Don’t They Teach the Kids Legal Realism Anymore?

It’s time for conservatives (and worried liberals) to play the “how a loss is really a win” game (and I have to say I like the shoe much better on this foot.) The hot contrarian argument is that yesterday was actually a big win for John Roberts and Republican principles because Roberts was able to undermine the commerce clause while preserving the legitimacy of the Court.

This does not, however, actually make any sense:

But, in reality, this is no major conservative win in any sense, as Scocca’s central assumptions fail to withstand scrutiny. First, Roberts’s opinion, even if it constrained future Supreme Courts in perpetuity, is a narrow one that does not substantially alter existing commerce clause and spending powers jurisprudence. And second, what Roberts wrote in NFIB v. Sebelius will do nothing to constrain future courts.

Read the whole etc., but a couple of additional points. There are areas of the law where doctrinal wins are actual wins, because while precedents don’t have much of a constraining effect on future Supreme Courts they do have some constraining effect on lower federal and state courts. But decisions striking down acts of Congress won’t stick unless they’re upheld by the Supreme Court, so that’s not really relevant to this case. And, in addition, this is also where the first point matters. As we saw with respect to the ACA, Lopez and Morrison already provide federal appellate judges willing to strain a bit the ability to argue that new federal statutes Republicans don’t like are unconstitutional. Yet another ambiguous precedent isn’t going to make much of a difference even to lower courts.

I’d also add that claims that Roberts were following the classic Marbury playbook (take an immediate loss for a doctrinal victory) are correct. But this proves something different than people making the argument think it does, because even Marbury wasn’t “Marbury“. Marbury wasn’t cited until the late 19th century, when judicial review was already well-established (primarily by acts of Congress rather than by clever maneuvering by judges,) and had virtually nothing to do with the establishment of judicial review. There is one important difference, though. The small value of a doctrinal victory was worth it for Marshall, because he presumably didn’t give a damn if Marbury got his commission. Republicans, conversely, actually wanted the PPACA struck down.

And finally, while we’re talking about Roberts, Paul on the evidence that he switched his vote. To me, the strongest evidence is the Cooper v. Aaron-style joint opinion.

…syndicated columnist William F. George also sees this as excellent. news. for. conservatives. I hope conservatives win many more such victories in the coming years.

I have to admit, I find this genuinely baffling. If you’re a neoconfederate, 5 neoconfederate votes + a win in the biggest commerce clause case in nearly 80 years has to be vastly preferable to 4 1/2 votes and a loss in the biggest commerce clause case in nearly 80 years. If Kennedy joined the four other Republicans to overrule Roe v. Wade, would you be happy if he did it in a concurrence saying that gender should be subject to strict scrutiny?