In re-reading my prediction post, however, I was struck by its discussion of an exchange between professors Jack Balkin (of the Balkinization blog) and Randy Barnett (the intellectual architect of the constitutional case against Obamacare). In short, Balkin theorizes that Barnett's arguments that the challenge to the individual mandate is not frivolous are not just arguments, but "performative utterances":
Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.Barnett surprisingly agreed that he and others were "trying to do exactly this."
At this point, it is beyond dispute that Barnett succeeded. No one can credibly claim that an argument that has produced a circuit split and reached the Supreme Court, where it received six scheduled hours of oral argument, is frivolous (at least not without resorting to pure cynicism).
Yet, incredibly, many respectable people do continue to insist that Barnett's arguments are beyond the pale (or, if you prefer, "garbage"). How can this be? I would suggest that Balkin's wisdom works in reverse. These accusations of frivolity are also "performative utterances"—an attempt to make the arguments frivolous by virtue of the fact that they, prominent legal journalists and scholars, are saying they are frivolous.
The two big differences are: (1) these people never admitted that they were "trying to do exactly this"; and (2) they failed.