Steve Benen wonders whether Larry Tribe is being naive or snarky when Tribe predicts that the Supreme Court justices will follow reason and precedent in finding the Access to Care Act constitutional, rather than voting along party lines.
Neither answer, I think, is right. Tribe – who, let us recall, relies for his income and power on his capacity to get five Justices to see things his way – is instead using the indicative mood to hint at the imperative. In the guise of predicting what the actual Justices will do, he’s pointing out what an honest Justice would have to do. This is a familiar technique of moral education, known to every competent parent. “You’re not the kind of person who … ”
But that does not deprive Tribe’s words of their predictive power. If the case did split along party lines – indeed, if any Justice joined Injustice Thomas in voting to strike down the law – Tribe would not only be proven wrong, he would be in the position of insulting Scalia, Kennedy, Roberts, and Alito.
Tribe doesn’t want to do that. So he must be persuaded – and he is among the world’s leading experts on the topic – that the actual Justices will, in this case, act like his ideal Justices. Good to know.