Laurence Tribe has an interesting piece in today’s NYT about how the SCOTUS should and apparently therefore will deal with the constitutionality of the ACA. The piece is interesting not because of its deployment of already well-worn arguments regarding the law’s constitutionality, but rather as a sociological document. To wit, what does Professor Tribe think he’s doing? One understanding of the piece is as a Profession of Faith in The Law, i.e., Tribe really and truly does believe that
(1) Questions such as the constitutionality of the ACA have legally correct answers — answers that exist independent of both the narrowly political and broader jurisprudential commitments of the socially authoritative interpreters of these questions (in other words, the answer to the question of whether a law is constitutional is something other than a prediction of what five SCOTUS justices are going to do); and
(2) The current members of the SCOTUS can be trusted to discern those answers correctly, and apply the law without regard to whether they personally like the outcome of the case and controversy in question.*
*Note that Tribe brackets Bush v. Gore so as to exempt it implicity from (2).
Another understanding of the piece is that Tribe doesn’t believe either of these assertions, or at least he doesn’t believe the second one, and he’s merely engaging in politics by other means, by trying to pressure a SCOTUS justice or two into acting as he would like to see them act — which of course is to uphold the ACA while purporting to vindicate the validity of claims (1) and (2).
Yet a third possibility is that it’s a little bit of both: that for someone like Tribe, belief in The Law, and the integrity of its interpreters, is a transitory thing — on some days he believes, on others he doesn’t, and on most he just doesn’t think about the question.
(For something that sounds very much like the voice of the true believer, see Professor Randy Barnett’s Senate testimony last week, that comes to diametrically opposite conclusions to those Tribe reaches regarding the ACA and the Constitution).
Yet another question this kind of thing raises, at least for me — that is, for someone who is professionally obligated to teach students to either actually have the beliefs about the nature of the law and legal decision making Tribe and Barnett profess to have, or to at least successfully simulate having those beliefs in the appropriate settings — is how do you deal with this stuff when you don’t believe in it yourself? This, needless to say, isn’t exactly a novel question. Back in the day, Roberto Unger observed that he joined a Harvard Law faculty full of “priests who had lost their faith but kept their jobs.” (For some reason this remark has always reminded me of the Monty Python sketch in which Dinsdale Piranha is described as “a cruel man — but fair!”).
At one level this is a purely practical question. Doctrinal legal analysis isn’t a particularly difficult activity, as intellectual ventures go, but still like any technical, highly self-referential discourse, it’s full of terms of art, rhetorical strategies, and picayune disagreements that are really hard to follow if you’ve lost your faith in the basic cogency of the whole enterprise. Reading a debate between Tribe and Barnett about the Commerce Clause, if you don’t believe in any of this stuff, is probably a lot like trying to follow a theological debate about the Nestorian heresy if you don’t believe in the divinity of Jesus, or a heated argument about whether Trotsky’s criticisms of Stalin’s interpretation of Lenin’s revolutionary praxis were valid if you are not now and never have been a member of the Communist Party.