Former New York Times Supreme Court reporter Linda Greenhouse, who previously confessed she couldn't grasp "the moral compass" of people who opposed Obama-care, denied the need for any balance when discussing the constitutionality of the matter in her Wednesday column [1], since the measure's opponents are so obviously wrong.
Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.
Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.
Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance -- specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause -- is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.
James Taranto at Best of the Web Thursday [2] called Greenhouse's column "a liberal legal legend's ludicrous ObamaCare defense" and her opinion on Obama-care "shallow, disingenuous and silly."
Taranto didn't appreciate Greenhouse's sneering demeanor, like this passage:
Basically just one word, in fact: “unprecedented.” Did you know that the individual mandate is unprecedented? You will after you read the brief filed by the redoubtable Paul D. Clement, the former solicitor general, on behalf of the 26 states that filed suit to challenge the law. The brief uses the word “unprecedented” 10 times, by my count -- I probably missed some -- not counting such other formulations of the same thought as “novel” and “first ever.” O.K., I get it. I’ll even accept it as true: granted that passage of the Affordable Care Act ended decades of deadlock over how to reform the developed world’s most irrational health care system. It should have happened much earlier.
Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement.....
What do GOP actions have to do with the constitutionality of Obama-care? The problems continued when Greenhouse cited Rep. Nancy Pelosi as a constitutional scholar.
Indeed, just a few years ago, the constitutional argument against the mandate struck most people who thought about the matter as frivolous. In 2009, the House speaker, Nancy Pelosi, famously replied “Are you serious?” to a question about the bill’s constitutionality.
The opponents’ argument has been gussied up since then, which brings to mind Barack Obama’s remark during the 2008 campaign about putting lipstick on a pig. One of the more depressing news items I’ve seen lately was the report of a Bloomberg News national poll indicating that 75 percent of people expect that the Supreme Court’s health care decision will be influenced by the justices’ politics. Only 17 percent predicted that the case would be decided “solely on legal merits.” (This from a majority of poll respondents who said the law should be “left alone” or modified only slightly, presumably in the political arena.) Now it’s up to the court to prove them wrong.
In a September 21, 2011 column Greenhouse showed herself incapable of comprehending Obama-care opponents [3], which suggests she might also be incapable of digesting a conservative legal argument:
I have a confession to make. I can describe the legal arguments and the judicial conclusions, but on a fundamental level, I just don't get the attack on the federal law. I don't understand people who voluntarily, without claiming poverty, let their children go uninsured. I don't understand the moral compass of the owner of the fancy car I saw the other day that sported the bumper sticker: 'Repeal Obamacare.'
(h/t Matt Sheffield)