Josh Marshall of TalkingPointsMemo knows almost nothing about the law, as any lawyer who has read his material over the years can attest. He’s not an attorney, has never been one, doesn’t have a law degree, and so far as I know has never even taken a law class. Nor is he an expert or seasoned SCOTUS-watcher of any sort. He has literally no basis of expertise from which to either predict how the Supreme Court will rule on an issue or to provide informed commentary about how the Supreme Court reaches their decisions.
Against this background, Marshall decided yesterday to loose an unhinged screed aimed directly at the legitimacy of the Supreme Court based on a case they have not even ruled on yet. Forget having ruled on it – no one has even petitioned the Supreme Court to grant cert on the case. And yet despite all these facts, Marshall feels fully qualified to sally forth and pronounce with confidence the future course of the Halbig decision, from which he has already concluded – I kid you not – that the Supreme Court is “corrupt.” (In his defense, he completely redefined the word “corrupt” so that he could still call the Supreme Court “corrupt” according to his own definition without the embarrassment of resorting to facts.)
Marshall’s attack is embarrassing from a factual standpoint for a number of reasons. First, I agree that it is more likely than not that the D.C. Circuit, sitting en banc, will overturn the current three-judge panel’s ruling which gutted Obamacare’s exchange program in the majority of the country (and the individual and employer mandates with it). The Democrats have done a magnificent job of packing the D.C. Circuit with Democrat appointees as a result of Harry Reid’s use of the nuclear option. However, this fact mitigates against the Supreme Court ever even granting cert to review this case since that would erase the presence of a circuit split. Furthermore, the idea that anyone can predict what the Supreme Court would do on an issue of this importance has proven a complete fool’s errand. Who, after all, predicted that John Roberts would go solo to save Obamacare by declaring it a tax, an argument that neither side had raised or argued? The idea that Josh Marshall, of all people, can confidently wade where Tom Goldstein dares not to tread and declare who the winner will definitely be is patently absurd (Goldstein, by the way, agrees that SCOTUS will probably take the case, but states that the Administration will probably win at SCOTUS.)
From a polemic standpoint, however, Marshall’s attack is even more troublesome. On what basis should the Supreme Court be called “corrupt” even if they did rule that where a statute says “State” it means “State” and where it says “Federal” it means “Federal”? Argue all you want about the overall intent and structure of the statute, to say nothing of the overarching difficulty of unwinding the subsidy issue at this point if the IRS Rule is struck down, but the D.C. Circuit’s current ruling simply cannot be called unreasonable or facially absurd even if you disagree with the result (at least not by anyone whose partisan interests have trumped their better judgment). And it certainly cannot be said that anyone who agrees with it must necessarily be on the take or ruling from improper or corrupt motives. Marshall’s attack is so baseless and without any factual merit that if he were a member of the Bar, he would be subject to legitimate disciplinary action for violations of Rule of Professional Conduct 8.2.
Moreover, the suggestion that the imaginary course of action taken by the Roberts Court in Marshall’s fevered imagination, would somehow be worse or more “corrupt” than the the decades-long romp of the Warren Court, which fundamentally rewrote wholesale broad swaths of the entire Constitution, inventing “rights” whole cloth out of the imaginations of dedicated partisan liberals and removing hot-button societal issues from the Democratic process forever, beggars the imagination. If Marshall feels comfortable treating the Supreme Court like an illegitimate institution ripe for a spanking over this, will he support the same treatment at the hands of conservatives over judicial abominations of decades past?
The truth of course, is that Marshall is in fact interested in none of these things, and that something far more venial is in play here. The legitimacy of the court, its processes, or its standing among the American people – these are not things that interest Josh Marshall. What interests him is winning at all costs, and he has heard somewhere that John Roberts allegedly saved Obamacare because of concern about the Court’s reputation. And so Marshall – sure to be followed by other equally ill informed and careless liberal commenters – have decided to send a message, in whatever way they can, that they are prepared to continue the public pressure they believe won them the day last time Obamacare came before the Court.
I hope Marshall, et al, find that their current exercise is worth the candle. If we could somehow wipe out the mischief done by the judiciary over the last 75 years altogether, Marshall would doubtless find that conservatives have long stood on the short end of perceived judicial usurpation of legislative power, and the Court’s alleged swing to the contrary over the last 10 years hasn’t even come close to evening the scales.