Academic

On that Larry Tribe column . . . .

By Tung Yin

Harvard law prof Laurence Tribe says:

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

In other words, Tribe thinks it's obvious that the Affordable Care Act's individual mandate is constitutional.

This kind of reminds me of an incident from my 3L year of law school.  I was taking Jesse Choper's Supreme Court Seminar, in which pairs of students got to "play" Supreme Court Justices.  We examined actual cases before the Court that Term, voted on them, and drafted opinions.  My buddy and I were Justice Kennedy, and one of the cases that I opted to write an opinion in was United States v. Lopez.

I drafted an opinion upholding the Fifth Circuit's decision to strike down the Gun-Free School Zones Act essentially on a limitless Commerce Clause theory.  It should have been the majority opinion, but for some reason, our "Justice Thomas" voted with the liberals.  This all took place before the Supreme Court issued its decision.

Also before the actual decision came down, we had our upper class moot competition, the finals of which were judged by three well-respected U.S. Circuit judges.  I had written the bench memo for the moot court competition, and at the banquet before the final argument round, Choper introduced me to the most prominent of the three judges.  Choper mentioned that I was playing Kennedy in the Supreme Court Seminar and that I had predicted that Kennedy would strike down the Gun-Free School Zones Act.

This circuit judge -- a conservative -- told me, "You got Kennedy's vote wrong.  It's going to be 9-0 to reverse the Fifth Circuit."

Whoops.

Now, obviously, the fact that Lopez came out 5-4 the opposite way from the judge's prediction doesn't mean that the Supreme Court will similarly hold that the ACA is likewise beyond the Commerce Clause.

But it does suggest that a dose of predictive humility might be called for.  I'm not saying that I, as a 3L, was so smart that I was right about Lopez and that a prominent federal appellate judge was wrong.  After all, this was just a class assignment and maybe I knew just enough to be dangerous.  But it's a useful reminder that many people thought Lopez was going to be an easy reversal of the Fifth Circuit, and they were wrong.

Full post as published by The Yin Blog on February 09, 2011 (boomark / email).