I have to take a 3rd shot at Larry Tribe's op-ed: That big word "choice."

Here's my first shot and here's my second shot at Larry Tribe's op-ed purporting to say why the Supreme Court will come down in favor of the constitutionality of the individual mandate to buy health insurance. I didn't set out to write one post after another about the op-ed, but I must go on to talk about his use of the word "choice" — which is monumentally important in the discussion of abortion rights. Tribe's op-ed has nothing to say about abortion. I wonder if he would have written it differently if abortion had crossed his mind, but I can't believe that a constitutional law professor would overlook the abortion-related significance of the word "choice."

Tribe's op-ed, as I wrote in the first post, rests very heavily on misrepresenting the Supreme Court's commerce power doctrine as referring to "commercial choices." In fact, the cases refer to "commercial activities," and a switch from "activity" to "choice" is immensely important in the health care litigation, in which opponents stress that the failure to buy insurance is inactivity, not activity, and therefore beyond even the broadest interpretations the Supreme Court has ever given to the Commerce Clause.

Tribe attempted to skew opinion by substituting "choice" for "activity," and I have called him on that. But I need to go further, because someone who uses words to get things done needs to be kept honest not only about shifting from one word to another, but also about changing the meaning of the same from case to case. Let's look at how Tribe talked about "choice" and health insurance and then see how that squares with what "choice" is supposed to mean in the abortion context.

In today's op-ed, Tribe wrote:

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

You can see that Tribe has given a very broad definition to the notion of choice. People bumble along, doing what they want, aware of the chance of an undesirable outcome, vaguely expecting to take advantage of an out that isn't very nice. That's a choice. It is something real and specific that the individual has done. Society can, as a group, based on our idea of the good, say to that person: We are now going to require you to take responsibility at that early decision point of yours. So Tribe says.

Now, apply that to abortion. If we take a similarly broad view of choice, we could say — as anti-abortion advocates do — that women who know they may be fertile have a choice when they go ahead and have sexual intercourse with a man. They can refrain from having sex, but if they go forward, they know that if they need emergency-room care get that they can’t pay for get pregnant, the public will pick up the tab they can get an abortion.

Of course, the Supreme Court case law does not present the woman's right to choose in terms of taking responsibility at that early point. It says:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

The choice that matters is an elaborate process of high-level reflection that occurs after the woman becomes pregnant — that is, when it's too late to take the precautions that the majority might have liked her to take so that she would not show up with the demand for something it wants to prevent.

I realize there are many distinctions that can be made between health insurance and abortion, but there is so much sophistry around the word "choice" that I think it's important to concentrate on what choice means and how it matters in the law. It seems to me that society, acting through a legislature, may have a preference about when an individual should be required to make a choice, and that the individual, valuing autonomy, may want a broader range of choice than the majority would like to permit. When we think about government power and individual autonomy, how consistent must we be about what "choice" means?

"Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system."

That's a sentence I've already quoted in the previous post, but focusing on it in isolation, I see it's a stunning example of something I've been observing more and more: Today's liberals sound like yesterday's right-wingers.

Read that sentence closely: "Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system." Doesn't Larry Tribe sound like your old man carping about welfare queens? There's no pity for people who are struggling to cover their basic expenses: Ah, don't be a bleeding heart — Larry/The Old Man scoffs — these people are choosing to sponge off the rest of us.

Tribe had to block out the possibility that people without health insurance aren't really making a choice. After paying for the things they think they need, they just don't have enough money left to cover a major expense that doesn't bring them a present good, only insurance against something that could go wrong.

Yeah, but that's why we need to force them to take responsibility, make them put insurance into their household budget along with the extra cupcakes and cars they're always blowing their money on — Larry/The Old Man snaps back at you.

Maybe now, you're thinking The Old Man was right! I'm not saying he wasn't. I'm just saying the liberals of today sound like The Old Man who used to enrage us with his heartlessness and his cynical observations about the lives of the people we thought of as vulnerable and unfortunate. That doesn't mean today's liberals are wrong. And I'll leave it to you to tease out the corresponding observation about the conservatives of today. Are they saying things that we Boomers, in our hippie days, used to scream back at The Old Man?

Professor Tribe would like you to know how nonpartisan the Supreme Court Justices are ... I mean, will be, when they decide the individual mandate question the way he would like.

The NYT has an op-ed by lawprof Larry Tribe that purports to demonstrate how obvious it supposedly is that the Supreme Court will find the health care law constitutional.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Of course, the argument Tribe likes was presented, considered, and rejected in the 2 federal court cases. It's a perfectly comprehensible argument, but that doesn't make its success in the Supreme Court a sure thing. Acting as if it does, Tribe says "it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court." Oh, you terrible people who fail to bow to the obviousness of one side of a constitutional argument! You compound your sins by falling prey to the upsetting belief that the Supreme Court Justices are politically partisan!

To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

That's not sarcasm. Read the whole thing. You'll see, it's not intentional sarcasm. It might be an attempt to sweet-talk Scalia into using the health-care litigation to score some political neutrality points, but it's not sarcasm. It's more: Ah! What a fine Justice, full of integrity and intellect, I will say Justice Scalia is if he decides this case my way!

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. 

Oh! People are sooooo unfair to Justice Kennedy. I, Larry Tribe, will protect him from the scurrilous "swing vote" remarks people make.... when he decides this case my way!

Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. 

I hope they do a better job of pointing at the Lopez case than that NYT link does. Here's the right link, in case anyone cares.

But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. 

Drew a bright line, eh? But the line, if you can call it a line, isn't about "commercial choices." That's Tribe's phrase — as he assures us the line is bright! — and what the Court said was "commercial activity" — which is why the argument about the distinction between activity and inactivity has been so important in the health care litigation. Tribe declares lines to be bright precisely at the point when he is shedding darkness. (If you think you can't shed darkness, I agree. I'm just riffing on the linguistic oddity of the lawyer's expression "bright line." Aren't easy-to-see lines usually dark — like black ink on white paper?)

The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

"Quintessentially" is such a strong word that perhaps you will not notice that it's next to the phrase that is not "economic activity."

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law.

Oh, come on. Tribe's rhetorical move has become comical at this point. It reminds me of an old-fashioned mother exerting moral pressure on a child by telling him how sure she is that he is such a good little boy that he could never do whatever it is she doesn't want him to do. Put more directly, it's an assertion of authority: I'm telling you what's right and if you don't do it, you'll be wrong. Could the Justices possibly yield to pressure like that? It's crude to think that they would, isn't it? It's an insult both their intellect and their integrity.

And yet, Larry Tribe does think it, right? That's what's behind his rhetoric. I believe. Crudely.

UPDATE: I have 2 more posts about this op-ed, one dealing with Tribe's disapproval of people who fail to take responsibility and one dealing with the meaning of "choice."

"Her womb was a barren desert in which my seed could find no purchase."

April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."

What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?

But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

"Chronicle Review Admits Bellesiles’s Story is False — Blames Student, not Bellesiles."

"Bellesiles is a demonstrated scholarly fraud, and doesn’t deserve the benefit of the doubt that many people are giving him. Once you’ve been busted for making stuff up, you need to be sure that what you publish is reasonably accurate. Bellesiles illustrates, once again, that he cares more about the narrative than about being sure his facts are correct, though I suppose that passing on other people’s fabrications is arguably a modest improvement over creating his own."

When do we believe the teacher who blames the student? Ask Elena Kagan.