On Monday's Rachel Maddow Show on MSNBC, guest host Ezra Klein of The Washington Post defended liberals for "all that freaking out" about the Supreme Court throwing out Obamacare -- before John Roberts sealed the win for the liberals. Forget the end result, Klein announced -- the court almost ruled 5 to 4 to throw the entire thing out, so "you should be worried about the court today. It hasn't changed that much."
Klein thought on the policy merits, the decision should have been 8-1 in favor of ObamaCare, and liberals should never have had to fret that a "clearly constitutional law is going to be struck down based on politics." So their Dred Scott paranoia was well-founded:
EZRA KLEIN: Now, this should not have been a 5-4 decision that was almost a 4-5. It should have been 7-2 or 8-1. Before the oral arguments, the poll of former Supreme Court clerks and lawyers who had argued before the court found only 35 percent expected the court to strike the mandate down. After the oral arguments, based on the line of questioning coming from the bench, it began to look like the law would go down, and there was a feeling in the professional court-watching community that holy crap, we can`t believe this is happening. A clearly constitutional law is going to be struck down based on politics.
Now, a survey of top constitutional law scholars late last month found that 19 of 21 thought the law was constitutional and should be upheld by the court -- 19 of 21. But only eight of 21 were confident that it would be upheld by the court.
This was a survey by Bloomberg News of the 21 professors at the top law schools -- Harvard, Yale, Columbia, and Penn in the Ivy League, not to mention the University of California at Berkeley and the University of Michigan at Ann Arbor. John Sexton at Breitbart found nine of the 21 are Obama donors. Then look at a pile of their resumes:
-- Bruce Ackerman (Harvard), who thought Obama’s war-making in Libya was “unconstitutional”
-- Guy-Uriel Charles (Duke), who trashed Elena Kagan for not hiring enough minorities at Harvard and who blogged “Roberts ought to get points for craftsmanship and statesmanship” in upholding Obamacare
-- Jesse Choper (Berkeley), who clerked for Earl Warren in the 1950s
-- Norman Dorsen (NYU), a longtime president of the ACLU
-- Charles Fried (Harvard), a former Reagan aide who voted for Obama and testified in favor of ObamaCare before the Senate Judicary Committee
-- Jamal Greene (Columbia), a former clerk to John Paul Stevens who wrote in the New York Daily News last year that “Most of the law professors I speak to think Roberts shills for the Republican Party”
-- Dennis Hutchinson (U. Of Chicago), who clerked for Justices William Douglas and Byron White
-- Michael Klarman (Harvard), author of an essay “in honor of Justice Ruth Bader Ginsburg”
-- Andrew Koppelman (the “John Paul Stevens Professor of Law” at Northwestern) who boasts his article on The Obvious Constitutionality of Health Care Reform is the “most viewed article in the history of the Yale Law Journal Online”
-- Gillian Metzger (Columbia), a former clerk for Justice Ruth Bader Ginsburg and for Patricia Wald (often mentioned as a potential Democrat Supreme Court pick)
-- Anne Joseph O’Connell (Berkeley), a former clerk for Justice Ruth Bader Ginsburg
-- David Richards (NYU), author of Fundamentalism in American Religion and Law: Patriarchy as Threat to Democracy as well as Women, Gays and the Constitution: The Grounds for Feminism and Gay Rights in Culture and Law
-- Kermit Roosevelt III (Penn), a former clerk for Justice David Souter and the author of The Myth of Judicial Activism
-- Adam Samaha (U. Of Chicago), a former clerk for Justice John Paul Stevens
-- Neil Siegel (Duke) served as special counsel to Sen. Joe Biden during the Roberts and Alito nominations
-- G. Edward White (Virginia), a former clerk for Chief Justice Earl Warren
-- Christina Whitman (Michigan), a former clerk for Justice Lewis Powell with an interest in “feminist jurisprudence”
Ezra Klein then turned from that kangaroo court to explaining why the Left should stay in a constant state of panic over the "far right" high court:
All that freaking out before the decision was handed down about how partisan and political and conservative the court has become, that is still a totally valid reaction to this court, even after it upheld health care reform, because the truth is it barely upheld health care reform and it only upheld it on really narrow grounds. And the court`s conservatives seem to be arguing by way of catty political leaking that it almost wasn`t narrowly upheld on 5-4, that it was nearly struck down on a 5-4 vote and it would have been if John Roberts hadn`t been such a scaredy-cat.
The other thing, by the way, about those conservatives on the court, they didn’t just want to strike down the mandate, which had been radical in and of itself. They wanted to overturn the whole law based on the mandate. So, no more Affordable Care Act entirely, the entire thing goes. The maximalist option, no judicial restraint -- they were really going for it.
So, the bottom line is that if you were worried about the court before the health reform ruling, you should be worried about the court today. It hasn’t changed that much.
