Balkinization  

Monday, January 31, 2011

The Politics of "Constitutional Law"

Mark Tushnet

Here's something between a genuine question and a thought-experiment: Would the dynamics of the discussion among people who pay attention to these sorts of things change were a Republican-appointed judge to uphold the Affordable Care Act, or a Democratic-appointed judge to hold it unconstitutional? (I put it this way to avoid using the freighted term "legitimacy.")

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