Thursday, June 14, 2012

The persuasive effect of a good metaphor

This story from today's New York Times discusses how Justice Scalia's quip about "broccoli" during oral argument in the Obamacare case has become a powerful metaphor that crystallizes for the public in simple terms abstruse arguments about government overreaching.

How Broccoli Landed on Supreme Court Menu

What does broccoli have to do with health insurance?

Until recently, nothing. But now, perhaps a lot.

Broccoli, of all things, came up in the Supreme Court during arguments over the constitutionality of the Obama administration’s health care legislation. If Congress can require Americans to buy health insurance, Justice Antonin Scalia asked, could it force people to buy just about anything — including a green vegetable that many find distasteful?

“Everybody has to buy food sooner or later,” he said. “Therefore, you can make people buy broccoli.”

Since then broccoli has captured the public imagination and become the defining symbol for what may be the most important Supreme Court ruling in decades, one that is expected any day and could narrow the established limits of federal power and even overturn the legal underpinnings of the New Deal.

If the court strikes down the health care law — which many constitutional experts on both the right and left long doubted it would do — many lawyers say they believe one reason may be the role of broccoli in shaping the debate.

It turns out that broccoli did not spring from the mind of Justice Scalia. The vegetable trail leads backward through conservative media and pundits. 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.

“I have some grudging admiration for them,” said Akhil Amar, a professor of law and political science at Yale and author of a book on the Constitution. “All the more so because it’s such a bad argument. They have been politically brilliant. They needed a simplistic metaphor, and in broccoli they got it.”

To learn more about the origin of this carefully calibrated metaphor, click here.

(jbl).

http://lawprofessors.typepad.com/legal_skills/2012/06/the-persuasive-effect-of-a-good-metaphor-.html

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