It is a tactic of leftists to undermine institutions for political gain even if unsupported and unfair. Very dangerous game.
“But Dahlia Lithwick’s latest effort to politicize an anticipated loss [to which Ilya also responds below] includes a distortion of an argument I made here a week ago that cannot go without response. She writes (bold added by me):
‘Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions—freeing him to strike down the Affordable Care Act—“without breaking a sweat.” I suspect that’s right.
If that’s true, we should stop fussing about old precedents. These old milestones of jurisprudence aren’t what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama’shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.’
In fact, as Volokh readers will recall, this is the opposite of what I blogged.”