Friday, March 30, 2012

Supreme Court Kremlinology

Andrew Koppelman

So what did this week’s oral arguments in the Supreme Court tell us about the constitutionality of the Affordable Care Act?  There are two ways of predicting what the Supreme Court will do.  One is legal analysis.  You read the Court’s decisions, see what broad principles the judges have endorsed, and then apply those principles to the case before you.  But there is a second approach, which I’ll call Kremlinology, after the old practice of analysts trying to guess what the Central Committee of the Soviet Union was up to.  This attempts to piece together any evidence one can find of the whims of those in power, in order to intelligently guess how that power will be used.

One needs to keep that distinction in mind when one reads CNN legal analyst Jeffrey Toobin’s now-notorious statement Tuesday on CNN:   “This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong.  I think this law is in grave, grave trouble.”

Some ACA opponents have taken this as vindication of their constitutional claims, showing that those claims were right all along.  But, of course, they show no such thing.

The rest of this post is on, here.

Older Posts
Newer Posts