The Magazine

Inside the Liberal Bubble

From The Scrapbook

Apr 9, 2012, Vol. 17, No. 29 • By THE SCRAPBOOK
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In Solicitor General Donald B. Verrilli Jr.’s closing arguments before the Supreme Court in defense of Obama-care last week, The Scrapbook couldn’t help but notice a rather desperate gambit. He twice defended the health care law’s constitutionality by arguing it will help secure the “blessings of liberty,” as if the phrase stated in the Constitution’s preamble is a catchall that trumps the limits on federal power of the Constitution proper.

Talk about a tell. Blogging at the Volokh Conspiracy, George Mason University law professor David Bern-stein summed it up: 

If anything, I think a typical reaction of Federalist Society types [i.e., judicial conservatives] is that reliance on the preamble [is] the last refuge of those who don’t have a serious constitutional argument to make; “you mean you’re not an originalist or a textualist and you want us to engage in ‘living constitutionalism’ with regard to all sorts of very specific and substantive constitutional provisions, but then you want us to take the preamble seriously?”

This grasping at straws was just the capstone to what even liberal observers admitted was a week of self-immolation for Verrilli in response to conservative justices’ basic questions about limits on federal power. It’s not like Verrilli should have been blindsided by conservative concerns that Obamacare’s health insurance mandate exceeded constitutional constraints. If he had read the opposing briefs and lower court decisions, absolutely nothing the justices asked him should have been surprising.

However, he wasn’t the only one caught flatfooted by a critical court. Recall that when Nancy Pelosi was asked about the constitutionality of Obamacare back in 2009, she responded as if she were being asked about a sighting of Bigfoot: “Are you serious? Are you serious?” The week before the case, the New York Times’s Linda Greenhouse actually griped that the media were failing “to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win.” Whatever the outcome of the case, no one serious (and by that we mean deeper thinkers than Greenhouse and Pelosi) believes that now.

Having already expressed complete disdain for the briefs against the mandate, Slate legal analyst Dahlia Lithwick wrote a column following Verrilli’s catastrophic debut—and by “wrote a column” we mean had a public breakdown—contending that people who disagree with her particular brand of constitutional Rorschach analysis think freedom is a “dark, dark place” and want to turn the clock back to 1804.

Also last week Senator Richard Blumenthal (D-Conn.) held a press conference essentially trying to bully the Court, warning of “grave damage” to its reputation if the Obama-care health insurance mandate is declared unconstitutional. “The Court commands no armies, it has no money; it depends for its power on its credibility,” said Blumenthal.

We probably weren’t the only ones to hear echoes of Stalin’s famous gibe: “The pope! How many divisions has he got?” (And speaking of armies and credibility, this is the same Senator Blumenthal who repeatedly and falsely claimed while running for office to have served in Vietnam.)

The prize for unhinged emotionalism, however, has to go to Atlantic writer and 60 Minutes legal analyst Andrew Cohen, who wrote, “The arguments in the Care Act cases may be funny to Justice Antonin Scalia, the bully that he is, but they aren’t funny to the single father who will avoid bankruptcy because of the law.” Note well, wisecracking justices: No comic relief during those tedious hours of oral argument or you will be found in contempt by Cohen.

Until the Court rules on the mandate, it’s Anthony Kennedy’s world, and we’re just living in it. But we can safely say that no matter what happens, it will be near impossible to ignore or dismiss the arguments against the mandate from now on. Not completely impossible, though. Liberals can still follow the lead of the New York Times’s Gail Collins, who reacted to last week’s arguments as follows: “I have my hands over my ears. Not listening.”

Collins thus is the very model of the modern liberal: living in an ideological bubble, deaf to all other arguments, and proud of it.

God and Man at Vanderbilt, cont.

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