Some useful thoughts from James Taranto:
In defense of Marshall, he runs a political blog and is not a lawyer. But our sense is that he accurately captures, as well as mirrors, the prevailing mentality of those on the progressive left who are lawyers. They refused to take seriously the argument that ObamaCare is constitutionally infirm, and they are now realizing that was a mistake.
We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was “crazy” to harbor any doubts about the constitutionality of ObamaCare.
Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence.
Don’t worry, we got over our hurt feelings. But the dismissive attitude we encountered in that conversation and again in Marshall’s post leads us to think that the pro-ObamaCare side may not be prepared to mount a convincing legal defense. If there were five Stephen Breyers on the Supreme Court, they wouldn’t need to. But there are only four. If the Obama administration’s lawyers are to win over Justice Anthony Kennedy, they’ll have to do a lot better than arguing that the other side’s case is stupid, crazy and laughable.
And yet, based on the evidence, they don’t seem to be capable of it. Remember Crazy Nancy’s cackles of “Are you serious?! Are you serious?!” Yes, we were.
This is just a special case of the general proposition that the left, because it has cocooned itself in academia, the Beltway and the mainstream media, and excluded those with other views, isn’t used to actually having to defend its views, and when confronted with actual arguments against them, has to resort to “hater,” “racist,” “wingnut,” etc. It’s arguments, such as they are, are hothouse flowers that can’t survive in the wild. And probably won’t survive the SCOTUS, either.