Never Before
By LINDA GREENHOUSE
NYT
Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.
Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.
Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.
Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin, but that isn’t my point; the justices will do what they will do. Going into as dramatic a week at the Supreme Court as I can recall (the argument in Bush v. Gore was over in 90 minutes, compared with the six hours the justices have allocated to the Affordable Care Act), my concern is that the three-day marathon may leave people muddled and confused about something that is really quite simple and clear. So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.
(More here.)
NYT
Journalistic convention requires that when there are two identifiable sides to a story, each side gets its say, in neutral fashion, without the writer’s thumb on the scale. This rule presents a challenge when one side of a controversy obviously lacks merit. But mainstream journalism has learned to navigate those challenges, choosing evolution over “intelligent design,” for example, and treating climate change naysayers as cranks.
Court cases are trickier. It’s one thing to engage in prediction that flows from analysis: which side is most likely to win? It’s quite another to let readers in on the fact that one side’s argument is so manifestly weak that it doesn’t deserve to win. Journalistic accounts of court cases, at least in advance of a definitive ruling, understandably tend to take the safe course and treat the arguments on both sides with equal dignity. So it’s perhaps not surprising that just about half the public apparently believes that the Affordable Care Act’s individual mandate is unconstitutional.
Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.
Maybe the court will agree with that assessment, and maybe it won’t. I think it will, by a wide margin, but that isn’t my point; the justices will do what they will do. Going into as dramatic a week at the Supreme Court as I can recall (the argument in Bush v. Gore was over in 90 minutes, compared with the six hours the justices have allocated to the Affordable Care Act), my concern is that the three-day marathon may leave people muddled and confused about something that is really quite simple and clear. So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.
(More here.)
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