Glad You’re All Seeing Things My Way

The other day I wrote the following:

I’m really completely uninterested in the actual arguments being made in the ACA case before SCOTUS. It just doesn’t matter what the law is, as these guys have proven time and again that they’ll do whatever they want. I also find it amusing that people think Roberts cares about the impressions created by a divided court. He doesn’t. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.

For these sentiments, I was told I was “spectacularly obtuse” and “willfully ignorant” and displaying “extraordinary ignorance” and so forth. I’m in good company, I guess, as people start to realize what they just witnessed:

I didn’t mention this yesterday, but in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.

“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Which raises a question: How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?

***

Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.

All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.

People who thought Scalia would act rationally simply were not paying attention. EJ Dionne:

Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.

Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.

Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.

The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.

Again, all of this is stuff from the teabagger anti-Obamacare manifesto. Chait:

The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”

The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)

Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather.

News flash- right wing hacks tend to act like right wing hacks. We’re talking about a conservative bloc whose wives openly work for tea party groups, we’re talking about hacks that speak privately to the tea party hacks. We’re talking about people who lie on their disclosure forms for decades to cover up the money their wives are receiving from wingnut welfare organizations.

Every one of these men was a member of the Federalist Society. Every single one of them was groomed for exactly what they are doing right now. This is their time to shine, to do what they have been groomed to do. When you train soldiers to fight, and drill their mission into them every day, and drill the rightness and correctness of their mission into them every day, and assure them they are fighting for truth, justice, and the American way, only a fool would be surprised that they are eager to go into combat.

Maybe I will still turn out to be wrong, and they will uphold the bill. If so, great. They’ll be in line with the 90% of legal scholars who laugh off the question of constitutionality. But given what we know about these guys, and given what we have seen, it is anything but ignorant or obtuse to think otherwise.






205 replies
  1. 1
    Death Panel Truck says:

    It’s all up to Kennedy.

  2. 2
    gaz says:

    damned activist judges. legislating from the bench and all that.

  3. 3
    phil says:

    I think this misses the point. It was terribly naive for the Obama admin to ever count on conservative justices backing any aspect of the ACA, stare decisis be damned. I know this isn’t a popular position around here, but I think Digby nails it today when she says this about the Obama administration:

    this isn’t about corruption, it’s about believing your own hype instead of believing your eyes

  4. 4
    brendancalling says:

    this was totally predictable, and I have been saying the exact same thing as Mr. Cole. No one listens, and now a lot of progressives and HCAN people are very upset.

    what the fuck did they expect?

  5. 5
    gaz says:

    @Death Panel Truck: In that case, we are SOO fucked!

  6. 6
    gogol's wife says:

    Unfortunately, I always thought you were right, but I was wishfully hoping the other people were. When people would say even Scalia might uphold it, I thought they were out of their minds, but I was willing to bow to the wisdom of people with law degrees. I guess we’ll see, but it doesn’t look good.

  7. 7
    Rafer Janders says:

    For these sentiments, I was told I was “spectacularly obtuse” and “willfully ignorant” and displaying “extraordinary ignorance” and so forth.

    Hmmm, who on Earth could have written such things? I can only wonder….

  8. 8
    taodon says:

    @gaz: IOKIYAR: further expanded, it’s not activism if it benefits “conservatism.”

  9. 9
    WJS says:

    America. Fuck Yeah.

  10. 10
    mark says:

    I can not believe it is legal for the Constitution to grant a body power to decide if something is unconstitutional or not without having them read it.

    That is the number one starting point.

    The twenty-seven hundred pages make up the text of the Patients Protection and Affordable Care Act. Put aside, for the moment, the matter of the mandate and “severability” and “community ratings” and all the rest. If the Justices—or their clerks—need to read through a law to figure out whether it’s constitutional, it shouldn’t matter whether the law is twenty-seven pages or twenty-seven thousand (those numbers are divisible by nine, so they can split them up). Perhaps that’s a civilian’s view, and that’s not how things work in the Court these days. (Scalia, in other comments, made it clear that he really didn’t know what was in the law.)

  11. 11
    gaz says:

    @taodon: Uncle Thomas destroyed any faith I had in the SCOTUS years ago. It’s one thing to confirm the guy, another to not put him in front of an ethics panel for his behavior. “Appearance of Impropriety” doesn’t even begin to cover this guy. What a damned hack. I *almost* respect roberts and scalia by comparison > < (not saying much at all I knoew!)

    Clarence is the first one I'd push in front of a bus.

  12. 12
    RP says:

    LOUD NOISES!!!

  13. 13
    Frank says:

    I am so fucking sick of hearing about Washington Democrats being “caught off gaurd” by the zealotry of conservatives. This has been going on for decades! Fuck these Democrats.

  14. 14
    Jay B. says:

    Once again, the Administration completely underestimates the opposition and what they are prepared to do. It’s only been four years, I’m sure they’ll prove to be rational actors yet! It’s not like Bush V. Gore is actually in the public record or anything.

  15. 15
    mark says:

    @mark: not to toot my own horn on this very important point, but i quoted the wrong part of that paragraph.

    The point of outrage for EVERYONE of all political stripes is that how can a body be created to judge if something is Constitutional or not if THEY DO NOT EVEN READ IT????

    JUSTICE SCALIA: You really want us to go through these 2,700 pages?
    (Laughter.)

    JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to give this function to our law clerks?(Laughter.)

    JUSTICE SCALIA: Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?

    this is the most infuriating thing. We all already knew how they would vote on it.

  16. 16
    The Sheriff's A Ni- says:

    So if the ACA never had a chance with the Supremes then, uh, why even bother with health care reform at all? Would getting a public option or some other form of progressive reform passed make the GOP any less virulent in stonewalling it?

    I still have doubts Kennedy and Roberts have the balls to kill the ACA, anyways.

  17. 17
    Belafon (formerly anonevent) says:

    I’m going to be stubborn as well, and say that I don’t think it will be struck down. It didn’t rewrite the industry the way Single Payer would have, and I do think at least Kennedy will take into account the uniqueness of the current sytem. If I’m wrong, the country goes to hell in a handbasket anyway, because no matter how narrow they try to scope it, Republicans will start challenging Social Security, Medicare, Medicaid, and lots of other government offices.

    @phil: Well, then, his option would have been not to do anything, because Republicans were going to challenge anything. They don’t want people to think of the Democrats as helping them.

  18. 18
    Seebach says:

    People don’t want to believe the Supreme Court is corrupt. It makes them realize America isn’t a special flower anymore.

  19. 19
    mark says:

    @Frank: yea, lets sit on our hands like 2010 and teach ’em good this time.

    asshole

  20. 20
    Clime Acts says:

    Once again, the president and his administration shock and awe us with their apparently willful naivety in the face of right wing psychos.

    This was entirely predictable.

    I ask again: Anybody know what kind of sick game Obama is playing with always trusting to the good honor and graces of his opponents, the very same people his supporters here call out as Satan’s minions?

    Doesn’t hold water…

  21. 21
    marybdvm says:

    I think you’re absolutely spot on regarding our very biased to the right Supreme Court. I wish to FSM that I’m wrong but if wishes were horses I’d be out riding on this beautiful day.

    The other incredibly depressing situation is that we’re still subsidizing the oil companies thanks to the Republicans. How can anybody think that way? How can anybody vote for them. I’m so d_mn depressed about our situation. And then, evidence that it’s already past the point of return on global warming – we can’t fix it.

    Must quit reading the news now…..

  22. 22
    Jeff Spender says:

    I didn’t really want to believe the extent of the corruption in the Court. It’s actually frightening, far beyond the scope of the PPACA case.

    So I thought, for a minute, that we could have at least a little faith in our judicial branch.

    I admit that I was wrong.

  23. 23
    Clime Acts says:

    @mark:

    : yea, lets sit on our hands like 2010 and teach ‘em good this time.

    What do YOU suggest, douchebag? More votes for clueless Dems, to um…”make them do it” or something…?

  24. 24
    AnotherBruce says:

    Maybe I will still turn out to be wrong, and they will uphold the bill.

    Even if they do, it will very likely be a 5-4 vote. You will still be right. I’m going to laugh at any conservative who ever talk about principles again.

  25. 25
    Sargent Pepper's Spray says:

    John, why are you being so obtuse?

    Wasn’t that the line from the Shawshank Redemption? Don’t you get 30 days in the hole for that?

  26. 26
    FlipYrWhig says:

    I will raise this again. A few years back there was a case before the Supreme Court about a 13 year old girl strip-searched in school due to an anti-drug policy. In oral arguments, Stephen Breyer asked about why this moment of being undressed in school was different from changing for gym class. The blogosphere howled, oh how they howled. Misogyny, lack of empathy, clueless privileged white dudes, the whole thing. And in the end the case was decided… 8-1 in favor of the girl, with Breyer on her side.

    This is what they do. They shoot the shit. They ask leading questions. They try to make the lawyers articulate fine distinctions under pressure. I know that it’s like an article of faith among blogosphere lefties and liberals to rush as fast as possible towards outrage and despair, but, seriously, calm the fuck down.

  27. 27
    RP says:

    (a) The court hasn’t ruled yet, and trying to predict their decision based on oral argument is a fool’s errand.

    (b) Anyone who’s shocked by the conservative justices’ grandstanding, including “liberal” members of the media like Toobin, is an idiot. Of course they were going to do that, and of course they were going to ask the government tough questions.

    (c) Putting this on the administration and/or criticizing them for “underestimating” the conservatives on the court is profoundly silly. Verilli might have done a lousy job, but that’s almost certainly because he choked when handling the biggest case of his life, not because everyone in the admin. or SG’s office thought this would be a walk in the park. Moreover, oral argument in a ridiculously high profile case like this has almost zero impact on the final outcome. If you would like to criticize the government’s briefs in the SCt or the lower courts, be my guest, but any criticism based solely on the oral argument is basically pointless.

  28. 28
    Chyron HR says:

    @Clime Acts:

    Once again, our True Progressive betters reveal the true force behind everything that is wrong with America: the alleged “President” Obama. How dare he appoint Scalia, Alito, et al to the Supreme Court?

  29. 29
    eemom says:

    Why Cole, you actually READ some shit before you mouthed off on this again! What’s come over you?

    Still, to paraphrase the immortal Mr. Wolf, you might want to go easy on the dick-sucking until there’s an actual decision.

  30. 30
    Mike Goetz says:

    I’m not going to call any nasty names, but I do think people are getting themselves Toobined up a little excessively.

    I still think Kennedy will uphold ACA, and Roberts will join the majority in order to write the opinion himself to cabin off the “mandate” exclusively to health care.

  31. 31
    Jeff Spender says:

    @FlipYrWhig:

    I know that it’s like an article of faith among blogosphere lefties and liberals to rush as fast as possible towards outrage and despair, but, seriously, calm the fuck down.

    THIS.

    My own disillusionment comes from the hack questioning by Scalia, his refusal to entertain the thought of reading the actual law, and the fact that Sam Alito, apparently, was clueless about how insurance worked. And these people get to decide? What expertise do they have that gives them this power? It’s fuckin’ nuts.

  32. 32
    Amir Khalid says:

    For what it’s worth, I believe you were expressing a well-founded fear in light of this Supreme Court’s recent history. If what you predict is true, then no strategy would have helped the Obama Administration to defend PPACA against the hostile partisan (not conservative) majority on the US Supreme Court that always wanted to take on the case just so they could repeal it.
    __
    Then again, the lawyers among the Juicitariat say that they’ve been positively hammered by the judge many a time, only to have the judge eventually rule in their favor. So how these arguments seem to be going is not to be relied upon as indicator of the eventual ruling.
    __
    This TPM story suggests the right is far from believing the game is won, though, because a victory here might backfire against them in November. So there’s that to think about, too.

  33. 33
    eric says:

    I fail to see how the key Civil Rights Laws survive a ruling that private party “inactivity” is not within Congress’s Commerce Clause power when Congress has made express findings that the particular inactivity substantially impacts interstate commerce when all private actors are aggregated. So, why should it be illegal to fail to serve a black person at your roadside diner? That, too, is inactivity, and it is just as likely to affect interstate commerce as would the uninsured almost certainly using health care resources while uninsured. Back of the bus.

  34. 34

    Krugman, intro to The Great Unravelling, 2003:

    It seems clear to me that one should regard America’s right-wing movement—which now in effect controls the administration, both houses of Congress, much of the judiciary, and a good slice of the media—as a revolutionary power in Kissinger’s sense. That is, it is a movement whose leaders do not accept the legitimacy of our current political system (pp. 5-6).

    There is ample evidence that key elements of the coalition that now runs the country believe that some long-established American political and social institutions should not, in principle, exist—and do not accept the rules that the rest of us have taken for granted (p.6).

    The defenders of the status quo therefore tend to begin by treating the revolutionary power as if its protestations were merely tactical; as if it really accepted the existing legitimacy but overstated its case for bargaining purposes; as if it were motivated by specific grievances to be assuaged by limited concessions. Those who warn against the danger in time are considered alarmists; those who counsel adaptation to circumstance are considered balanced and sane…But it is the essence of a revolutionary power that it possesses the courage of its convictions, that it is willing, indeed eager, to push its principles to their ultimate conclusion. (p. 8)

  35. 35
    FlipYrWhig says:

    @The Sheriff’s A Ni-: Then we’d be left in a situation where single-payer was constitutional but politically impossible, the mandate-based system was just barely politically possible but unconstitutional, and a lot of people would go bankrupt and die. Yay us. Sure showed that Obama what for.

  36. 36
    artem1s says:

    frankly, i’m not going to be particularly shocked or outraged if SCOTUS strikes down ACA in its entirety. I was hoping Roberts would be beholden to his corporate overlords and give the mandate to big health care and pharma but it looks like they have told him to forget it and they are betting on maintaining the status quo of ever escalating premiums with no mandate to actually cover anyone once they do get sick.

    right now i just want the asshats who continue to be GOP curious on the basis of fiscal conservatism and national security, blah, blah, blah, that it f**king well matters who gets to nominate justices to the bench. I’ve too many pointless arguments about Roe v Wade and 5-4 majorities and slippery slopes. This should be a huge wedge during the election to leverage the kids who are going to get kicked off their parents policy to get out the vote for President Obama. The current War on Women™ should be red flag for any voter who thinks they can play SCOTUS roulette for another 4 years with reproductive rights.

    unfortunately we only get to fight these battles with the court we have, not the court we want.

  37. 37
    Corner Stone says:

    Hey, Captain Obvious. You want a cookie or something?
    Membership in Federalist Society for any potential SCOTUS nominee should signal to Democratic Senators the filibuster is required.

  38. 38
    RP says:

    Once again, the president and his administration shock and awe us with their apparently willful naivety in the face of right wing psychos.

    How, exactly, was the admin. naive?

  39. 39
    JPL says:

    @The Sheriff’s A Ni-: Kennedy maybe, but forget Roberts. He’s proved he’s a hack over and over.

  40. 40
    PeakVT says:

    1) I still think speculation based on oral argument attitudes is Kremlinology.
    2) That said, I think what we’ve seen supports the notion that this is another politicized case that will be decided 5-4 based on what Kennedy decides, and
    3) we don’t have a good idea where Kennedy stands.

  41. 41
    eemom says:

    @RP:

    Sir, you will get nowhere on this blog if you persist in talking sense. Quick, get yer Stoopid on before the knee-jerk brigade devours you.

  42. 42
    Mike Goetz says:

    @RP:

    All of this is very correct.

  43. 43
    phil says:

    @Belafon (formerly anonevent): time will tell in this case, i wouldn’t be surprised to see the mandate stricken and the medicare expansion upheld – it is precisely the unwieldy, clumsy nature of the ACA that makes it susceptible to these types of shenanigans.. i know i’m indulging in some monday morning quarterbacking here but it seems like there’s something approaching a consensus on a medicare-for-all type legislation that would have been much more robust in the face of judicial monkeying

  44. 44
    kindness says:

    John Cole…..Who hacked John’s account? It’s as if he didn’t know that BJ’ers favorite things are to 1) bitch (about just about anything) & 2) throw feces at those they disagree with.

    Where is the real John Cole and what have you done to him?

  45. 45
    ...now I try to be amused says:

    If the Gang of Five were going to overturn the ACA anyway, would it have been better to have it happen next year? I don’t know about that. I think President Obama isn’t as naive as some folks think he is. He’s giving the Republicans every chance to do the right thing — or do the wrong thing publicly. They’re damning themselves by their own words and deeds. Little by little, Republicans are outing themselves as the radicals they are. I hope the mushy middle who decide elections are paying attention.

  46. 46
    Hill Dweller says:

    @Clime Acts: What was the alternative? If the conservatives on the Court had already made up their mind, what approach would have swayed them?

    As I’ve already said repeatedly on the other thread, the SC agreed to hear the challenge to the medicaid expansion(which shocked virtually everyone in the legal community) in Obamacare. If they strike that down, they sure as hell would have struck down an expansion of medicare.

  47. 47
    MikeJ says:

    @phil:

    I think this misses the point. It was terribly naive for the Obama admin to ever count on conservative justices backing any aspect of the ACA,

    So Obama shouldn’t try to pass any legislation because the supremes will strike it down anyway?

    That’s pretty fucking stupid.

  48. 48
    kc says:

    At least Scalia didn’t call the Solicitor General a “libtard . . .”

  49. 49
    FlipYrWhig says:

    @phil:

    know i’m indulging in some monday morning quarterbacking here but it seems like there’s something approaching a consensus on a medicare-for-all type legislation that would have been much more robust in the face of judicial monkeying

    No, there is not such a “consensus,” as was painfully apparent in the actual negotiation for the actual bill. Conservative Democrats explicitly did not want such a thing. Was it stupid of them to think so? Of course. But you need votes from the stupid to get things passed.

  50. 50
    Chyron HR says:

    Obviously the naive “boy president” Obama should have refused to argue the case in front of the Supreme Court. Then they couldn’t have just struck it down anyway, right?

  51. 51
    eemom says:

    And for fuck’s sake, read this, and lay off with the “Scalia doesn’t want to read the law.” It’s fucking EMBARRASSING.

  52. 52
    Steve says:

    I believe everyone is overinterpreting the oral argument in a big way. The only news from oral argument is that yes, it would be a shocker if Scalia’s vote were in play, as he seems to be well into the Robert Bork stage of his dotage at this point. But I don’t think there’s any new evidence as to the votes of Kennedy, Roberts, or anyone else.

    It’s great to have these “told you so” moments but sometimes it’s worth waiting to see if the thing you predicted, you know, actually happens.

  53. 53
    Lex says:

    @The Sheriff’s A Ni-: Roberts will do it in a hot minute.

    I wrote last August that if you put a gun to my head right then and made me predict, I would call it a 5-4 vote to uphold, on the grounds that Kennedy wasn’t — yet — batshit.

    But to judge from his questions this week, he really has gone ’round the bend. He just took a little longer than the others, who were batshit from the moment they first donned the robe (with the nontrivial exception of the fact that Scalia has been pretty good on important First Amendment stuff).

  54. 54
    Mike says:

    Conservatives to gullible Democrats: “I swear, Charlie Brown. This time I will NOT pull the football away. This time it’s different. I have changed.”

    Fool me once…..shame on…shame on you. Fool me…….you can’t get fooled again.

    IDIOTS!

  55. 55
    phil says:

    @MikeJ: I wrote that in response to Greg Sargent’s piece today, where he says:

    Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

  56. 56
    Judas Escargot, Your Postmodern Neighbor says:

    TPM posted a comment from a reader that, IMO, does a good job explaining just how radical a SCOTUS overturn of ACA would be. The Supreme Court becomes unpredictable, meaning that Congress, in the long term, becomes useless… what’s a legislative body to do when they can no longer reasonably predict the Constitutionality of any Bill beforehand?
    __
    I’ll let our lawyers talk to all the nuances and implications of such a big change to stare decisis, should they care to. But anyone who’s ever played Jenga knows what happens when some damned fool yanks a block out from the bottom row.

  57. 57
    David Koch says:

    BWHAHAHAHAHAHAAHAHAHHAHAHHAHAHHAHAHHAHAHHHAHAH

    The usual firebagger/emoprog douchebags are here to say “why didn’t they see this coming”, yet the very same douchbag e-psychics were the ones saying ACA was such a corporatist bill that the corporatists on the SCTOUS would never over turn it.

  58. 58
    The Dangerman says:

    @PeakVT:

    …is another politicized case that will be decided 5-4 based on what Kennedy decides…

    I’m calling it 6-3, with Kennedy and Roberts voting with the Liberals.

    The USSC is already fighting a legacy of being complete hacks over Bush v. Gore; if they overturn ACA, their legacy as complete hacks will be cemented. They won’t do it.

    ETA: Blocks are boxes and paragraphs work; if the comment box works as it should, I may break down in tears of joy.

    ETA: WHEEEEEEEEEEEEEEEEEEEEEEEEE (think GEICO pig here)

  59. 59
    burnspbesq says:

    I’m stockpiling crow to feed to y’all when the decision comes down. I need to know whether you want red wine or white with it.

  60. 60
    Jeff Spender says:

    @eemom:

    And for fuck’s sake, read this, and lay off with the “Scalia doesn’t want to read the law.” It’s fucking EMBARRASSING.

    Thank you for that link. It was very helpful and illuminating. I guess I’ve been multitasking so much that I read into the comments wrong.

    Good catch. And it does make a lot more sense than what I thought before.

  61. 61
    Tonal Crow says:

    JC, your cynicism is well merited, but historically oral argument has been a poor predictor of decisions. Also too the tax-and-spend power is much less constrained than the commerce power, and the mandate is just a tax. There is no substantive difference between taxing a person and using the proceeds to buy her health insurance (e.g. Medicare) and requiring her to either buy health insurance of her own or pay a tax penalty. The only difference at all is that there’s *more* individual choice with the latter. ETA: Why do Republicans hate individual choice?

  62. 62
    JPL says:

    @The Dangerman: Yup and I said the same thing about campaign finance.

  63. 63
    Belafon (formerly anonevent) says:

    And for everyone hammering Scalia – though he deserves it most of the time – I thought it was insightful of him to ask if the division of the states for and against was mostly divided along party lines.

  64. 64
    Brian says:

    @Clime Acts: Clueless democrats are still better than the vapidity and out right meanness of the right. We can’t start to fight the left until we stop trying to defend against every crazy ass thing the right throws out there.

  65. 65
    FlipYrWhig says:

    @phil: That seems to be the opposite of naive. It would be naive to presume that Scalia would vote the right way. It does not seem naive, but in fact canny, to confront him with his own words and reasoning and dare him to be inconsistent.

  66. 66
    FlipYrWhig says:

    @David Koch: “It’s a Heritage Foundation wet dream!”

  67. 67
  68. 68
    Poopyman says:

    @RP: Boy, you saved me a ton of typing. Especially

    (a) The court hasn’t ruled yet, and trying to predict their decision based on oral argument is a fool’s errand.

    Yes, there’s ample evidence that the court is packed with right-wing hacks who don’t see the point in actually reading legislation they’re adjudicating since they’re going to overturn it anyway. But could we at least wait until their decision actually comes down before we cue up the outrage?
    __
    The point at this stage of the game is to guarantee that the next 2-4 justices to the court are nominated by a Democratic President and confirmed by a filibuster-proof Democratic Senate. Isn’t that a hard enough row to hoe without getting all pre-outraged?

  69. 69
    Bubblegum Tate says:

    This is exactly why I was bummed that administration pushed for the SC case so quickly. Yeah, the actual facts support the ACA, but facts have precisely zero to do with what Scalito-Thomas want. It’s holy war to them, and they couldn’t give less of a fuck about facts.

  70. 70
    liberal says:

    @Davis X. Machina:
    Yeah, I love those paragraphs from Krugman about the Republicans being a revolutionary power.

  71. 71
    MobiusKlein says:

    @burnspbesq:

    I’m stockpiling crow to feed to y’all when the decision comes down. I need to know whether you want red wine or white with it.

    White wine goes with poultry. Unless it’s Crow-au-vin.
    But just give us fresh crow, please.

  72. 72
    Marcellus Shale, Public Dick says:

    ok, so if the law gets struck down, suddenly health care reform is reopened in time for the 2012 campaign. i would urge liberals to stop talking about, or agreeing that this is a death blow to obama. the more its said the more its written.

    the story is the supreme court.

    the next step is someone in the clown car having to make a case for the conservative version of health care. don’t we want to make them work at convincing people, instead of handing them the issue?

    i think they blow it, if they have to lay out a conservative enough policy to keep the gop together but also win, not just a general, but the votes for senate and house members enough to put their views together, given all the crazy shit they said in opposition to the law in the first place.

    we can go back to the robust public option, what do they go back to? what do they propose?

    its not over unless we concede that obama can’t make a case.

  73. 73
    Punchy says:

    I didn’t really want to believe the extent of the corruption in the Court. It’s actually frightening, far beyond the scope of the PPACA case.

    As others have said, a court this absurdly indifferent to precedent is almost certain to strike down Roe v. Wade given the chance, and that chance will almost certainly be coming soon.

  74. 74

    @FlipYrWhig:

    Then we’d be left in a situation where single-payer was constitutional but politically impossible, the mandate-based system was just barely politically possible but unconstitutional, and a lot of people would go bankrupt and die.

    No. We’d be left in a situation where people believed that single payer might be constitutional, but nobody would be certain of anything because the Supreme Court can’t be trusted to rule consistently. That’s the scariest part of this whole mess. All the precedent, including decisions made by many of the justices we’re expecting to rule against the law in this case, says PPACA should be constitutional. If the Court turns around and says it isn’t, there’s no way to be sure about anything until after the Supreme Court has had its say.

  75. 75
    gaz says:

    @FlipYrWhig: To be fair here, I think the overarching point seems to be that it was naive to expect them to give a damn when confronted with their own inconsistency.

  76. 76
    Satanicpanic says:

    Oh great, wring those hands. And feed the troll while you’re at it.

  77. 77

    Lets just say the Supremes DO knock this down. Why should I be pissed at Obama for it?

    What should he have done, said” “…fuck health care reform, the Supremes will knock it down anyway, lets go play basketball instead.”?

  78. 78
    Gary says:

    I think it’s anybody’s call whether Obamacare loses 5-4 or wins by either 5-4 or 6-3. While I view Kennedy as being the most likely swing vote, if he leaves the dark side, Roberts might come along too, to assign the majority decision to himself.

    I agree the five conservatives have essentially shown themselves to be unprincipled hacks, but that doesn’t automatically mean another Bush v. Gore. Ruling for Bush in that case was an unambiguous victory for the Republican Party — too great a temptation for the lowly partisan hacks circumstance (and a well-oiled right-wing machine) had placed on the highest court in the land.

    This case is different. While conservatives have become apoplectic about Obamacare, that stance is ginned-up hypocrisy that is mainly driven by a desire to deny Obama and victories. Conservatives certainly have no principled objection to the mandate — they devised it (courtesy of the Heritage Foundation) as an alternative to single payer. In contrast to Bush v. Gore, a partisan ruling here would not unambiguously advance the Republican Party. Yes, it would hand Obama a defeat, but it is unclear whether it would actually be in the long-term interests of the Republican Party. On the one hand, it would be a major setback to the regulatory state and advance the fanatical right-wing goal to return to the laissez-faire state of the 19th Century. Yet, the Democrats might well be enraged at tens of millions being denied health care coverage, insurance companies being permitted to deny coverage for pre-existing conditions, young adults being thrown off their parents’ coverage, etc. The Democrats might then have a strong issue campaigning for single payer — which has consistently polled at majority support.

    Striking Obamacare would in one sense be worse than Bush v. Gore — which is one of the five worst decisions of the Supreme Court. Being an unprincipled pile of dreck, Bush v. Gore essentially admitted it was a cheap gimmick, and explicitly said it was an advance to the presidency card that could only be used once and should not be cited as precedent. A decision striking Obamacare could call into question all the commerce/regulatory decisions since the court began upholding the New Deal regulatory state. And such a decision would be a truly unprincipled decision that would disregard more than seven decades of precedent.

    So, what this comes down to is whether the five conservatives are willing to prostitute themselves for a more ambiguous partisan return than the five conservatives received in Bush v. Gore. It’s like the old joke about the man who asks the woman if she would sleep with him for a million dollars. The woman mulls it over and then says yes. So then the man asks, “Well how about for two dollars?” The woman gets insulted and says, “What kind of a girl do you think I am?” The man responds, “We’ve already established that. Now we’re just haggling.”

    Yes, the five conservatives have already established themselves as whores, but are Kennedy and Roberts common streetwalkers (like Scalia, Thomas and Roberts) or are they high-priced call-girls? Actually, Kennedy need only be a three-dollar hooker for Obamacare and the modern regulatory state to be saved. On this momentous question turns the fate of the nation.

  79. 79
    Tonal Crow says:

    @MobiusKlein:

    White wine goes with poultry. Unless it’s Crow-au-vin. But just give us fresh crow, please.

    W-w-w-wait a second here. What’s this perverted talk of eating corvids?

  80. 80
    Corner Stone says:

    @FlipYrWhig:

    It does not seem naive, but in fact canny, to confront him [Scalia] with his own words and reasoning and dare him to be inconsistent.

    SCOTUS did away with some 100 years of precedent deciding Citizens United, according to some experts, and specifically outright stated the Bush v Gore decision shouldn’t be held as precedent.
    You think there’s a twitch of “consistency” involved when it comes to what they want to happen?

  81. 81
    David Koch says:

    @burnspbesq: Huh? You’re still saying it will be upheld?

    How can you say that when they’re being so hostile and ridiculous during oral arguments (and that’s not me saying it, it’s Reagan’s solicitor general and noted conservative scholars saying it)?

  82. 82
    Martin says:

    @phil:

    it’s about believing your own hype instead of believing your eyes

    Hype? Seriously, in order for a society to function, it needs to have a certain amount of trust that the institutions we’ve built will serve the function they were constructed to do. It’s one thing to question the individuals doing the job, and something else entirely to question the entire institution. Patriots do the former, anarchists and traitors do the latter. We simply cannot afford to take the position that the court system cannot function. That’s not hype. That’s simply the foundation on which a working society rests.

    I still think this will be 6-3 or better to uphold, but if it goes down 5-4, particularly if the entire bill goes down, that’s going to rock this country worse than Bush v. Gore did. It’s going to effectively mean that the Judicial branch is wholly unreliable, and in that case, Congress and the Executive are going to have to take steps to run the country as if the Judicial branch can’t function as an effective check. Just imagine what that’s going to look like.

  83. 83
    Rick Massimo says:

    Hey, why is everyone so worried about a 5-4 decision? Even if they vote 5-4 in favor of scrapping the ACA, the law will still stand. Everyone knows that you need to get 60% of the votes to do anything, otherwise it’s a dictatorial overreach that ignores the clear will of the American people and plunges us into tyranny.

    /gallows humor

  84. 84
    danielx says:

    @The Dangerman:

    I suspect you may be a little optimistic, in that the conservative Supremes don’t give a fiddler’s fuck about their legal legacy. The only legacy they’re concerned with is ideological, as in have they sufficiently furthered the goals of the Federalist Society and corporate America.

  85. 85
    Judas Escargot, Your Postmodern Neighbor says:

    @burnspbesq:

    I’m stockpiling crow to feed to y’all when the decision comes down. I need to know whether you want red wine or white with it.

    I would feast upon corbeau tartare, washed down with a leftover bottle of Beaujolais Nouveau from 2008, if that’s what it took to be proven wrong on something like this.

  86. 86
    FlipYrWhig says:

    @gaz: Well, what’s the alternative? If it’s naive to think they’ll give a damn, what’s the next best strategy for making a forceful case to a body that, whether we like it or not, includes ideologues and hacks?

  87. 87
    peach flavored shampoo says:

    How is everyone so sure the Supremes wont just declare single-payer unconstitutional as well, should we somehow get there?

  88. 88
    Frank says:

    @mark: Really numbnuts? Your impressed by this sort of performance? Please tell us how getting bamboozled by conservatives is a strategy for winning future elections.

  89. 89
    Emerald says:

    @…now I try to be amused:

    I hope the mushy middle who decide elections are paying attention.

    The mushy middle who decide elections never pay attention. That’s why they’re mushy.

    I’ve never had much hope for this–although I fail to understand why Obama is “naive” for passing the law. My only hope is that Roberts protects the insurance companies who want their millions of new accounts, and/or that Kennedy quails in the face of killing tens of thousands of people, which will be the real result of overturning the ACA.

    Look, the Court is corrupt. They’re supposed to be at least nominally above politics, yet they’re steeped in political ideology. Thomas, of course, is financially corrupt for taking $$$ through is wife’s activity to overturn the law, and the rest are simply morally corrupt.

    But they are corrupt, and I really don’t think we can do a thing about it.

    Because even if Obama is reelected, as I’m sure he will be, the Senate will refuse to confirm any SCOTUS justices he nominates, and we’ll be left with an even more strongly “conservative” court. The Republicans easily will have enough Senators to do that.

    Any thoughts on that scenario?

  90. 90
    Satanicpanic says:

    @peach flavored shampoo: They would, obviously. Maybe it’s time to resurrect FDR’s court packing scheme? (It’s no dumber than hoping for single payer if ACA goes down).

  91. 91
    eyelessgame says:

    @Mike Goetz: This. Folks, pay attention to what Mike says here – Roberts will vote the way Kennedy votes, because he wants to write the majority opinion. It’s part of the job and privilege of the Chief Justice: the most senior Court member who votes with the majority writes the opinion of the Court.

    If Kennedy votes to strike it down, so will Roberts, and he may then let Scalia write the opinion (but maybe not).

    So it’s either going to be 5-4 against or 6-3 uphold, and if it’s 6-3, Federalist Roberts will write as narrow an opinion as he can – possibly something that prompts a separate concurrence by the four rational actors.

  92. 92
    Dave says:

    OK, well, before you get all emo, the underlying problem is actually that SCALIA IS A RETARDED PRICK.

  93. 93
    Enhanced Voting Techniques says:

    I don’t know, the story I always heard was these conservative justices were there to protect Corporate Person Hood as shown with Citizens United. The ACA doesn’t really touch on that and in many ways helps out corporate America.

    There was never any doubt that Scalia and Thomas don’t give a shit about the Constitution and just want to tell the left to shove it. But the rest of them I am not so sure of. After all Scalia and Thomas doesn’t give a shit about what they say because they know it always comes down to Kennedy and Roberts.

  94. 94
    FlipYrWhig says:

    @Corner Stone: No, I don’t, but if you need 5 votes out of 9 it hardly seems “naive” to try everything possible to sway as many as possible. I don’t see where “naive” comes from. What would be the hard-nosed, gimlet-eyed cynic approach, the least naive? What’s the other play? Seems like something that would need to be answered before declaring that what was done was done out of naïveté.

  95. 95
    gaz says:

    @FlipYrWhig: Whoa – I wasn’t weighing in on that – if I implied otherwise I didn’t intend to.

    The fact is, short of ethics investigations, I have no idea how we can have a functioning democracy with an increasingly corrupt SCOTUS.

    Torches? Pitchforks?

    Seriously, I really don’t know. But I was just pointing out that the fact is, nobody should *expect* these bad actors to argue in good faith, and that it’s probably foolish to do so.

  96. 96
    PeakVT says:

    @The Dangerman: Do we know if Kennedy and Roberts – the only two that might be swayed by the concept – care about the court’s reputation, or are people projecting that concern onto them?

    @Martin: Doesn’t legal chaos favor conservatives by freezing Congress?

  97. 97
    ellennelle says:

    @mark:

    mark, thank you so much for making the point i found most horrifying. not only was scalia talking teajahidist lingo throughout, but he made it abundantly clear he had not read the damn bill, and then admitted to it!

    (charlie pierce skewered him good, but still left out this key factoid on the 2700 pages.)

    this would all seem to me to be grounds for impeachment. a justice claims to be reviewing a bill’s constitutionality without even reading the damn thing?

    this to my mind is far far worse than thomas’s open fraud on his damn income forms.

  98. 98

    @Martin:

    and in that case, Congress and the Executive are going to have to take steps to run the country as if the Judicial branch can’t function as an effective check. Just imagine what that’s going to look like.

    Extremely ugly if the Republicans are in control of the Presidency or either house of Congress.

  99. 99
    FlipYrWhig says:

    @gaz: Sorry, just building on your question.

  100. 100
    David Koch says:

    H I L A R I O U S

    trolls who’ve spent 2 years calling for the destruction of what they viewed as a corporatist bill, are now lamenting that they may get their wish.

    Anything to bash obama. if it gets upheld they’ll bash him (“of course it was upheld, it’s a corporate giveaway”). if it gets struck down they’ll bash him (“how could he not expect this outcome”).

  101. 101
    Zandar says:

    @Martin:

    I still think this will be 6-3 or better to uphold, but if it goes down 5-4, particularly if the entire bill goes down, that’s going to rock this country worse than Bush v. Gore did. It’s going to effectively mean that the Judicial branch is wholly unreliable, and in that case, Congress and the Executive are going to have to take steps to run the country as if the Judicial branch can’t function as an effective check. Just imagine what that’s going to look like.

    As I said yesterday, it will look like The Nothing.

    If the ACA is overturned, then we will have Republicans say that President Obama literally cannot sign any more bills into law because they might be struck down. Because of that, anything that does pass should be treated as no longer actual law, including executive orders and signing statements.

    In other words, the President will be completely, functionally, totally illegitimate in the eyes of half the country, and questionable in the other half.

    At that point, Republicans will proceed to write bills that basically repeal the last 80 years of social progress and say that the President has no choice but to sign them because otherwise it proves their point that he is illegitimate.

  102. 102
    FlipYrWhig says:

    OK, question for the lawyers. I’m seeking parallels. Forget broccoli. Would it be constitutional to pass a law requiring every household to buy a gun?

  103. 103
    gaz says:

    @FlipYrWhig: The scary thing is, I think we’ve borne witness to an incredible end-game orchestrated by neo-federalist freakjobs. Over the past several administrations we’ve witnessed accelerated attacks on our privacy, on our democratic process (CU), hell even now, arguably, the effin’ commerce clause is getting attacked.

    The whole thing seems to be a long-con to unravel the moors of our country and sell the leftovers to the highest bidder.

    The SCOTUS has been successfully liberated of any accountability whatsoever at this stage. There is nothing these people can’t do, or won’t do if they feel it suits them. Who the hell is going to tell them they can’t do whatever they want?

  104. 104
    Steve in DC says:

    @David Koch

    I’m not lamenting it at all. The ACA is a horrible bill and was one of many times Obama stuck the knife in our backs, turned out to have been lying his ass of on the campaign trail, and served us all up the corporations on a silver platter with a smile to the cheering of his Obots.

    It’s still a horrible bill, and if it goes away great, I hope we get something better. Maybe he will actually go with single payer. Maybe we’ll see strong pushes in the states to create their own solutions.

    Lamenting, not at all. We were told he was against the mandates, turns out he was fucking lying his ass off to us, anything to get elected. Then we got sold out and got a mandate that many people figured wouldn’t make it.

    Lamenting, nope, laughing, yeah!

  105. 105
    David Koch says:

    @Martin:

    I still think this will be 6-3 or better to uphold

    What makes you say that in light of their hostile and ridiculous performance during oral arguments?

  106. 106
    Tonal Crow says:

    @FlipYrWhig:

    Would it be constitutional to pass a law requiring every household to buy a gun?

    Probably. For the same reason re: the tax-and-spend clause that I mention above, and described in more detail here and here.

    It’s a different question whether Congress could make you keep the gun after buying it, or whether they could make you practice using it.

  107. 107
    Clime Acts says:

    @Chyron HR:

    Once again, our True Progressive betters reveal the true force behind everything that is wrong with America: the alleged “President” Obama. How dare he appoint Scalia, Alito, et al to the Supreme Court?

    Stupid reply.

  108. 108
    Martin says:

    @Punchy:

    As others have said, a court this absurdly indifferent to precedent is almost certain to strike down Roe v. Wade given the chance, and that chance will almost certainly be coming soon.

    Well, to draw this back a bit, I don’t think there’s a lot of evidence that this court is indifferent to precedent. I think we’re simply projecting that fear on the court based on how we’re afraid they’re going to rule.

    Another thing to consider is that while the court may pretend to be apolitical (even when they do a terrible job pretending) they’re not indifferent to politics. They’ve gotten few cases that arrived this heated and with this much public attention and input, and we know that the court will choose cases on political grounds. They’ll hear a case that they think demands their attention – and I don’t think any of them felt that this case couldn’t be heard, even if they unanimously thought it was constitutional from day one. They’ve agreed to hear the case somewhat sooner than anyone expected and they scheduled vastly more time to hear the case than they otherwise would have. So far, they’ve worked furiously to tie up the political loose end of ruling whether or not this law is constitutional. So far, this is almost entirely for appearances and political concerns – this case is being handled in a special way.

    And yet, they’ve admitted that they aren’t going to read the bill. They’ve voluntarily trotted out the views of half the country regarding broccoli, even though they of all people know that it’s a stupid fucking argument. Scalia is a dick, but he’s not stupid regarding the law. I get the sense that, to a degree, we’re getting a show here. The court is hearing a case because the public is demanding it be heard and one way or another they’re looking to put a political fire out. A 5-4 decision to uphold or overturn along expected lines would be the worst possible outcome – and they MUST know that. They knew that during civil rights and we know the justices worked incredibly hard to deliver clear majority decisions. I have to think that they’re doing that here again. If they rule against the bill, it’ll be 7-2 or worse. If they rule for it, it’ll be probably about the same – and if they’re going in expecting to rule in one direction, knowing that there’s going to a huge political response to the decision, what better way to try and temper emotions than to make sure the losing party’s views were heard in one way or another, so they can’t come back and shriek “But what about broccoli!”

    I know that’s ascribing credit to at least 4 guys that probably don’t deserve it at all, and it’s probably hopelessly naïve and optimistic, but that’s really the feeling I have from this. It feels a bit like rattling off an employees best qualities and strengths right before you fire them.

  109. 109
    Steve in DC says:

    @FlipYrWhig

    At one point there was a legal requirement to own a firearm so you could participate in a militia. You were required to have a rifle or musket, a certain amount of ammo/powder, etc.

    I’m not sure why it was removed or if it ever had any legal issues, but it was required.

  110. 110
    Miki says:

    @eric:

    eric Says: So, why should it be illegal to fail to serve a black person at your roadside diner? That, too, is inactivity ….

    Apparently it’s illegal only if one is not failing to serve broccoli at the roadside diner (double negative intended since there’s no place at the SCOTUS for reasoned legal argument).

  111. 111
    KXB says:

    So, the Roberts court looked into the Constitution, and found that entities which cannot vote still have a right to unlimited political spending and fundraising. Now, this same court looks into the Constitution, and even though the concept of health insurance is nowhere in the document, will find that since it is not mentioned, that means Congress over-stepped its bounds.

    For anyone who remembers their early civics, “Marby v. Madison” – the case which established judicial review is notable in that the Court used a power that as no granted to it by the Constitution.

  112. 112
    Mark S. says:

    @peach flavored shampoo:

    How is everyone so sure the Supremes wont just declare single-payer unconstitutional as well, should we somehow get there?

    If they did that, than Medicare (and hell, probably Social Security) would be unconstitutional as well. These guys aren’t that reactionary.

    Whatever else it is, the individual mandate is novel, in that it requires buying something from a third party as opposed to contributing to a government fund like Medicare. There simply aren’t a bunch of precedents for that, except for some 1792 law requiring every able-bodied man to buy a gun. The idea that this is a slam dunk constitutional issue strikes me as odd.

  113. 113
    Belafon (formerly anonevent) says:

    @FlipYrWhig: Yes, it would be interesting to see what the constitutionality of the Militia act of 1792 is.

  114. 114
    Chris says:

    Every one of these men was a member of the Federalist Society.

    OT, but why do they call themselves the Federalist Society, when the Federalists, I thought, were the original “big government” party?

  115. 115
    ellennelle says:

    also too, on the other hand, tpm posted a reader’s comment that makes perfect sense, though.

    bottom line, overturning the law would require so many reversals of precedent that such an act on the part of the court would be tantamount to an arbitrary ruling, going completely against the grain of the very concept of the rule of law.

    worth a read. and makes me wonder if scalia was just being pissy that roberts had made them suffer all this nonsense when there’s no real there there. so he didn’t even bother to do his homework beyond watching fox pundits pontificate. it allowed him to wax all senatorial about how essentially he would never write much less pass such a monster (in volume or content).

    nah; wish i could give him more credit. he and thomas are in the pocket on this one. remains to be seen who else will take that thoroughly unprecedented risk on precedent.

    a parting thought: pierce (see above comment for that link) points out that scalia has been described as bored and wanting out to do other things, now that his dream of becoming chief is gone. i do find a delicious but perverse delight in knowing how trapped he must therefore feel that he cannot leave the court until we have a republican president. which may explain some of his insane nonsense this week; anything to get obama out of office.

  116. 116
    David Koch says:

    @Steve in DC:
    AHAHAHHAHAHAHHAHAHAHHAHAHAH

    if this is a corporate giveaway, then why didn’t corporations file an amicus brief? why didn’t the corporatists run a PR campaign on keeping the bill intact? Why would corporatist justices on the bench vote against corporatist interests?

    How can you be against mandates, when single-payer is one big mandate?

  117. 117
    ThatLeftTurnInABQ says:

    @Marcellus Shale, Public Dick:

    its not over unless we concede that obama can’t make a case.

    All of your points in this comment are extremely well put. From a practical standpoint, the difficulty that we have to overcome in terms of getting our own message out, is that too many people who have ownership of what passes for a microphone on the Left are emotionally invested in the idea that Obama can’t make a case. Invested to a degree that they can’t make a good case for the Democrats because they keep pausing in mid-message to scratch that Obama is teh suxxor itch that feels so good when you give it a good rip. Seemingly everybody in emoprogistan thinks that they would make a better President, and letting the whole world know it is more important than other considerations.
     
    Frankly, I think some of them hate Obama as bitterly as the GOPers do. Fuck ’em, I say. I fully intend to live as long as I possibly can just so I can beat them about the head and shoulders with all of the bullshit they are writing today, 20 years from now when they are still making tiresome bullshit comparisons, only between President Sellout (D-2032) and the glory days of the Obama admin. And if you think that is hyperbole, consider the encomiums now being written about LBJ (to show up Obama by way of contrast) by either the children of the folks who chanted “Hey, hey, LBJ, how many kids did you kill today!?” or in some cases by the very same people.

  118. 118
    Steve says:

    @FlipYrWhig: Yes. In fact, Congress has already done this, in the Militia Act of 1792. But that’s a function of Congress’ power to raise an army, not the commerce clause.

  119. 119
    David Koch says:

    @Steve in DC:

    served us all up the corporations on a silver platter with a smile to the cheering of his Obots.

    this is what makes guys like you so laughable. Noted Obot Paul Krugman enthusiastically supported the bill. Even the notorious Obot Glenn Greenwald supported it.

    More better trolls, please.

  120. 120
    Chris says:

    @Gary:

    A decision striking Obamacare could call into question all the commerce/regulatory decisions since the court began upholding the New Deal regulatory state.

    Isn’t that what they want? More than that, isn’t that like the Holy Grail of everything they want?

  121. 121
    JWL says:

    “Alternative legislature”? An apt description.

    Those people also stampeded America into unleashing the Iraq War in 2003.

    As events unfolded after 9/11, I abandoned the High Road. No more of that “honorable opposition” bullshit. Today I believe wholeheartedly in the concept of domestic enemies. Those people and their political movement (The GOP) can fairly be characterized as American Fascists, devoted to the practice of subverting democratic process to further corporate control of government. They may be (indeed, indisputably are) Americans, but they are also my mortal enemies.

    That’s also the feeling of a majority of the democratic party’s rank-and-file (or so I believe). Their leadership might continue to walk the high road, but not for long. Events are quickly rendering that road impassable. Those of them who refuse to fight will sooner or later be exposed for what they will have proved themselves to be: active collaborators with evil.

  122. 122
    Martin says:

    @PeakVT:

    Doesn’t legal chaos favor conservatives by freezing Congress?

    No, legal chaos shifts power to the executive because the executive can act unilaterally. We’ll wind up drowning in signing statements and other bullshit like that, but ultimately the nation has to function, and if the courts don’t work and the legislature doesn’t, then the executive is going to go rogue and get it done.

  123. 123
    FlipYrWhig says:

    @Steve in DC:

    It’s still a horrible bill, and if it goes away great, I hope we get something better. Maybe he will actually go with single payer. Maybe we’ll see strong pushes in the states to create their own solutions.

    Or maybe we’ll see diddly-shit and thousands if not millions of people going bankrupt and dying. That seems a bit more likely, no, considering that we’ve just been through a mass freakout at the state level regarding something as anodyne as birth control pills?

  124. 124
    FlipYrWhig says:

    @Martin: I submit that we’ve already been seeing that, much to the chagrin of avowed civil libertarians.

  125. 125
    El Cid says:

    No matter how much pricks they are right now, I’m leaving it as an empirical matter which way they will rule; it’s entirely plausible that what they’re saying / asking right now is a weak indicator of an eventual ruling.

    I don’t know. And even after all this, I’m not sure of how I think they’ll decide.

  126. 126
    Corner Stone says:

    @FlipYrWhig: I never used the characterization of naive, nor naivete. I quoted your blurb with it included so as to give context to the point I made, re: inconsistency.
    Your challenge of daring them to be inconsistent was my objection.

  127. 127
    ThatLeftTurnInABQ says:

    @Martin:

    No, legal chaos shifts power to the executive because the executive can act unilaterally. We’ll wind up drowning in signing statements and other bullshit like that, but ultimately the nation has to function, and if the courts don’t work and the legislature doesn’t, then the executive is going to go rogue and get it done.

    In this scenario either the WH and Congress turn this into a steel-cage death match, in which case the courts get dragged back into relevancy whether they like it or not, because they have to referee the match, or if the WH and Congress are in alignment with each other, then we get an Enabling Act.

  128. 128
    FlipYrWhig says:

    @Belafon (formerly anonevent): I had an inkling it had happened before, but who knows what would be determined under our current circumstances?

  129. 129
    Chris says:

    @Martin:

    No, legal chaos shifts power to the executive because the executive can act unilaterally. We’ll wind up drowning in signing statements and other bullshit like that, but ultimately the nation has to function, and if the courts don’t work and the legislature doesn’t, then the executive is going to go rogue and get it done.

    Yikes.

    Has there ever been any precedent for this?

  130. 130
    FlipYrWhig says:

    @Corner Stone: IMHO daring them to be inconsistent is not well-characterized as naive, although it may be well-characterized as futile.

  131. 131
    Martin says:

    @Steve:

    Yes. In fact, Congress has already done this, in the Militia Act of 1792. But that’s a function of Congress’ power to raise an army, not the commerce clause.

    Are you sure? Congress’ power to raise an army suggests that it’s legal for them to give you a gun and force you to keep it, not to force you to buy a gun. The Militia Act forced people to buy a gun.

    Now, the country was new, we weren’t so subtle about such things as Karl Marx hadn’t even been born yet to haunt the waking dreams of 27% of the country, so I really doubt anyone would have even thought to consider a distinction back then, but today we definitely would. In today’s courts, I don’t think the Militia Act would stand under that clause. I think it would have to stand under the commerce clause because the court would beg the question over who is responsible for paying to raise the army – the taxpayer or the members of the army?

  132. 132
    Quiddity says:

    @Jay B.: You are not to speak disparagingly of the Obama administration here.

  133. 133
    Martin says:

    @Steve in DC: How can the bill be a giveaway to corporations when the bill is projected to overall lower the cost of health care costs to the country? If less money is being dumped into the health care economy, how are corporations coming out ahead?

    And even under single payer, 96% of the money flows right back into the same private sector health care economy. It’s fractionally better than the mandate, but both are immensely better than what we have.

    Have you guys thought this through at all?

  134. 134
    Gary says:

    @Chris: Jettisoning the regulatory state probably is what Scalia, Thomas and Alito want. I’m not sure about Kennedy, though. I tend to view him as more of a Republican hack and an old-line conservative — but not necessarily a Federalist Society lemming. Going back to the pre-New Deal days may give him pause. Or maybe it won’t. I just think it’s an open question with him.

  135. 135
    dollared says:

    @Martin: This. Which is why a big Commerce Clause attack by SCOTUS is another step toward fascism.

  136. 136
    gogol's wife says:

    @David Koch:

    Yes, depressing.

  137. 137
    gogol's wife says:

    @Quiddity:

    Aw, go suck an egg.

  138. 138
    PeakVT says:

    @Martin: You make it sound like a rogue executive would be politically neutral.

  139. 139
    Judas Escargot, Your Postmodern Neighbor says:

    @Martin:

    No, legal chaos shifts power to the executive because the executive can act unilaterally. […] if the courts don’t work and the legislature doesn’t, then the executive is going to go rogue and get it done.

    Shorter Martin: Oswald Spengler was right.

  140. 140
    Chris says:

    @Gary:

    So, this isn’t just about ACA. Potentially, it’s the entire eighty years since the New Deal that they’re looking at unraveling (and if they pull that off, it goes without saying that civil rights and Roe v. Wade are next).

    @dollared:

    Robert Paxton does point out that one of the setups for fascism is having a democratic government that’s completely paralyzed and dysfunctional (a situation in which turning the power over to a dictator became attractive for the simple virtue of getting things done).

  141. 141
    Some Loser says:

    @David Koch:

    Steve in DC doesn’t actually care about facts or actual opinions, I discovered. He just wants to be outraged and betrayed. That the problem with some liberals; they’re never truly happy unless they’re miserable. They don’t know how to do anything other than bitch and moan, and if you get rid of their reason to bitch and moan, they’ll bitch and moan about you taking away their right to bitch and moan and not doing it well enough.

    Of course, Steve in DC is also a racist from what I seen. That may something to do with it, too.

  142. 142
    Martin says:

    @Chris:

    Yikes.
    Has there ever been any precedent for this?

    Sure. Civil War. Even Bush/Cheney some. We’ve seen a certain degree of it with Obama during the debt ceiling battle – one way or another, were weren’t going to default, even if that required Obama to defy Congress, and with the war on terror shit.

    The President has quite a lot more power than they use. They don’t use it because it’s so easy to focus responsibility on the position, even when it doesn’t belong there (see: Firebagger) and so the consequence of overuse is pretty steep – from impeachment by Congress to broad and sweeping electoral defeats to public uprisings. But consider if Congress refused to appropriate money – how do they enforce that? They can’t. The fed keeps printing it, or the mint – which the President controls, or Treasury keeps issuing bonds, and the tell Congress to fuck off and do what they want. All of the real enforcement mechanisms are with the President, and if those under him – from the military to law enforcement to agency heads – view Congress and the courts also as non-functional, then they’re probably going to to along with this. What choice do they have? They don’t want to see the country collapse any more than the President does. In an effort to fix the courts, the President could make nothing but recess appointments. We’ve had recess appts to SCOTUS before – even to the chief justice position. We accept as CW that the justices can serve for life, but the Constitution doesn’t say that. It says “shall hold their offices during good behavior”. Well, I imagine if things really stop working, the President will decide that ‘good behavior’ means something other than ‘breathing’ and will replace them. How that replacement is enforced is a different matter.

    You have to trust that we aren’t a nation of anarchists. We’re going to come up solutions to problems, even if they’re out of scope, and we’ll deal with the consequences later. That’s always been true, even outside of a crisis. That’s what the Bin Laden raid was. That’s what the Al-Awlaki drone strike was. They were both out of scope. Were they illegal? Uh, maybe? Were they an overreach of power? Uh, maybe? We don’t know. Nobody ever defined those bounds, but shit needed to get done so the President did it. Congress could have done their job and defined those bounds, but they didn’t. So, that necessarily resulted in a transfer of power to the executive – one that will stay there until Congress gets their shit together and takes that power back.

  143. 143
    Some Loser says:

    @eemom:

    I tried to excuse them in an earlier thread, but you’re right, this is extremely embarrassing. You’ve been here longer than I have, but do they act like this with every court case? Is this the Liberal Blogosphere’s version of Conventional Wisdom?

    I know the emoprogs and firebaggers like being miserable, depressed, and betrayed, but is this an actual thing for all liberals? Does any sign of difficulty cause them to throw their hands into the air and run around screaming?

    Jesus! Barely any of them actually understand Scalia’s words in context!

  144. 144
    ThatLeftTurnInABQ says:

    @Martin:

    one that will stay there until Congress gets their shit together and takes that power back.

     
    Is it just me, or did a number of those remarks from the bench during oral arguments which we are now reading about contain pointed barbs aimed at Congress, with a subtext of this case would have been easy if you chowderheads at the other end of the street could get your act together for a change.

  145. 145
    Martin says:

    @PeakVT:

    You make it sound like a rogue executive would be politically neutral.

    A responsible one probably would be. The upshot is that if Congress truly went to shit, they’d be free from party loyalty, because that would have gone to shit as well. But that’s a complete coin toss whether we’ve elected a responsible President.

    At some level these systems are self-correcting. The Courts legitimacy derives to some degree on their being viewed as legitimate, so they don’t want to step over that line, so they’re going to have to yield to politics at least to some degree. Republicans in Congress I think are dangerously close to that line – to the degree that the court even raised that question, liberal publications like The Economist and Foreign Policy are raising that question. But the President most of all needs to preserve that. That’s the consequence of having that power – the President’s ability to keep federal agencies and the military in support of them depends on them being viewed by those agencies an the military as legitimate. The president cannot go very far astray from the political center without losing that support, not in a government as large as ours, and particularly in a state where Congress and the courts are viewed as largely non-functional.

  146. 146
    Satanicpanic says:

    @Martin: Has there ever been a case in history of a democratic nation becoming this disfunctional entirely through its own doing? I’m trying to think of a parallel other than the USA during the civil war. Sure, our economy is bad, but it’s not we’re burning currency because its worthless bad.

  147. 147
    ...now I try to be amused says:

    @Emerald:

    Because even if Obama is reelected, as I’m sure he will be, the Senate will refuse to confirm any SCOTUS justices he nominates, and we’ll be left with an even more strongly “conservative” court. The Republicans easily will have enough Senators to do that.

    Any thoughts on that scenario?

    I don’t disagree.

    Can the President recess-appoint Supreme Court justices?

  148. 148
    Martin says:

    @ThatLeftTurnInABQ: Oh, absolutely. I think that’s part of the political calculus the justices need to grapple with. To an extent they’ve already declared Congress as non-functional. Can they afford to strike down what is clearly to a very large degree a constitutional bill because of some questionable provisions knowing that the legislature probably can’t fix it?

    Just the fact that the justices care about that question shows that they’re considering the practical consequences of upholding or striking the law down. That also suggests to me that they don’t see a clear line on unconstitutionality, otherwise who gives a shit what the practical cost is? You only debate practical considerations when the principled position isn’t clear cut – and you use the practical cost as a thumb on the scale. So, my sense is that the justices think this is constitutional but they’re worried about precedent. So, if the practical cost is slight, they’d strike it down, duck the precedent issue, and make Congress do the work of finding a less questionable solution. If the practical cost is steep, they’ll keep it and invent their own bounds on precedent.

    I’m expecting the latter in this case. I just can’t accept that any member of the court is truly out to fuck the country, and striking this down knowing that it’ll be a generation before we see anything else on health care would be fucking the country.

  149. 149
    Ruckus says:

    @mark:
    The point of outrage for EVERYONE of all political stripes is that how can a body be created to judge if something is Constitutional or not if THEY DO NOT EVEN READ IT????

    How many of the 535 people elected to vote on the law actually have read all 2700 double spaced, wide margin pages? I’d bet not a lot of them. I’d bet very few congressional staff members have read all of them. Sections, yes. The entire bill? I doubt it.
    But does the court have to read it? Common sense would say absolutely, but we are talking about the law and lawyers. They are talking about the bigger picture, is the mandate constitutional? Does the commerce clause apply? Unless the words in the bill don’t say what most everyone thinks they do, the point is not actual implementation but concept.

  150. 150
    Martin says:

    @Satanicpanic: Well, we’re really not that dysfunctional. Let me put it another way – if Burnsey is right and this is upheld 7-2 (which is where I’m leaning myself, but I’d bet on 6-3, personally) would we consider everything to be dysfunctional?

    And there’s a decent chance the Dems can win the House and hold the Senate, and that Obama wins in a landslide and gets to replace at least Scalia and Ginsburg, if not also Kennedy and Breyer (Breyer is the youngest and will be 78 at the end of Obama’s 2nd term.

    Still dysfunctional?

  151. 151

    I don’t think we necessarily know any more now than we did last week about how the court will rule. That said, while it could happen, I’m still not holding my breath for Scalia, Alito, or Roberts to rule in favor of the ACA. (Thomas’ vote against is a given.) I don’t trust the right wing of the court. Haven’t for the last 11+ years. Sorry if that offends people who think they make their rulings solely based on legal principles and never on politics. Well, no, actually, I’m not sorry.

  152. 152
    Martin says:

    @…now I try to be amused:

    Can the President recess-appoint Supreme Court justices?

    Yes. It’s been done before. Even with Chief Justices. But attitudes toward appointments have changed radically since Roe v Wade. It’s considered a nuclear move by the President today, but Ike did it. Nobody much cared.

  153. 153

    @Martin:

    and that Obama wins in a landslide and gets to replace at least Scalia and Ginsburg,

    How, without a filibuster-proof majority in the Senate? Will the Dems maybe see the light on filibuster reform in the next Congress? I’d be surprised.

  154. 154
    pluege says:

    conservative fraud over the judiciary has always been apparent to anyone able to reason beyond a 5th grade level.

    The fraud of the conservative cretin five on SCOTUS was nailed in blaring sirens and blazing neon in bush v. gore

    the outrageous fraud of the current cretin 5 on SCOTUS infused with the smarmy roberts and absolutely corrupt and insidious alito was further cemented in granite with the Citizens Untied decision.

    that anyone could ever conceive of conservatives on SCOTUS as having anything but the most corrupt political agenda is unbelievable. Such a person is stupid and naive beyond any notion of human intelligence (and yes, kevin drum, we’re looking at you, the obamabots, and many others that continue to facilitate conservative malfeasance with their utter stupidity).
    .

  155. 155
    Some Loser says:

    @TooManyJens:

    See directly above your comment.

  156. 156
    ThatLeftTurnInABQ says:

    @Martin:

    So, my sense is that the justices think this is constitutional but they’re worried about precedent. So, if the practical cost is slight, they’d strike it down, duck the precedent issue, and make Congress do the work of finding a less questionable solution. If the practical cost is steep, they’ll keep it and invent their own bounds on precedent.

     
    That makes sense to me. My best guess is that everybody on the court knows that the law is constitutional, and furthermore they know that there are at least 5 votes to uphold it. For the bomb-throwing conservatives like Scalia, that means fuck it, it’s open season to just say anything I like, just to piss off liberals and vent my spleen at anyone unfortunate enough to come within range. For some of the other justices, it gives them a chance to throw some barbs at Congress, because if Congress didn’t do such a shitty job of crafting legislation then we could all be drinking Mai Tai’s by now. And as for Kennedy, who is reallythe only person in the room who has a vote which actually matters in terms of the outcome, what he is doing is trying to craft a decision which upholds the PPACA (so as not to open the Gates of Hell) but on as narrow a basis as possible so as to discourage the chuckleheads on Capitol Hill from setting up a mandate factory and seeing how many new models they can crank out each year.
     
    I still think we’re looking at 6-3 to uphold, give or take a vote either way.

  157. 157
    Satanicpanic says:

    @Martin: I’m not being alarmist, I’m just trying to imagine how things would go if we continue down the path we’re going. Trying to imagine some historical parallels.

  158. 158
    sherparick says:

    I will gladly buy the house a beer if either Roberts or Kennedy surprise me and vote to sustain AHCA (Obmacare) in whole or in part. And I doubt it will be Kennedy. Justice Kennedy was St. Ronald’s last gift to the nation, after Bork was borked and Ginsburg’s pot smoking came to light. For both conservatives (Lawrnece v. Texas) and liberals (United States v. Lopez) he has shown a willingness to throw out laws that impinge on what he regards and personal liberty. And he his very sceptical of Federal mandates to states in return for Federal money as an impingement on the separate sovereingity of the States. In fact, anyone reading Kennedy in the Lopez and Bond cases should have known that if the court felt its oats on this issue, it would void this law. Further, this will be a big step toward reestablishing the Lochner rule of substantive due process to invalidate a wide variety of Federal and State law that “impinge on the individual’s liberty of contract.” These guys will have us back to 1900 before we know it. The 29 June will be a very interesting day as we might find that not only Obamacare, but Medicaid have been declared unconstitutional and void.

  159. 159

    @Some Loser: Recess appointments are great if you only want your Supreme Court justice to serve for a year or two.

  160. 160
    sherparick says:

    One of the first impacts of Medicaid, if abolished will be the impact on nursing homes caring for the disabled and dementia troubled elderly. Tens of thousands of families will be called and told to come pick up Grandpa or Grandma since the their Medicaid has been terminated and if they don’t, then the next call will be to police for neglect. The economic impact will be huge. And I expect in historical terms it will be considered the worse decision since Dred Scott, also a gift from a Confederate dominated court which also thought it was wiser than any legislature.

  161. 161
    Steve says:

    @Martin: I have great difficulty believing that we have thought through the meaning of the Constitution more than the people who drafted it. That scene with Rodney Dangerfield and Kurt Vonnegut comes to mind.

    Congress wouldn’t make everyone buy a gun today because the process of raising an army looks much different than it did in the 18th century. In the actual 18th century world, it’s not surprising that no one raised an eyebrow at that law. The genius of the Constitution, which the Supreme Court majority may or may not remember, is that it is flexible enough to allow each generation to craft the solutions that work for their times.

  162. 162
    Some Loser says:

    @TooManyJens:

    If we can’t get the Senate to approve of anyone, then this is our only option.

    So, if the President does not get his majority proof Senate, we’ll just have to heckle our representatives until they approve, or let the President recess-appoint. I like the former, but it’ll be more work for us.

  163. 163

    On my pessimistic days, I’m with John’s take, but we’ll find out soon enough. If they call it unconstitutional, they are definitely dropping any pretense to objectivity and commitment to stare decisis. If that happens, we are truly on the verge of some cataclysmic changes in our society. I wonder if Roberts and Kennedy want to go there (the rest of the 5 are hopeless cases and pure movement conservatives) — I think they don’t, but have been wrong before. This will be the most momentous decision of our lives if that happens.

  164. 164

    @Some Loser: Yeah. Plus, IMO, we need to push the Senate leadership to reform the filibuster. Not to eliminate it, but to at least make it cost something so that the Republicans can’t filibuster literally everything.

  165. 165
    amk says:

    Is it June already and the fucking supremes have given their ruling ?

    Congrats cole, now you’ve officially become a pundtwit.

  166. 166
    Martin says:

    @ThatLeftTurnInABQ:

    I still think we’re looking at 6-3 to uphold, give or take a vote either way.

    I think they’ll work hard to avoid 5-4. Remember, in Brown vs Board of Ed, the court was divided, but Warren realized that even if he could pull a slight majority one way or another, it wouldn’t much resolve the matter because the dissenters would only serve to validate the losing view. So, he pushed for a unanimous ruling and got it.

    The question here is whether the court feels that this is anywhere near as landmark a case. It shouldn’t be, but a lot of energy – both with the public and political is invested in it. And the question being asked is a pretty big question regarding the overarching debate on free markets. I don’t expect they’ll feel a unanimous decision is necessary, but I’m guessing they’ll work pretty damn hard to avoid a 5-4 split. That would only inflame both sides, regardless of who was on the receiving end of the deciding vote. I think the Justices recognize the political stakes here. A strong majority either way pretty much kills the issue, as well as tamps down the questions regarding the influence of a single member of the court or any other such political minutiae.

    Again, consider that the court agreed to hear this case this year, and render a decision just before when the conventions will be held. If they wanted to be apolitical about it, they’d have waited. They went out of their way to take this case. I think they’re looking to put out some political fires, not pour fuel on them.

  167. 167
    Bulworth says:

    I’m gonna go Gault.

  168. 168
    shortstop says:

    @Seebach: I don’t know how this case will be decided, but not believing the Supreme Court is corruptible is as willfully obtuse as thinking the Catholic hierarchy hasn’t been corrupted beyond all hope of redemption. Both display a touching if childish need to believe in the goodness of authority in and of itself.

  169. 169
  170. 170
    WJS says:

    @sherparick: Absolutely. And the wingnuts will blame the gub-ment for failing to do what it was supposed to do, and keep the oldsters in the home so that they can keep consuming consumer goods and howling about said gub-ment.

    One thing you can count on is that our wingnuts will never learn, and cannot connect actions with consequences. They seem to think we should have a society where everyone takes care of one another and keeps the gub-ment out of things. And they say this while clapping when someone says that people without health insurance should be left to die and that death panels are a bad thing when applied to the relatives they don’t want to have to pick up from the home.

    Even when their own lives go belly up, and even when they are facing bankruptcy and massive bills, they still find time to vote against their own self-interests and go on Facebook or Yahoo! and scream about Obamacare taking away their liberty. They cannot put two and two together. Ever.

  171. 171
    Bill Arnold says:

    Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?

    The bizarre thing about this particular separability argument is that is applies to all the changes to the US code post the passing of the ACA law. One would need to back out all post ACA changes (laws) in reverse order. Because the alternative legislative history would be different; different horse trades, different 2010 electoral results, etc.
    (Out of curiosity, is this covered in law school?)

  172. 172
    WJS says:

    @Martin:

    The question here is whether the court feels that this is anywhere near as landmark a case.

    This is not a court with the intellectual heft to deliver a landmark case. This crowd couldn’t solve a Scooby Doo mystery with half the clues handed to them.

  173. 173
    ThatLeftTurnInABQ says:

    @Martin:

    I think they’ll work hard to avoid 5-4.

     
    Agreed. I think 7-2 is more likely than 5-4. But in terms of the politics of this decision (and by that I mean the internal politics amongst the 9 justices), in order to get to 6-3 or better Kennedy has to be able to make the threat get on board, because this train is leaving the station, either with you or without you, you pick which one. And if he wants to make that threat credible he has to leave open the possibility of handing down a 5-4 decision. If 5-4 is off the table, then that gives tremendous negotiating leverage to justice #6. Ditto for 6-3 and justice #7. This is just like dealing with the 60th Senator regarding cloture, and at some point the blackmail has to end.

  174. 174
    TenguPhule says:

    Maybe I will still turn out to be wrong, and they will uphold the bill. If so, great.

    And if not, let’s stop pretending to be a Democratic Republic and have Roberts, Alito, Scalia, Thomas and Kennedy executed for treason.

  175. 175
    Omnes Omnibus says:

    @ThatLeftTurnInABQ: Bingo. It’s Kremlinology to try figure out what the Court will do based on cues from the bench during oral argument.

  176. 176
    TenguPhule says:

    But they are corrupt, and I really don’t think we can do a thing about it.

    Because even if Obama is reelected, as I’m sure he will be, the Senate will refuse to confirm any SCOTUS justices he nominates, and we’ll be left with an even more strongly “conservative” court. The Republicans easily will have enough Senators to do that.

    Any thoughts on that scenario?

    Declare Obama President for Life and begin the bloody purges.

    Because let’s face it, it beats the alternative.

  177. 177
    Martin says:

    @ThatLeftTurnInABQ: Well, the desire to avoid a close decision should land on Roberts, so in Kennedy puts him in the minority, then I think he gets on board as #6. Then he and Ginsburg work on Scalia, who I expect will come along easily enough. Remember Scalia said: “Congress may regulate even noneconomic local activity, if that regulation is a necessary part of a more general regulation of interstate commerce”. He even supported Congress forbidding farmers from growing food for their own use, if that interfered with overall commerce. That’s every bit as much of a mandate as what’s in PPACA.

    Scalia has been down this road before, so I don’t think he’s even a difficult get. His teatard talking points I think is just him being a dick. Thomas is a lost cause (in so many ways). Alito is the iffy one.

    I suspect that’s where Burns gets to 7-2.

  178. 178
    Omnes Omnibus says:

    @Martin: Alito and Thomas are both lost causes in my opinion. I could also see one other going against it – I just don’t know which. I could end up being wrong. It could be 5-4 against and I would have to seriously reconsider the points being made my the cynics here. I don’t think that will be the case though.

  179. 179
    The Raven says:

    @David Koch: Well, I’m not sure I qualify as a “firebagger,” but whatever I am, I was dubious that the Court would support this from the very beginning.

  180. 180
    Martin says:

    @TenguPhule:

    Because even if Obama is reelected, as I’m sure he will be, the Senate will refuse to confirm any SCOTUS justices he nominates

    I’m not so sure. At some point here, they’re going to have to accept that do-nothingness is a losing strategy. The plan was to tie Obama’s hands so badly that he’d lose. If he wins – and if he wins by margins as we’re seeing in the polls now, they’re going to have to change their tactic drastically.

    And their filibustering is a fine tactic if they are confident they’re going to win the Senate. If they don’t, they could be truly fucked if the Dems change the filibuster rules with a majority in the next Congress. They haven’t so far because they were worried about being in the minority themselves, but I think if the Dems can win the House back and Obama is in a 2nd term, they’ll change the rules just to get things working again.

  181. 181
    The Raven says:

    The Roberts Court: working on being the worst since the Taney Court.

    I wonder if any of the Democratic Senators who voted for these guys are regretting it now? I wonder if Obama is looking at FDR’s response to a hostile Court, and wishing he’d adopted it.

  182. 182
    rikyrah says:

    I always thought you were on point about this.

  183. 183
    danimal says:

    Most of me remains confident that a 6-3 or 7-2 vote to uphold is going to occur. My main fear, and it has not been assuaged after this week’s hearings, is that the court will use the ACA ruling to overturn the New Deal consensus and forge a new, glorious conservative standard.

    I still don’t think they have the cajones, but the thought still nags at me.

  184. 184
    catpal says:

    like you, no one could convince me that this was not going to be influenced by the Teanut conservatives.

    It is even worse than that since Scalia is whining and too lazy to actually Read a Bill that is full of legal statements which is supposed to be his f**#ing JOB right now.

    apparently he just wants to attend Tea parties. and how dare you bother him about anything that requires brain work.

  185. 185
    Ruckus says:

    @danimal:
    I’d agree with everything except the amount of my confidence. I just don’t have a lot. I’m just an optimist who sees the glass 1/8 full.

  186. 186
    KevinA says:

    @Belafon (formerly anonevent):

    I think they’ll strike it down. The more ambitious ones just might open the door to killing SS, Medicaid and Medicare (after all, they’ll say, is it not “coercive?”).

  187. 187
    mclaren says:

    The Supreme Court openly announced its abandonment of the rule of law when it contemptuously refused to even hear the petition presented by Anwar Al-Awlaki’s father pleading that his soon should have the right to a trial before the president murdered him.

    Once that bar was crossed, the Supreme Court threw out the basic rule of law that has served as the foundation of Western society since the Magna Carta. We now exist in a state of barbarism in which anyone with power and money can do anything today, because might makes right. All that matters now in America is whether you have the brute force and the hard cash to hammer other people into submission.

  188. 188
    Mnemosyne says:

    @Steve in DC:

    It’s still a horrible bill, and if it goes away great, I hope we get something better. Maybe he will actually go with single payer. Maybe we’ll see strong pushes in the states to create their own solutions.

    If the ACA goes down, Social Security and Medicare/Medicaid go down with it as equally over-broad infringements on personal liberty by the federal government. How, exactly, do you picture a single payer system being implemented if Social Security is ruled unconstitutional? Does it involve magical unicorns or leprechauns?

  189. 189
    AA+ Bonds says:

    Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.

    Younger, non-influential lawyers have this thing where they think more powerful people in their field are just like them, hey ho, we’re all in this together, when almost always, the whole point of becoming a justice or a federal judge or even a powerful commentator is to absolutely throw all principles of consistency out the window so you can become the kind of hack ideologue who gets young narcissists interested in the law in the first place

    This is kind of like Karl Smith telling Paul Krugman to chill out on the neoclassical liars and dopes: a function of age

  190. 190
    AA+ Bonds says:

    @ThatLeftTurnInABQ:

    what he is doing is trying to craft a decision which upholds the PPACA (so as not to open the Gates of Hell) but on as narrow a basis as possible so as to discourage the chuckleheads on Capitol Hill from setting up a mandate factory and seeing how many new models they can crank out each year.

    I have a very hard time imagining that as a real threat – a convenient excuse, maybe, and I guess we’ll see

  191. 191
    AA+ Bonds says:

    To me, that they’re hearing the case means the Court is intellectually bankrupt

  192. 192
    Omnes Omnibus says:

    @mclaren: No, it didn’t.

  193. 193
    mclaren says:

    @Mnemosyne:

    How, exactly, do you picture a single payer system being implemented if Social Security is ruled unconstitutional? Does it involve magical unicorns or leprechauns?

    When Social Security is ruled unconstitutional, Medicare goes away. When medicare and social security disappear, virtually overnight essentially everyone in America will lose their access to medical care — since in the absence of any government program, the only alternative will be private insurance. And, as we all know, today private health insurance is unaffordable and no one in America except the super-wealthy can afford to pay for America’s insanely overpriced medical care, so very quickly you’re going to see people walking into Emergency Rooms and being beaten and tased and dragged out by security guards because the hospitals have gone broke when no one can afford health care and the ER is the last resort for everyone.

    Very quickly, hospitals will burn. People won’t stand for taking their dying kid to a hospital and getting turned away. People will crash their cars into the hospital waiting rooms, dying patients will get turned down and come back with AK-47s and shoot up the hospital. (Because if somebody has terminal cancer, what are they gonna do? Kill the person? See, that tends not to deter people who are already dying.) The national guard will get called out. Hospitals will turn into war zones and doctors and nurses get dragged from their cars by enraged mobs of dying people who can’t get access to medical care anymore.

    You see, the elites can do whatever they want, but in the end, there are more of us than them. When mobs of people start burning down hospitals and 98% of Americans have no access to health care and America’s broken medical-industrial complex finally collapses with a bang and the government has to declare martial law in the major cities and surround hospitals with tanks and troops, the current unsustainable health care system will finally collapse.

    A single payer system will be implemented because the only alternative will be to order Tiananmen-square-style massacres of the 98% of the American population that will no longer have access to health care. I guess it’s conceivable that American army troops will start marching forward in lockstep shooting down mobs of rioting sick people like dogs…but personally, I wouldn’t count on it.

    It’s a really tough call to ask some 19-year-old National Guardsman to shoot his sick mom because she’s participating in a riot that’s burning down the hospital that refused her treatment. I don’t think that’s gonna work. The crunch point comes when you ask American troops to shoot down their children and their wives and the brothers and their parents because their children and wives and brothers and parents are now rioting and burning down health insurance headquarters and firebombing medical devicemakers and stringing up doctors and nurses from lampposts in mass lynchings.

    Mnemosyne’s bizarrely foolish argument is akin to the contemptuous sneers by the proponents of austerity in the Hoover Administration that “How, exactly, do you picture a gigantic social security system being implemented if the Supreme Court rules FDR’s alphabet-agencies unconstitutional? (As indeed the supreme court did)”

    Social security was implemented despite the supreme court in the 1930s because American society started to collapse. When the alternative is society coming apart and disintegrating, large social programs get implemented, and not all the efforts of all the wealthy arrogant elites can stop it.

    Same deal here. When ACA gets struck down, the shit hits the fan, and America’s health care system blows up and breaks down. Maybe you think people will simply tolerate being told “Sorry, we know you’re sick and we could treat you, but you’re simply going to have step outside the hospital and die on the street. Security! Someone get security in here!”

    Personally, I doubt people will stand for that. But who knows? Maybe you’re right. Maybe Americans will meekly stand for being escorted outside the ER and told “Please make sure you die on the sidewalk, off hospital property, otherwise we’ll have to send a cleanup bill to your next of kin.”

    I don’t think so…but time will tell.

  194. 194
    Martin says:

    @KevinA: That’s just trolling. SCOTUS is not going to tear down a 75 year old program that holds close to a quarter of the nations net worth. You guys are getting hysterical.

  195. 195
    Omnes Omnibus says:

    @AA+ Bonds: Resolving a case involving a split between Circuits on major legislation is a sign of intellectual bankruptcy? Jesus, mate, try a little harder. Weakass trolling.

  196. 196
    AA+ Bonds says:

    This would be a fantastic time for lob loggers to start applying some CLS, although of course I am not holding my breath since the mainstream U.S. discourse has had about forty years to learn from that field and hasn’t managed it yet

  197. 197
    AA+ Bonds says:

    @Omnes Omnibus:

    The proper policy decision was to never hear the case and I find the rest of the issues here to be the Tea Party Bonzo Dog Doo Dah Band

    What this is really about is fucking over poor people because at this level of the courts there is really no one left representing them

  198. 198
    AA+ Bonds says:

    This will be just like Bush v. Gore, the courts will be heavily abused and it will become a must-read trade journal article to 99.9999% of attorneys

  199. 199
    mclaren says:

    @Omnes Omnibus:

    I stand corrected. My basic statement is factually accurate, however:

    On December 7, 2010, at the Obama administration’s request, US District Judge John D. Bates dismissed the lawsuit on the grounds that the father did not have legal standing, that the father had failed to satisfy various onerous procedural obstacles, and that the lawsuit was barred by the “political question” doctrine.

    Source: The legal implications of the al-Awlaki assassination

    Claiming that the American court system did not deny Al-Awlaki’s father’s petition because a U.S. District Court denied cert rather than the Supreme Court denying cert is the kind of infantile nitpicking that we’ve come to expect on this forum.

    Having descended into contemptible sophistry, you’ll doubtless regale us next with the casuistry that Obama isn’t president because one word was out of order in his inauguration ceremony

    Go away and peddle your sophistry elsewhere. This is a serious discussion for adults, not a venue for children to play meaningless word-games.

  200. 200
    AA+ Bonds says:

    The political question, as usual, is the only one that matters: are we returning to Lochner or not, and if so, how should we then resist

    This is not about contracts, any more than Lochner was about contracts, so the question is whether Kennedy will be a shitweasel to the subaltern or not (rich white dude, so)

  201. 201
    Omnes Omnibus says:

    @AA+ Bonds: Different Circuits had come to different decisions on the constitutionality of the law. You think that is would have been a good policy to the the law be considered valid in some states but not others?

    @mclaren: Wrong.

  202. 202
    Mnemosyne says:

    @mclaren:

    Mnemosyne’s bizarrely foolish argument is akin to the contemptuous sneers by the proponents of austerity in the Hoover Administration that “How, exactly, do you picture a gigantic social security system being implemented if the Supreme Court rules FDR’s alphabet-agencies unconstitutional? (As indeed the supreme court did)”

    Over-broad, much? Or were you actually under the impression that the TVA doesn’t really exist because the Supreme Court ruled FDR’s alphabet agencies unconstitutional? I guess my city’s post office doesn’t really exist, either, since it was built by one of those “unconstitutional” alphabet agencies well after Schecter Poultry v. United States was decided.

  203. 203
    chopper says:

    the conservative wing is treating this as payback for obama’s statement in his SOTU about citizen’s united. mark it.

  204. 204

    […] also John Cole, who has a long roundup of many other reactions. Worth reading. Tweet Spotlight […]

  205. 205
    David Koch says:

    @The Raven:

    I wonder if any of the Democratic Senators who voted for these guys are regretting it now?

    That’s a good question to ask the sainted Russ Feingold who voted for Roberts.

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