Volokh Conspiracy, to cite Orin Kerr (the "reasonable conservative" with passive aggressive tendencies), is full of posts in "advocacy mode" that provide various tiresome tropes on how "the left" is trying to "intimidate" John Roberts in the PPACA lawsuit and other such things. It is oh so tiresome and reflects a thread of online conversation that is muy annoying -- the inability to skip pass stereotypical arguments that cloud the waters. The idea there is no "limit" on the Commerce Clause, for instance, as if the Bill of Rights et. al. (limiting what is "proper" in respect to executing it under the Necessary and Proper Clause) doesn't put a limit even beyond limits in place in regard to the clause itself. Why exactly don't those limits count? Put aside "unprincipled" = "I don't agree with it" a bit too much.
This is in place on both sides. For instance, this is another in a serious of posts on the limits of the "bully pulpit." That is fine, but the example is not an isolated case. There is some (limited) affect here. The problem is people expect too much of it, not that has no effect. If pressed, he would admit this, but he spends a lot of time ridiculing those who argue that the bully pulpit of the presidency matters. A comment underlines the point, one that might be missed unless you closely read what he says (this simply is not done here -- there is much too much out there to carefully read each blog post; it is like someone who told me that if I only read the brief -- something like fifty pages -- I would see I was wrong when it sometimes seems like even judges don't do a good job there):
And, in general, hard questions are not easy.* People like to make it so, so Scalia -- according to one PPACA constitutionality supporter -- doesn't like druggies, so finds a way to differentiate between a stand alone law involving possession of guns (Lopez) and a medicinal marijuana law that fits into a wider regulation of the interstate and international regulation of drugs (Raich). Putting aside the sixth vote (Kennedy) didn't find a "drug exception" when euthanasia drugs were involved (stereotypical Catholic beliefs would suggest his position there would be the same as abortion), there are significant differences here, and not of the "red" and "green" car variety. I myself think a case can be made to split the two cases. But, sure, it is merely that Scalia is an unprincipled hack.
Turns out that the Constitution is full with things where there is a lot of reasonable debate and the answers are not all slam dunks, even when they are correctly decided. I think -- unlike abortion or the death penalty -- that the arguments against the PPACA are particularly lame. Still, even on that level, there are matters of degree. The "support me or Congress will have unbridled power" brigade is particularly lame. There still is a way to be principled here and more easily other areas. And, it would be easier to debate such principles if over the top rhetoric and claims are avoided.
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* For instance, the book I just cited, by a liberal sort, provided a reasonable explanation about how the UN Charter made "war" somewhat obsolete since it could only under international law now be waged for limited reasons. This doesn't erase the need for military force and congressional involvement in its use, but "declarations of war" as such might not be used in most cases. The policy validity is another matter.
Likewise, he gave a sort of pro-prosecution argument against the death penalty, other than the concern for bad counsel and (something I am concerned about) the fact that many heinous crimes are in effect done by the mentally ill. He argued that judges put limits that flow over to non-capital cases where they (if they ever were) are much less justified. This is somewhat comparable to those who fear trying terrorists in court will lead to watered down procedures that will affect other cases.
This is in place on both sides. For instance, this is another in a serious of posts on the limits of the "bully pulpit." That is fine, but the example is not an isolated case. There is some (limited) affect here. The problem is people expect too much of it, not that has no effect. If pressed, he would admit this, but he spends a lot of time ridiculing those who argue that the bully pulpit of the presidency matters. A comment underlines the point, one that might be missed unless you closely read what he says (this simply is not done here -- there is much too much out there to carefully read each blog post; it is like someone who told me that if I only read the brief -- something like fifty pages -- I would see I was wrong when it sometimes seems like even judges don't do a good job there):
All of this brings me to my major point: Your writing on the myth of the bully pulpit has been really elucidating and valuable, but I would recommend that you not adopt the extreme position that the bully pulpit has no effect. Quite simply, it’s unlikely to be true in some specific circumstances, and it would be unfortunate if you left yourself exposed to easy attacks when a slightly more tempered position would make it harder to attack.I find this standard advice and it works in diverse areas. There was a debate at VC over the justices factoring in "legitimacy" and even a strong constitutional critic agreed there were some instances when that might matter. And, it is not a matter of it (or "empathy" or whatever) deciding the matter. It is a factor. Legitimacy is a vague term anyhow, including a general understanding by the public (or select segments) that the courts are doing its job correctly. In this system, "We the People" have some influence on the development of the law. The Constitution itself sets up terms like "free speech" without details. Details are filled in over time with changing understandings influenced by society as tends to occur in common law situations. If even the Catholic Church can be influenced by the laity, as to my understanding is a factor in determining canon law, society can influence the Supreme Court, including by "legitimacy."
And, in general, hard questions are not easy.* People like to make it so, so Scalia -- according to one PPACA constitutionality supporter -- doesn't like druggies, so finds a way to differentiate between a stand alone law involving possession of guns (Lopez) and a medicinal marijuana law that fits into a wider regulation of the interstate and international regulation of drugs (Raich). Putting aside the sixth vote (Kennedy) didn't find a "drug exception" when euthanasia drugs were involved (stereotypical Catholic beliefs would suggest his position there would be the same as abortion), there are significant differences here, and not of the "red" and "green" car variety. I myself think a case can be made to split the two cases. But, sure, it is merely that Scalia is an unprincipled hack.
Turns out that the Constitution is full with things where there is a lot of reasonable debate and the answers are not all slam dunks, even when they are correctly decided. I think -- unlike abortion or the death penalty -- that the arguments against the PPACA are particularly lame. Still, even on that level, there are matters of degree. The "support me or Congress will have unbridled power" brigade is particularly lame. There still is a way to be principled here and more easily other areas. And, it would be easier to debate such principles if over the top rhetoric and claims are avoided.
---
* For instance, the book I just cited, by a liberal sort, provided a reasonable explanation about how the UN Charter made "war" somewhat obsolete since it could only under international law now be waged for limited reasons. This doesn't erase the need for military force and congressional involvement in its use, but "declarations of war" as such might not be used in most cases. The policy validity is another matter.
Likewise, he gave a sort of pro-prosecution argument against the death penalty, other than the concern for bad counsel and (something I am concerned about) the fact that many heinous crimes are in effect done by the mentally ill. He argued that judges put limits that flow over to non-capital cases where they (if they ever were) are much less justified. This is somewhat comparable to those who fear trying terrorists in court will lead to watered down procedures that will affect other cases.