James B. Stewart has an instructive story in the New York Times on the origins of the broccoli meme: where it started and how it ended up figuring in the Supreme Court arguments over the Affordable Care Act.
With an accompanying graphic titled “The Broccoli Trail,” the whole thing has an air of epidemiology about it. Still, it’s a great example of the power of a small band of conservatives and libertarians harnessing non-mainstream media and crystallizing legal opposition to an extraordinarily complex law.
Writes Stewart:
Before reaching the Supreme Court, vegetables were cited by a federal judge in Florida with a libertarian streak; in an Internet video financed by libertarian and ultraconservative backers; at a Congressional hearing by a Republican senator; and an op-ed column by David B. Rivkin Jr., a libertarian lawyer whose family emigrated from the former Soviet Union when he was 10.
Even those who reject the broccoli argument appreciate its simplicity. Whatever the Supreme Court rules, Mr. Rivkin and his libertarian allies have turned the decision into a cliffhanger that few thought possible.
Apologies for the heresy, but of all the many reasons to oppose Obamacare, the mandate to purchase insurance was never very high on the list for me. Let me put it slightly differently: The motivation behind the mandate — preserving the profit margins of private insurance companies — is more troubling than the compulsion itself. As under Obamacare, Germany compels its citizens to contribute to “sickness funds,” but most of the insurance industry there is nonprofit.
In any event, slippery-slope arguments are far from dispositive. As George Will wrote in 1983, all government “takes place on a slippery slope. Anything can be imagined carried to unreasonable lengths. That is why the most important four words in politics are: up to a point…”
If nothing else, Stewart’s “Broccoli Trail” is one more piece of evidence (if any more was needed) that the Supreme Court does not exist in some kind of platonic strongbox that mere politics cannot penetrate. As a lawyer friend of Mother Jones’s Kevin Drum corresponded:
I think legal watchers deep down believed that the Court would not be so superficial as to unhinge established jurisprudence for an ideological cause. It’s a fun parlor game, but they figure that when sobriety prevails the court will bow to precedent where — as here — the issue is squarely within existing precedent. Well, no, and they are perfectly free to channel right wing bullshit points such as inactivity vs. activity. I think this really rattled [Jeffrey] Toobin to see justices behaving like congressmen from Alabama in their arguments.
As we now know, the justices routinely use Google to research their opinions.
Talk about slippery slopes.
Matt 
MattSwartz 
In keeping with the zeitgeist of the day where it seems that everyone is so partisan that no-one can just abide by simple honesty and argue from there, the lawyer friend of the Mother Jones’ writer isn’t practicing such simple honesty.
In the first place even if “the issue” (of forcing people to buy a private product) was “squarely within existing precedent” it’s especially laughable for a Lefty to call a challenge to that idea “superficial” or “bullshit points.”
It might, after all, be said that just about the entire jurisprudential project of the modern Left (since, say, the Sixties) has been to go about over-turning existing precedent in favor of what holdings it likes. (With no-one needing to say anything more than … “the Warren Court” to establish the truth of this.)
So there already is one bit of disingenuousness.
But then there’s the utterly bald dishonesty for this lawyer to say that the issue is “squarely” within existing precedent, because it is not.
He’s free to say that forcing people to buy a private product is a “superficial” difference from other cases where the government has, for instance, forced people *not* to buy or sell some private good, or even to not produce a private good for one’s own consumption (wheat).
But it is simply and clearly beyond personal opinion to go beyond that.
Indeed I’d even have to admit that the difference here can seem small and clearly towards the superficial end of the scale, and that it is does clearly tend towards the “bullshit” end of the spectrum to see this difference as some be-all and end-all distinction. And I’d even agree that the slippery-slope argument proves too much here.
But it still does not make the present issue “squarely within” former precedent because again there is no square precedent for it, period.
This kind of crap—seen on both Left and Right these days—is so freaking disheartening. And stupid. Why lie even about something like this? Did this guy/Mother Jones really think he/they were going to fool some SCOTUS Justice into believing there was some (un-named) square precedent?
Of course not. It’s just this zealousness of today, and it is stupid because it is so bloody counterproductive. I lie to you about some background fact on an issue of the day that’s sure to come out to you someday and what have I gained other than your perpetual distrust for anything else I say in the future about anything else?
And even if that’s understood, and recognized that “the other side lies too” what’s the purpose? To throw away the opportunity for credibility?
No in fact it can seem there’s damn near a conspiracy on every side to so flood every debate with lies that nobody believes anything, because boy does that sure seem to be the state of things today.
We’re living in a society ruled by zealots, and God help us all.