Tuesday, October 4, 2011

The Attitudinal Model and Laurence Tribe's Crystal Ball

In February, I wrote about Harvard Law School Professor Laurence Tribe's essay claiming that people who predict a closely divided vote along partisan or ideological lines in a Supreme Court decision about the constitutionality of the Patient Protection and Affordable Care Act (Health Care Reform or Obamacare, if you prefer) misunderstand the Supreme Court and constitutional law. Professor Tribe wrote, in part:
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. 
Professor Tribe's complete confidence in the constitutionality of the PPACA should provide little comfort for supporters of the law. Digging around in Lexis-Nexis for some lecture material, I ran across Professor Tribe's evaluation of the prospects for the success of then-Governor George W. Bush's federal claims against the effort to complete a partial recount of votes in Florida in 2000:
Laurence H. Tribe, a constitutional scholar at Harvard University who is leading Mr. Gore's legal team in the federal courts, said that he had expected the Bush appeal to the Supreme Court but that it would fail.

"This appeal will not be hard in the least to defend, because the federal questions are frivolous," Mr. Tribe said. "There is no plausible basis for arguing that there is a federal constitutional flaw in the carefully reasoned way in which the Florida court deliberated."
That's from The New York Times, p. A1, November 23, 2000, "Bush Takes Appeal to the U.S. Supreme Court" by Adam Purdum. 

In contrast, in their 1993 book on the attitudinal model, political scientists Jeffrey Segal and Harold Spaeth predicted:
if a case on the outcome of a presidential election should ever reach the Supreme Court...the Court's decision might well turn on the personal preferences of the justices.
Claims that justices act, in part, on the basis of their political predispositions in general or that they will do so in a case considering the PPACA are neither "distressing" nor "crude," as Professor Tribe writes. Rather, they follow naturally from decades of political science research on the extralegal influence on the behavior of Supreme Court justices. Those interested in predicting and, later, understanding the results of PPACA litigation before the Supreme Court should avoid Professor Tribe's casual dismissal of "politics" as an influence on the business of the Court.