not counting such other formulations of the same thought as “novel” and “first ever.” O.K., I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.

Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement. . . .

The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. . . . So there must be some problem with the Affordable Care Act other than “never before.”

Although we’ve elided some of Greenhouse’s verbiage, this is a fair representation of her argument, if one can call it that. It boils down to repeatedly sneering at the word “unprecedented” as if the litigants’ claim were no more than that ObamaCare’s individual mandate is a new development in politics or policy. She simply ignores the legal significance of ObamaCare’s lack of precedent.

That significance is great. “The command of precedent has deep roots in Anglo-American legal tradition,” one Supreme Court observer has noted. “Lawyers and judges often use the Latin phrase ‘stare decisis,’ meaning ‘to stand by things decided.’ ” The court has never decided the question posed by ObamaCare: whether the Commerce Clause gives Congress the power to require that individuals purchase a financial instrument from a private company. Since no existing precedent authorizes the individual mandate, the court can strike down the ObamaCare mandate without offending stare decisis.

The Supreme Court observer we quoted in the preceding paragraph was none other than Linda Greenhouse, writing in the Times in 1991. Unless she has forgotten such an elemental legal principle, her mockery of the litigants for noting that ObamaCare is unprecedented is not merely ignorant but intellectually dishonest. She is trying to mislead her readers, and possibly herself, into thinking that the case against ObamaCare is without merit.

To say that the case is not without merit is not to say that it will prevail. Greenhouse writes that she expects the court to uphold ObamaCare “by a wide margin,” although she acknowledges that her prediction isn’t guaranteed to pan out. Our sense from our own private conversations is that a considerable number of elite conservative lawyers agree with Greenhouse about the likely outcome of the case (if not the merits). It is quite possible that they, and she, will turn out to be right, but we are not at all convinced.

For one thing, the justices who will decide the case surely understand that they will be making new law if they uphold the individual mandate as surely as if they strike it down. Greenhouse unwittingly acknowledges this point even as she tries to deny it:

If [as the court held in Gonzales v. Raich in 2005] the commerce power extends to backyard marijuana growing (as it did to backyard wheat growing in the famous New Deal case of Wickard v. Filburn), the notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.

This is the slippery slope as an affirmative argument. Undeniably the court has–wrongly, in the view of some observers, including this columnist–interpreted the Commerce Clause as granting vast powers to Congress. In Greenhouse’s mind, there is no distinction between vast and unlimited. As far as she’s concerned, the Congress has the authority to “basically do whatever it wants.” Is the Roberts court really prepared to endorse such a radical principle? Color us skeptical.

One reason for our skepticism is political. Wickard was one of a series of New Deal-era cases in which the Supreme Court, under pressure from a popular president at a time of national crisis, greatly (though not infinitely) expanded Congress’s power under the Commerce Clause. Raich, which currently defines the outer bound of congressional commerce power, involved the enforcement of federal drug laws, which have wide (if somewhat dwindling) popular support.

By contrast, ObamaCare is widely hated. Greenhouse cites a recent Kaiser Family Foundation survey finding that a majority of Americans would like to see the court overturn the individual mandate. A Gallup poll put the figure at 72%. One theory behind the speculation that the justices will uphold ObamaCare is that they wish to avoid the damage to their authority that might come from a “partisan” ruling à la Bush v. Gore. (This assumes, correctly in our view, that a ruling against ObamaCare will be 5-4, with all Democratic appointees in dissent.)

But if the court is looking to protect its authority among the general public as opposed to within the liberal elite, it would make sense to strike down a law that has always been unpopular. (As legal scholar Daniel Conkle notes, the court has one other alternative: to decide that the Anti-Injunction Act of 1793 renders the constitutional question not yet ripe for litigation.)

There is an assumption among the conservative elite that the court, and in particular Justice Anthony Kennedy, is especially attuned to liberal elite sensitivities. Dahlia Lithwick, Slate’s younger, edgier version of Linda Greenhouse, explained and disputed it back in 2005:

“The Greenhouse Effect” is the name of a phenomenon popularized by D.C. Appeals Court Judge Laurence Silberman referring to federal judges whose rulings are guided solely by their need for adulation from legal reporters such as Linda Greenhouse of the New York Times.The idea is that once confirmed, justices become desperate to be invited to the right cocktail parties and conform their views to those of the liberal intelligentsia. Robert Bork recently told the New York Times, “It’s hard to pick the right people in the sense of those who won’t change, because there aren’t that many of them. . . . So you tend to get people who are wishy-washy, or who are unknown, and those people tend to drift to the left in response to elite opinion.” Similarly, Max Boot argues that Anthony Kennedy “is no Warren or Brennan, to be sure, but whenever he has a chance to show the cognoscenti that he’s a sensitive guy–not like that meany Scalia–Justice Kennedy will grab at it.”

The problem with this theory is that it accepts a great conservative fiction: that there is vast, hegemonic liberal control over the media and academia. This may have been somewhat true once, but it’s patently untrue today.

At least with respect to the media, we agree with the thrust of that last sentence, though we’d reverse two of the words: This may have been patently true once, but it’s somewhat untrue today. Still, it is manifestly true that the liberal intelligentsia does not have as much power as it used to.

To judge by Linda Greenhouse’s inane post–in which, as National Review’s Ed Whelan notes, she actually cites Nancy Pelosi as an authority on constitutional law!–it doesn’t have much intellectual power either.

For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.”