I heard two things last week, and I loved one of them

I’ve been reading your comments on the oral arguments on the health care law and I sympathize. I’m a lawyer but I’m not an expert on the Supreme Court nor am I even much of a “court watcher.” I have enough trouble keeping current with state law and local rules in my area of practice. I don’t know what’s going to happen. I’ll wait for the decision like everyone else, and like everyone else, I’ll learn to live with it. However, I think those who are disappointed and depressed are justified in feeling disappointed and depressed. I think that’s a completely reasonable reaction to what we heard out of that court last week. I’m with you.

I went to the opera for the first time last week, and I sat in front of an older man who is an opera lover. I could tell by how he was pleading with his teenage kids, hoping they would love it. I like fanatics, they’re always so enthusiastic and earnest and they so want you to love what they love, so I made sure to tell him it was my first opera. He approached me at intermission and asked me what I thought and I told him it was “wonderful”, because it was. He was thrilled (a convert, he’s thinking) and he gave me the whole career history of the soprano, and then we talked about other things. On the health care hearing, he said he was worried that the conservative justices were going to “get back” at Obama, because Obama called them out on Citizens in the State of the Union. When I hear things like that, and I hear things like that a lot, I suppose I could leap to the defense of the justices, or the Rule of Law, or the court as an institution, but I find that I don’t have any snappy comebacks or bullet-pointed persuasive arguments for the defense anymore. I’m right there with him, worrying, and I’m no longer wondering what’s wrong with him, us, that we have so little faith because he sounded a little like some very prestigious Reagan-era conservative lawyers:

Fried had confidently predicted the law would be easily upheld. He said he was taken aback by the tone of the arguments. “The vehemence they displayed was totally inappropriate. They seemed to adopt the tea party slogans,” he said.
Pepperdine law professor Douglas W. Kmiec, another top Justice Department lawyer under Reagan, said he hoped the justices would “come to their senses” and uphold the law as a reasonable regulation of interstate commerce.

I’m finding I’m with the opera-lover, nervous and speculating. I’ve been listening to John McCain and Russ Feingold talk about the fall-out from Citizens, and I think they’d sympathize with us, too:

The McCain-Feingold law itself did not take effect until the Supreme Court upheld its constitutionality in McConnell v. FEC in 2003. Seven years later, McCain recalled going with Feingold to the Supreme Court, now under new and more conservative leadership, to hear the Citizens United oral arguments.
“Very seldom in my life have I been more depressed,” McCain said, “because the absolute ignorance of campaign finance reality by many of the judges, especially [Antonin] Scalia, astounded me.”

Feingold, who now heads a PAC dedicated to reversing Citizens United, suggested the Supreme Court may come to regard that ruling in a different light. Justices Ruth Bader Ginsburg and Stephen Breyer suggested recently that the Citizens United ruling should be revisited.
Feingold said: “I think they’re taking judicial notice of the fact that the court has opened up an incredible loophole in our system and has fundamentally changed the way that our democracy works, in a negative way.”

McCain and Feingold were interviewed together by This American Life and McCain went even further:

Ten years ago, Congress voted to reform campaign finance, after Senators John McCain and Russ Feingold took up the cause. Here they reunite on the radio, to reminisce and lament how that reform failed.

McCain spoke in this interview about Scalia’s inappropriate “sarcasm” and the justices “cluelessness” on the reality of political campaigns, and he spoke with real anger and bitterness. No one does “bitter” better than John McCain, so if you’re upset with the Supreme Court, you’ll feel perhaps your first real connection with John McCain when you listen to it.

Last week, reading that Scalia was spouting political slogans when access to health care for 50 million people was on the line, well, like McCain, I am not amused by Justice Scalia. I’m not laughing. The thing is, I don’t think it’s funny. I think we’re right to expect preparation from the justices, I think we’re right to expect some familiarity with the basic facts. If they were familiar with the basic facts but were just putting on some kind of show, we’re right to expect that they use some restraint and an appreciation for the gravity of the situation in both their statements and their questions, and decline to indulge themselves at the expense of the people hanging on their every word. All they have is credibility, and appearances matter. What they say matters, because they are enormously powerful. When I read this:

Paul Clement said, ‘Well, just strike the whole thing down. Congress can come along and just enact everything that it wants back in a couple of days.’ The entire courtroom burst into laughter.

I’m not chuckling along. I’m either exhausted at the absolute cluelessness or disheartened by the cynicism of that statement, depending on whether Clements believes what he’s saying. I don’t know if he does or not, and I don’t much care. I’m a little taken aback by this blithe and breezy attitude towards 50 million people. I’m wondering how we got here, how so many of got to this place, and who is responsible for that. I suspect it isn’t our job to retain or protect or repair the credibility of that court, and we can’t do it for them anyway, even if we wanted to. Ultimately, that’s their job. if we are disappointed and dismayed when we hear them at their work, and we were, I think the responsibility for that is not with us, it is with them.






146 replies
  1. 1
    gaz says:

    Rule of Law is so 1995

  2. 2
    Baud says:

    Scalia has long been known for making cynical wisecracks at oral arguments. Sometimes they reflect how he is going to vote and sometimes they don’t. All we can do now is hope that it is the latter in this case (although I’m not optimistic).

    Even before this case, I thought his behavior in oral arguments was often unbecoming of a Supreme Court justice, and it is especially so in a case of this gravity. I think if a liberal justice acted that way, it would be scandalous in the Village. Another case of IOKIYAR.

  3. 3

    I think we’re right to expect preparation from the justices, I think we’re right to expect some familiarity with the basic facts.

    Preparation’s a waste of time when you already know how you’re going to decide. I mean, yeah, keeps the clerks busy by all means, but one doesn’t have to look at their stuff, or buy it.

    A Romney who can say “My plan is constitutional and his plan isn’t” is, because he can side-step the whole issue thereby, fractionally better placed to defeat Obama.

    And that‘s the bedrock jurisprudential principle, with its roots deep in the soil of the English common law, that will be used to strike the law down.

  4. 4
    Lurker says:

    I suppose we can thank the Tea Party for assailing this law in the courts in the first place and doing their damndest to make sure cancer survivors like me cannot buy their own health insurance with their own money.

    Did the Massachusetts universal health care law ever get attacked in the courts like this?

  5. 5
    chopper says:

    I said it before. the con wing of the court is looking for payback over obama’s SOTU speech.

  6. 6
    mk3872 says:

    We are the collateral damage to 30 years of conservative investment and dominance of media, think tanks and judicial conservative ideology stacking.

    Medicaid, Medicare, SS and Roe v Wade are next.

  7. 7
    Triassic Sands says:

    …and like everyone else, I’ll learn to live with it.

    Correction:

    If the justices strike down the PPACA, some people will have to learn to die with it.

  8. 8
    NR says:

    I cannot believe all the wailing and gnashing of teeth over what is absolutely a foregone conclusion. The same Supreme Court that gave us Citizens United will gleefully uphold the mandate, because it brings about a massive transfer of wealth from American citizens to private corporations. There will be three or four conservative dissenters, to try to placate the teabaggers, but Roberts and his crew are not about to strike down a law that enriches private corporations at the expense of citizens as much as the ACA does. End of story.

  9. 9
    Baud says:

    @NR: I hope you’re right.

  10. 10

    @Lurker: Not really. There are approximately eleven Republicans in the entire state, the plan works, and present GOP thinking is that the states aren’t bound by the Federal constitution in any meaningful way…

  11. 11
    k488 says:

    So what was the opera? (I know, I’m OT, but I’m like the guy who was sitting behind you…)

  12. 12
  13. 13
    Clime Acts says:

    Thank you for writing this, Kay.

    I too have been appalled all along by the cynical, chuckle, chuckle, snort, snort derision of our Beltway betters as they tackle matters of life and death to normal people.

    It is most certainly not just the supremes. Just think of GWB chuckling and snorting over those missing WMD’s.

    These freaks claw their way into these positions of power and then seem to be forced by their huge but paper thin egos to pretend that they are above what their jobs require of them.

    It makes me sick.

    Even worse are all the media drones chortling along to be part of the kool kids.

    God, I loathe these people.

  14. 14
    Kay says:

    @Lurker:

    I suppose we can thank the Tea Party for assailing this law in the courts in the first place and doing their damndest to make sure cancer survivors like me cannot buy their own health insurance with their own money.

    I am sorry for the stress that adds for you. I followed the high risk pools fairly closely because we had people asking at the law office, and they don’t have internet access, and Ohio’s insurance commissioner refused to offer any convenient or accesible information on the program, because it is politically beneficial to her personally if it failed.

  15. 15
    porter says:

    This is a liberal MP and Conservative Senator duking it out for charity……in Canada.
    http://news.nationalpost.com/2.....au-boxing/

    Would love to see Reid and Turtle boy duke it out. Reid, a former boxer, would probably kick McConnell’s ass!

  16. 16
    amk says:

    @Davis X. Machina: what a load of crock.

    And that’s the bedrock jurisprudential principle, with its roots deep in the soil of the English common law, that will be used to strike the law down.

  17. 17
    Joy says:

    Kay, thank you. This captures my feelings exactly. As a lawyer myself, I have become so disillusioned (starting of course with Bush v. Gore). People have been critical of the administration’s expectation that precedent would mean something and tailoring their arguments accordingly, but I guess I, like them, hoped that the courtroom was still one place where well-reasoned arguments still could have an effect. Reading Chris Mooney’s “The Republican Brain” this past week has given me new insight into just how futile arguments based on logic and evidence have become. It’s depressing and I’m not sure how to even overcome that mindset.

  18. 18
    SIA says:

    thank you Kay, for so perfectly expressing my sentiments.

  19. 19

    @amk: Nonsense. Blackstone’s Commentaries clearly adumbrates the principle. American students of the law perhaps know it best in Al Davis’ formulation: “Just win, baby!”

  20. 20
    ant says:

    I find it interesting that a single payer system would sidestep all the constitutional problems that the current ACA bill does.

    I also fully expect that healthcare reform coming from the republicans will be nothing other that Tort reform, deregulation ala credit card/across state line BS, and finally, to role back the law that requires ER’s to treat people with no insurance.

    depressing.

    thanks for the thislife link. I will listen to it now.

  21. 21
    burnspbesq says:

    I heard nothing in three days of oral argument that requires me to do any more than tweak my previously stated view of what I consider to be the most likely outcome.

    I previously said that I thought it would be 7-2 to uphold the mandate. That was based on the theory that Scalia would be boxed in by his concurrence in Raich. I am now prepared to consider the possibility that Scalia will act in an utterly unprincipled manner, ignore or lamely distinguish Raich, and vote against the mandate. However, I still think Kennedy will overcome his obvious confusion and figure out that the “limiting principle” that he’s looking for is that health care is different because of the problems of adverse selection and moral hazard, and I think Roberts will join the majority for two reasons: (1) I think he is conscious of the need to not have another Bush v. Gore fiasco and (2) if he’s in the majority, he gets to assign the opinion, and he’ll assign it to himself in order to get a narrow opinion that leaves open the possibility of future reductions in the scope of the Commerce Clause.

  22. 22
    wenchacha says:

    Thanks for writing this, Kay. This is a different Supreme Court. Bush v. Gore was a terrible day.

  23. 23
    Richard Fox says:

    Kay this post articulates precisely how I feel. Listening to Scalia’s discussion on broccoli–! it just infuriated me to no end. This is a very important national debate in the highest court of the United States. I don’t think I am out of bounds to expect something more intelligible, more about the law itself, and less about idiot distractions like broccoli and cornhusker– whatever the hell he was blathering on about. I could go on, but you catch my the drift I am sure.

  24. 24

    I find it interesting that a single payer system would sidestep all the constitutional problems that the current ACA bill does.

    It’s simply a matter of finding new constitutional problems. You don’t get to the top of the appellate totem pole without being able to distinguish two things that are in fact exactly the same when necessary.

  25. 25
    piratedan says:

    so in short, when Scalia was busy playing up for Faux News with the statement on whether or not he’s actually supposed to read all of this, the solicitor general should have replied:

    “Yes sir, you should. After all, it’s in your job description.”

    There are times when you can cut the noblesse oblige with a knife around here.

  26. 26
    Mike E says:

    This joke of a SCOTUS takes their kabuki very seriously–sans white face paint, they are already dressed for it.

  27. 27
    SiubhanDuinne says:

    Brilliant post, Kay. I’ve said it before, will say it again: one of the best things Cole ever did was inviting you to FP@BJ.

    And as an opera buff myself, I would love to know what opera you went to and who the soprano was and, most importantly, what your overall reaction was (besides “wonderful,” which you already told us). Could you become a fan, do you think?

  28. 28
    sylvanroad says:

    Kay, thank you for writing this. I’m a longtime lurker, probably responsible for at least a million of the hits the site gets each month. I love this blog.

    I know this is slightly OT, but I want to thank you, Kay, and the rest of the BJ gang for inspiring me to get away from the computer and actually DO something. I spent three hours yesterday going door-to-door for an OFA-sponsored voter registration drive here in Virginia, and will do it again next Saturday. I’m fired up and ready to go.

  29. 29
    Addie Pray says:

    I’m so exhausted by this whole shebang that I am also fixated on the question of… What opera? What city? I think much of ones long term feelings about opera can be set by what opera one sees first…

  30. 30
    TuiMel says:

    I will repost my thoughts from an earlier thread:

    Scalia was so full of gleeful scorn, I can see no way to take him seriously ever again. He really demeaned his own stature as a justice and hurt the court’s credibility in my eyes., i hope some day he feels comensurate mortification (not holding my breath). I do not think the Court Cons care about legacy as a liberal would define it. I fear they believe they are forging a new notion of legitimacy for SCOTUS – a new legacy based upon a departure from any / all precedents that their ideology abhors. Winners get to write history; I worry that this reality is their conceptual get-out-of-jail-free card for the havoc that might be in the wake of their disavowals of precedents.</

    Count me blue.

  31. 31
    JGabriel says:

    Kay @ Top:

    I’m either exhausted at the absolute cluelessness or disheartened by the cynicism of that statement, depending on whether Clements believes what he’s saying.

    __
    It’s cynicism. Clements knows Congress is hopelessly gridlocked and that the current Republican dominated House will never pass a health care bill. He’s counting on it.

  32. 32
    desertflower says:

    Now we know for certain why they don’t want to televise Supreme Court proceedings.The public would be mortified at the ignorance and audacity of dopes on the Right side of the Roberts Court.

  33. 33
    Steve says:

    I’ve been a dedicated Supreme Court watcher since back before law school, which was so long ago that I can remember when the Commerce Clause was unlimited! (heh) Having said that, for all my “expertise” I don’t actually have any deeper insight into the outcome of this case than anyone else, although my educated guess is something close to what burnsie says.

    I wouldn’t tell people not to be cynical but I do find that an awful lot of people seem to think cynicism is an adequate substitute for actually knowing stuff. It’s actually not. If we had had this discussion a couple years ago when the Roberts Court was reviewing the Voting Rights Act, a majority of commentors would have bet their lives that the unprincipled conservative hacks were going to strike down Section 5 for sure. But it didn’t turn out that way! The cynical answer is not always correct.

  34. 34
    Lojasmo says:

    @Davis X. Machina:

    White guy in a suit also, too. Concern trolls MUST be concerned!

  35. 35
    Patricia Kayden says:

    If the law is struck down, while I would be extremely disappointed (especially as an Obama supporter), I guess I have to accept it as the will of the American people.

    Even to this day, polls show that the majority of Americans, for one reason or the other, just do not like the Health Care Act. I’m not sure why the Obama administration hasn’t been able to sell it to the public.

    If you break down the Health Care Act into sections, Americans like those sections (i.e., covering college kids on their parents’ insurance, covering preconditions, etc.).

    I guess the Tea Party’s 2010 victory was a direct consequence of opposition to the Health Care Act. The majority rules and Republican governors elected in 2010 challenged the Act. If they are successful, perhaps President Obama can try this again (if he wins in November).

    If the Supreme Court strike the entire law down, this could rally the Democratic base. That’s the silver lining, I guess.

  36. 36
    JWL says:

    Think back just a few years, Kay.

    “Get over it (chuckle)”. Remember that advice? (Hint: “hanging chads”).

    Remember the laughs that Bush got “searching” for WMD’s at that annual press corps dinner (and floor-show)?

    Remember the day it was announced that at least $10 Billion in U.S. currency had been shipped to Iraq (on pallets), where it all disappeared into thin air? (“He who laughs last, laughs best”).

    And on, and on… no one can tell me republicans don’t have a sense of humor. You should go buy yourself one, Kay.

  37. 37
    catclub says:

    @desertflower: I think you mis-spelled mendacity.

  38. 38
    Scott says:

    @NR: In a semi-sane court, you’d probably be correct. But the current Supreme Court isn’t really sane. They won’t decide the case by any legal principles or by whatever will enrich corporate America. They’ll decide the case on the basis of “Whatever will hurt the black guy in the White House and his party.”

  39. 39
    Roger Moore says:

    @ant:

    I find it interesting that a single payer system would sidestep all the constitutional problems that the current ACA bill does.

    Until the Conservatives Radicals on the Supreme Court decided that it didn’t because SHUT UP, THAT’S WHY! The “Constitutional” problems with the current ACA bill is that the Republicans don’t like it, nothing more, nothing less.

  40. 40
    wrb says:

    @NR:

    because it brings about a massive transfer of wealth from American citizens to private corporations.

    I think you are misreading the general corporate interest. Sure the medical and insurance corporations benefit but the rest do not.

    If they only have to pay for medical care for those most useful to them- workers in 20s through 40s- and everyone else is left to bleed out on the street everything will be jolly fine for international corporations and the plutocrats.

  41. 41
    shortstop says:

    @burnspbesq: But no apology to the many who believed that Scalia was capable of ignoring Raich, and who endured your schoolyardish taunts for saying so?

    ‘Twas ever thus.

  42. 42
    WereBear says:

    And to think I used to wonder what it was like hearing the Dred Scott decision handed down; what despair, what sense of futility.

    Be careful about wondering.

  43. 43
    shortstop says:

    @wrb: Does big insurance benefit overall? The number of healthy 20-somethings (of which NR is surely one, based on samplings of his bleatings here) who will be required against their will to stop freeloading on the rest of us is far overmatched by the number of older people who have put off medical care due to having no insurance, and who will thus be quite expensive for insurers to take on. Add the bans on rescission and denial for preexisting conditions, and this isn’t the cash cow for insurers that the very naive–you are clearly not among them–think it is.

  44. 44
    wrb says:

    @shortstop:

    good points

  45. 45
    WyldPirate says:

    @Davis X. Machina:

    Eleven Republicans in Massachusetts? How did Acorn help them elect Scott Brown?

  46. 46
    Basilisc says:

    I posted this deep in an open thread a couple of days ago, so I guess it’s OK to re-post it again, deep in this thread. It’s a quote from the former Swiss Health Secretary, in the NYT Economix blog:

    We will not let people suffer and die when they need health care. The Swiss believe that in return, individuals owe it to society to make provision ahead of time for their health care when they fall seriously ill. At that point, they may not have enough money to pay for it. So we consider the health-insurance mandate to be a form of socially responsible civic conduct. In Switzerland, ‘individual freedom’ does not mean that you should be free to live irresponsibly and freeload from others, as you would put it.

    And I’m still wondering two things:
    1. Why can’t the Supreme Court handle a simple concept like “socially responsible civic conduct”?
    2. Why couldn’t anyone in the Obama administration or among the Dems in Congress make the argument as forthrightly and convincingly as this?

  47. 47
    wrb says:

    @Basilisc:

    because it brings about a massive transfer of wealth from American citizens to private corporations.

    Obama and various congress persons have made that argument repeatedly.

    Our current conservatives dismiss it. It will not persuade them.

  48. 48
    FlipYrWhig says:

    @Basilisc: They did make such an argument. Verrilli referred to social norms. Scalia scoffed.

  49. 49
    kay says:

    @Steve:

    I think “cynical” to describe the reactions of ordinary people is the wrong word.

    I mean, Jesus, how far are we going to go to protect these guys?

    I don’t know how they’re going to rule, but if ordinary voters are musing on whether they’re deciding based on vengeance, I think there was a problem with how this thing was perceived by the public who are supporters of the law.

    If they’re telling us there’s a credibility problem, why are calling THEM cynics?

  50. 50
    Baud says:

    @wrb:

    Obama and various congress persons have made that argument repeatedly.

    @FlipYrWhig:

    They did make such an argument.

    About 95% of the time, this is the correct response to questions such as “Why didn’t Obama and/or the Democrats say/do X.” Kudos.

  51. 51
    FlipYrWhig says:

    @Patricia Kayden:

    If you break down the Health Care Act into sections, Americans like those sections (i.e., covering college kids on their parents’ insurance, covering preconditions, etc.).

    The section they never test is the one according to which lazy freeloading colored folks get free health care and stick God-fearing taxpaying white folks with the bill. That’s the reason why people oppose the health care bill. Not because of its actual provisions, but because they’ve been led to think of it as billions in “welfare” that “we can’t afford.”. When they rant about liberty, they mean their liberty to keep their hard-earned money out of the hands of undesirables. The whole reason why Republicans vote Republican is because they think black people and illegal immigrants get a free ride at their expense, that Democrats like it that way and that Republicans will stop it.

  52. 52
    shortstop says:

    @kay: Yes, and how does this compare historically? Can we point to other periods during which the credibility and professionalism of the court were so widely questioned?

    That’s not a rhetorical question; I don’t know the answer, but I do know that there hasn’t been such a far-reaching skepticism of this institution in my own lifetime. Nothing remotely approaching it.

  53. 53
    HRA says:

    Thank you, Kay and thank you to all who wrote the comments. It’s never too late to be educated.

    Broccoli? Indeed, it rises to the evidently lack of class IMO.

  54. 54
    Cacti says:

    The most depressing part of the PPACA arguments for me was that Justice Ginsberg had to explain the concept of risk pooling to Sam Alito.

    Scalia looked petty. Alito looked like an ignoramus.

  55. 55
    Belafon (formerly anonevent) says:

    @ant: How would single payer sidestep the issue of the federal government forcing people to pay for their health care? If they shoot down the ACA, they are shooting down the idea that the government can force people to pay for something.

    The only possible thing I see is making Medicare open and telling companies they have to offer it as a choice.

  56. 56
    Ruckus says:

    @burnspbesq:
    WOW. Just wow.

    And I was hoping that you’d be right at 7-2. Not believing it, just hoping. Even somewhat defended you in a previous post. OK defend may be too strong a word. Still, when one of the staunch defenders on the rule of law is so sacrosanct about it’s non-demise caves even a little, that’s a big deal.

    Of course this could be an April fools joke. I could go either way.

  57. 57
    wrb says:

    @FlipYrWhig:

    From the National Catholic Reporter:

    http://ncronline.org/blogs/ncr.....eology-101

    by Maureen Fiedler on Mar. 29, 2012 NCR Today
    I have been following the arguments about the health care reform law before the Supreme Court this week. I’m appalled by a lot of the argumentation against the bill, but Justice Antonin Scalia’s comments are the ones that led me to talk back to my radio with, “Are you kidding? Justice Scalia, where did YOU study moral theology?”
    His first comment that caused a jolt came in a discussion of the reason for the individual mandate in the law. The lawyer arguing the case was laying out what most of us understand — health insurance is a “risk pool.” We need healthy people as well as sick people in the pool to cover the cost of those who are sick or injured. Since many healthy, often young, people don’t buy insurance, the rest of us pick up the cost if they are in an accident or fall prey to an unexpected illness. That’s the reason for the mandate in the law — to spread the risk.
    In explaining this, the lawyer mentioned that doctors and emergency rooms have both a moral and a legal obligation to treat people who turn up without insurance — for example, after a car accident or a heart attack. In response, Justice Scalia questioned the very idea of this obligation: “Well, don’t obligate yourself to that,” he said. In other words, let injured people die in an emergency room? When someone has a heart attack, check their insurance card, and if you can’t find it, don’t treat them?
    Isn’t this the justice who thinks he is staunchly pro-life? Who votes to overturn Roe v. Wade at every opportunity? Well, that description just went out the window.
    Then, when the discussion moved to the cost of insurance for sick people (for example, those with pre-existing conditions) and healthy people, Justice Scalia said blithely: “You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not require them to sell it to him at a rate that he sells it to healthy people.”
    In other words, if you have a pre-existing condition — say, diabetes or a history of cancer — it’s OK to deny you, or simply charge you ridiculously high rates. If you’re sick, too bad. You’re on your own.
    Justice Scalia claims to be a Catholic, but I seriously wonder if he ever studied moral theology. Whatever happened to the “common good”? What happened to our duty to care for one another and share burdens?
    Now, before we have a flood of responses on this, I am well aware that these Supreme Court arguments were supposed to be about the constitutionality — not the “morality” — of the health care law. But the Constitution was written in order to “form a more perfect union, establish justice” and “promote the general welfare.” In these phrases are echoes of the “common good.” They express a sense of community concern, suggesting that we should be looking out for one another and fashioning our laws accordingly.
    __
    Maybe Justice Scalia should do Constitutional Law over again, too, along with Moral Theology 101

    __

    GENERAL VERRILLI: No. It’s because you’re going — in the health care market, you’re going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we’ve obligated ourselves so that people get health care.
    __
    JUSTICE SCALIA: Well, don’t obligate yourself to that. Why — you know?
    __
    GENERAL VERRILLI: Well, I can’t imagine that that — that the Commerce Clause would –would forbid Congress from taking into account this deeply embedded social norm.
    __
    JUSTICE SCALIA: You — you could do it.

  58. 58
    quannlace says:

    I hope Kay comes back ’cause I want to know which opera it was, too.

  59. 59
    kay says:

    @Cacti:

    My sister told me there was an absolutely beautiful amicus written by “insurance economists” so I guess Alito didn’t avail himself of all that work they put into it.

    I myself was impressed that Scalia managed to get supply and demand backwards.

    We could have a thread on just that: “at what point did you bash your head on your desk?”

  60. 60
    WyldPirate says:

    @Basilisc:

    And I’m still wondering two things:
    1. Why can’t the Supreme Court handle a simple concept like “socially responsible civic conduct”?
    2. Why couldn’t anyone in the Obama administration or among the Dems in Congress make the argument as forthrightly and convincingly as this?

    On point 1, civic responsibility is not a function of “freedumb” in the fucked up philosophy of conservatism. And shut-up, also too.

    On point 2, Obama’s messaging apparatus has sucked hairy, wet dog testicles since he took office. It has recently tightened up. I would love to see an explanation as to why this happened this way.

  61. 61
    wrb says:

    @FlipYrWhig:

    The section they never test is the one according to which lazy freeloading colored folks get free health care and stick God-fearing taxpaying white folks with the bill.

    Exactly tight.

    Regardless of what the law says people are convinced it means paying for unlimited health care for for a limitless tide of illegal immigrants who will sweep over the border to get free health care.

    Universal universal health care and a liberal immigration policy may prove mutually exclusive- politically.

  62. 62
    pat says:

    I want to know too what opera and where. We are in Graz, Austria, which has a first-class opera company, and we saw the premier of Donizetti’s Maria Stuarda a couple of days ago. About Mary Queen of Scots and Elizabeth I.

    And may I say, I am so glad that in the US we only have to study a couple of hundred years of history. ;-)

  63. 63
    Steve says:

    @kay: I’m not talking about ordinary people. I’m talking about the precise opposite of ordinary people, the BJ commentariat!

  64. 64
    kay says:

    @quannlace:

    It was Macbeth, which is Verdi. I love music but I don’t know a thing about it, so I’m a good audience.

    I’m completely open to any of it.

    I was told that I can’t go to a “small house” now because I went to a big house with perfect sound, so now I’m all spoiled, but I’ll happily try it again.

  65. 65
    pat says:

    My favorite opera is still Der Rosencavelier, by Strauss. If you ever have a chance to see it, do. Lovely music and a touching story.

    edit: not that I wish to hijack the thread.

  66. 66
    HRA says:

    On the hunt for more education, I found this article.

    http://www.washingtonpost.com/.....story.html

  67. 67
    Yutsano says:

    @kay:

    I was told that I can’t go to a “small house” now because I went to a big house with perfect sound, so now I’m all spoiled, but I’ll happily try it again.

    Shit like this is why I hate opera snobs. Most of the venues for opera at its height had to account for the fact that there were no volume enhancing devices at the time, which is why Austria and most of Europe is full of small halls. It’s why Europe also developed a body of musical literature precisely called “chamber music”. Because the human voice, even a highly trained soprano, can only carry so far. If you liked the performance go again Kay, and ignore the size of the venue.

  68. 68
    eemom says:

    Since, as is typically the case on this blog, Kay presents an intelligent, reasoned, and thoughtful take on the situation in notable contrast to the clueless rants of Cole and DougJ, I will confess that I too am…..nervous about what’s going to happen here.

    That said, I will reiterate a couple of observations I made over the last week, which, I continue to believe, overcome the doubts raised by the oral arguments:

    1. While depression and cynicism may be justified, the fact remains that the conservative justices can’t be glibly dismissed — as they so often are here — as just another set of Koch puppets. They are, in a very real sense, above politics: they don’t need money, and they don’t need votes. They have a lifetime gig in the ultimate ivory tower—they don’t need ANYTHING from ANYBODY.

    They DO, on the other hand, have a deeply vested interest in their legacies, and in NOT having the Court as an institution, not to mention themselves as individual Justices, perceived as having rendered a politically motivated decision on a matter as important as this.

    2. EVERY path to unconstitutionality knocks out a pillar of existing law that causes the entire edifice to come crashing down.

    And I will add, in further response to the hysteria over the oral arguments:

    3. Another thing that some non-lawyers appear to misunderstand is that the questioning by the judges is NOT the equivalent of a speech by a politician. They are NOT sending out “dog whistles.” Not a single word of what they uttered commits them to ANYTHING.

    What they were doing, in asking the questions that freaked everybody out, is what they’re entitled to do, and exactly what oral argument is supposed to be for: playing out the implications and consequences of the arguments before them, following the hypotheticals to wherever they might lead.

    Now granted — and this is what freaked out actual informed commentators like Fried — the arguments they were toying with in this particular instance are off the wall, bullshit arguments which they should have dismissed with the back of their hand — BUT the fact that they were willing to engage them, I think, can be explained by (a) the enormous amount of attention focused on this case, (b) yes, because Scalia et al ARE right wingers, a perceived need to take seriously the arguments of their own side, even though they are ridiculous, and ( c) yes, Scalia is an arrogant dick who doesn’t give a shit about the real world implications of anything he says or does.

    Still: NONE of that affects how they will actually rule.

    So. That was kind of long, but the bottom line is I’m still with Burnsy at 6-3.

  69. 69
    kay says:

    @Steve:

    We should be grateful we’re not Kniec, I guess.

    If he’s still soldiering along with his daily disappointment with conservatives, I guess we can keep going too.

    At what point does he lose his shit and start screaming ” they’re all hacks!”

  70. 70
    Basilisc says:

    @Baud:

    Well, the friends & family I showed that quote to were impressed. They hadn’t heard the argument put this way before. I guess it’s familiar in the rarefied ranks of the health care commentariat and the Supreme Court bar, but it doesn’t seem to have made it to the rest of the country, including (unfortunately) voters.

  71. 71
    Baud says:

    @Basilisc:

    They hadn’t heard the argument put this way before.

    Most people don’t hear most arguments that Democrats make–it doesn’t necessarily mean that the Democrats aren’t making them.

  72. 72
    pat says:

    Have to post again about the size of the house. The Oper Haus in Graz is probably from the beginning of the last century, and I don’t know if it is “small” or not, since I am unfamiliar with other opera venues, but that soprano and mezzosoprano were really belting it out, without audio enhancements. And we were sitting in the “galerie”, the highest seats.

    OTOH, air conditioning is pretty rare, and it is hot… I don’t know how the singers manage it with those heavy costumes.

    OTOH, the scenery (buenenbild, I can’t think of the English word) included men naked except for a tiny g-string, lying on the stage to represent the spirits or something. They were probably not too hot…. but some of us wondered if maybe something had… you know, slipped out of the g-string.

  73. 73
    Ruckus says:

    @eemom:
    And as I said above, wow.

    Burnsy has changed from 7-2 to 6-3. What is the cause of this epic change? With too much more introspection may we see 5-4 in a week or so? How much longer after that would we be at 5-4 against? The tide is running and that I never expected. Are those of us who are still barely optimists(hoping you are correct but not getting our hopes up) winning you over?

  74. 74
    eemom says:

    oh — and in response to the snide questions about what we “optimists” are going to do or say if we’re proved wrong and the law goes down — the answer, for my part at least, is that listening to a bunch of idiots on a blog say “I told you so” is going to be the least of my worries. I’ll be too busy grieving over the demise of the republic.

  75. 75
    OzoneR says:

    @Patricia Kayden:

    I’m not sure why the Obama administration hasn’t been able to sell it to the public.

    I’m still not sure there was any way to effectively sell it. When it comes to “overhauls” and “reforms,” this country tends to be gun shy and leery of any huge overhaul bills, just as they were when Bush tried to privatize S.S. and overhaul immigration. It’s also why we’ll never have a flat tax.

    HCR was probably much better done piecemeal, everything is in America. The public doesn’t have the mental capacity to absorb anything huge, so they just mistrust it and turn against it.

  76. 76
    eemom says:

    @Ruckus:

    No. I just agree with Burnsy that Scalia may prove to be a bigger, glibber, and more slippery asshole than we thought.

    That said, it STILL may be 7-2, for all the reasons I outlined above.

  77. 77
    OzoneR says:

    @Basilisc:

    Well, the friends & family I showed that quote to were impressed.

    In my neck of the word, opposition, people I told that to responded with the “You don’t know what’s best for me and neither does Obama” argument.

    It’s a logical argument, and probably one most Americans would agree with (if made by someone who isn’t a political lightning rod), but there’s still going to be a lot of those “leave me alone” people, the same ones who want to drive Ford F-150s through Brooklyn and want low gas prices at the same time and will vote for whoever promises them that.

  78. 78
    Pavonis says:

    @FlipYrWhig 50

    Anecdotally, this sound a true to me.

    A friend of a friend I knew at college said he became a Republican when he saw a black man buying soda at the store using food stamps. This person got so angry that HIS tax dollars were being used by the black man to buy junk food that he became a solid Republican. It doesn’t matter if the Democrats are better for the economy or anything – it’s all about spite (and racism).

  79. 79
    slag says:

    Excellent post, kay. Hits all the right notes.

    …Speaking of which, loved Cosi Fan Tutte and fell asleep during Carmen. So, I don’t think I’m a big opera fan. Melodrama meh.

  80. 80
    OzoneR says:

    @Basilisc:

    but it doesn’t seem to have made it to the rest of the country, including (unfortunately) voters.

    There are giant swaths of the country, including where my family is in Indiana, where the only means of information is Fox News.

  81. 81
    SiubhanDuinne says:

    @pat: (and others too numerous to scroll back and find):

    I don’t want to hijack the thread either, but it seems there are quite a few of us who are opera and classical music lovers, and I would love it if occasionally we could have a dedicated thread (or ‘jack one of the usual-type music threads) to the kinds of entertainments more frequently encountered at the Met than MTV.

    How about it, front-pagers?

  82. 82
    FlipYrWhig says:

    @eemom: I’m feeling like Kennedy and Roberts would rather be known as the ones who came up with the proper baby-splitting protocol by which an insurance mandate is constitutional but a broccoli mandate isn’t — rather than as part of a bloc that invalidated a century of understanding of the commerce clause. But IANAL.

  83. 83
    Pavonis says:

    @Ruckus

    No, time is on the side of the Pro-PPACA/Obamacare faction now. The antis have a single argument – that charging a fee for not buying health insurance is oppression while collecting a tax and having a deduction for the same thing is a-okay. The pro faction has many arguments based on precedent, the Constitution (general welfare + commerce clause), institutional self-interest, and the default assumption that laws Congress passes are already Constitutional. If the vote on Friday indeed went 4-5 against, I trust Sotomayor et al. to try hard to convince Roberts and Kennedy to flip.

  84. 84
    OzoneR says:

    @Pavonis:

    A friend of a friend I knew at college said he became a Republican when he saw a black man buying soda at the store using food stamps.

    My aunt has repeadily screamed about some woman she knows whose an illegal immigrant and getting round the clock care from Medicaid for panic attacks (is it true, I doubt it), and also some man she knew who had 25 kids with 10 women, including one born with his organs outside his body. Her complaint “We’re paying for all that”

    So she votes Republican, despite the fact she is pissed about Citizens United and wars. Still votes Republicans, cause of panic lady and black man with 25 kids.

    It’s resentment, and progressives have no plan to counter that.

  85. 85
    FlipYrWhig says:

    @Pavonis: Yup. The woman that cuts my hair had a whole just-so story about a woman at the grocery check-out line using food stamps but whose nails were done up all fancy. But, on the other hand, she said, rich people who work hard shouldn’t be penalized by higher taxes. I tried to explain that the problem of people getting too many benefits from the government was dwarfed by the problem of people getting too few and the problem of already-rich people gaming the system from above. I didn’t have any luck getting it to stick.

  86. 86
    patrick II says:

    @burnspbesq:

    Welcome to finally figuring out Scalia. Now you are left to guess on the tea leave reading of Kennedy like the rest of us.

  87. 87
    MikeJ says:

    @eemom:

    They DO, on the other hand, have a deeply vested interest in their legacies, and in NOT having the Court as an institution, not to mention themselves as individual Justices, perceived as having rendered a politically motivated decision on a matter as important as this.

    Bush v Gore.

    Their legacy is shit.

  88. 88
    Yutsano says:

    @OzoneR: So we suffer from the fact that your aunt is an idiot. Once again this is why we can’t have nice things.

  89. 89
    kay says:

    @eemom:

    If you’re right we’ll celebrated with a front page post for you and OO and Steve and Burns.

    If you’re all wrong I’ll be depressed and not reading political blogs for a few days.

    I think it’s brave to call it, so anyone who did won’t get any shit from me.

  90. 90

    @WyldPirate: Hawt daughter, hawt truck, and 200 hours of free campaign commercials on Dennis and Callahan.

  91. 91
    OzoneR says:

    @Yutsano:

    So we suffer from the fact that your aunt is an idiot.

    My aunt, most of the rest of my family, the States of Texas and Florida, and about 50 million other people.

    We can’t have nice things, but we sure try.

  92. 92
    gogol's wife says:

    @SiubhanDuinne:

    Yeah, whatever happened to John’s Beethoven mania?

  93. 93
    Yutsano says:

    @Davis X. Machina: And a terrible candidate running against Cosmo Brown. Not that the rest didn’t factor in either, but Coakley was just God-awful.

  94. 94
    FlipYrWhig says:

    @OzoneR: That’s the thing. For those complaints to work, you have to see yourself as someone who’s always getting reamed by the government, never benefiting from it. And millions of fairly poorly off people fall into that view. And I’m confident it’s because they imagine legions of surly, lazy black and brown people, not exceptional cases but typical cases, laughing their asses off at the stupid white people they’re fleecing. Somewhere out there a black person or an illegal immigrant is living it up on their dime. Anytime we think about what to do in/for/through American politics, we have to keep in mind that there are millions and millions of people who see the world this way, and they vote based on it, even more so than they vote on their own sheer self-interest. That’s why all the talk of “framing” and “bully pulpits” and all that is so overblown. Making headway with these millions of people is more than a clever phrase can accomplish.

  95. 95
    OzoneR says:

    @Yutsano:

    And a terrible candidate running against Cosmo Brown. Not that the rest didn’t factor in either, but Coakley was just God-awful.

    who is apparently the most popular politician in Massachusetts now.

  96. 96
    gogol's wife says:

    Oh, and by the way, Scalia gave a speech where I work about three weeks ago. I did not attend, but it is said that when asked about Bush v. Gore, he said, “Get over it,” and got a big laugh.

  97. 97
    OzoneR says:

    @FlipYrWhig:

    That’s why all the talk of “framing” and “bully pulpits” and all that is so overblown. Making headway with these millions of people is more than a clever phrase can accomplish.

    Also, why I rail against the “bully pulpit” argument…making headway with these people is gonna take someone other than a black guy who grew up on an island 3,000 miles from anywhere.

    Lets be serious about that.

    Fact is, Obama cannot reach them, they won’t listen to him. It’s going to take someone they can relate to.

  98. 98
    Steve says:

    @kay: I don’t look down on people who don’t have legal training, because frankly, they’re probably doing something more productive with their lives than I am. But the annoying thing is, most of the time when people don’t know a lot about something they recognize that they don’t know a lot. The discussion on this issue is akin to betting the Kentucky Derby with your cousin who picks the horse with the coolest name and then says, “See, I told you so!” I freely admit that if I make a buck it’s sheer luck, but why do so many people who have spent less than 5 minutes of their life understanding the Supreme Court insist that they have it all figured out?

  99. 99
    FlipYrWhig says:

    @MikeJ: Roberts and Alito weren’t there for Bush v. Gore. As Chief Justice, Roberts might actually care about the way The Roberts Court is remembered, doctrinally. At least that’s what a lot of people seem to be hoping…

  100. 100
    FlipYrWhig says:

    @OzoneR: I don’t think any amount of “relating” is going to get it done. We’re going to have to wait for the Southern Strategy generation to die off. And even then the complaints about black freeloaders might well just morph into complaints about Mexican freeloaders.

  101. 101
    millekat says:

    Welcome, Kay, and thanks for saying what is on so many minds.

    I’m an opera lover, too, but my Rule No 1 about Opera is like the Fight Club: One never talks about the Opera.

    Too many people out there to get giggly or patronizing when you address what to us is stone-cold serious (sound familiar?), and in my old age I am stingy of wasting my beath. :~)

    I do sometimes ponder the paradox of opera, how such a clear-headed, cynical and (often) political art form manages to survive, often on the patronage of the one percent. What do they get from it? Can they (can Scalia) possibly see the same story? Do they simply identify themselves with the struggling heroes, and not see the sneering villains all over the landscape?

    Macbeth is not very typical in that regard.

    But good luck to you and hope the page that just opened leads you to other adventures.

  102. 102

    […] Juice recounts the McCain-Feingold interview on NPR from Friday regarding money in politics: The McCain-Feingold […]

  103. 103
    shortstop says:

    @Davis X. Machina: Er, there’s one person’s physical hawtness you’re overlooking. Yes, now they know he’s ugly on the inside.

  104. 104
    Tonal Crow says:

    @burnspbesq: I give P ~= 0.7 that the mandate’s upheld, and if it is, P ~= 0.9 that it’s upheld as a valid exercise of the Tax-and-Spend Clause.

    Everyone agrees that Congress could have instituted a new tax (= a mandatory requirement that everyone pay money) and used it to buy insurance for everyone.

    Instead, Congress gave everyone an option (= more freedom) of either buying a qualifying policy from an insurer of her choice, or paying a tax penalty. That’s effectively a tax that each person gets to decide how to pay: pay it directly to an insurer and get coverage in exchange, or pay a smaller tax penalty to the government and get only indirect benefits (e.g., healthier population = less chance of catching infectious disease yourself) in exchange.

    I see nothing in the tax-and-spend clause that prohibits Congress from structuring a tax in this manner. How a tax is computed, when it’s assessed, and where and how you pay it, have always been within Congress’s discretion as long as the terms don’t violate equal protection, due process, etc. And I don’t see any such violations here.

    This tax might appear novel, but is really only a freedom-enhanced version of an ordinary tax.

  105. 105
    OzoneR says:

    @FlipYrWhig:

    We’re going to have to wait for the Southern Strategy generation to die off.

    don’t think it ever will until white people are an irrelevant political group.

  106. 106
    eemom says:

    @FlipYrWhig:

    And in fact — as I think it was Omnes who pointed out — Bush v. Gore, and maybe Citizens United as well, is all the more reason for them to be worried about their legacy. 3 strikes, etc.

  107. 107
    pepper says:

    despite all the idiocy of what went on at the oral arguments, i think the mandate and the rest of the ACA survives. i don’t think this court wants to open up every commerce clause ruling for the last 50 years. the civil rights act could be next. i don’t think this court wants to roll back medicaid either. i don’t think they want to be remembered this way (way more faith than evidence goes into this statement). since the mandate is a total sop to insurance companies and this court is pro-business, i think they are smart enough to know what it means to roll back the mandate, so they won’t do it. i may be drinking a whole lot of funny tasting koolaid, but i remain optimistic the ACA survives.

  108. 108
    Arclite says:

    Great, great post Kay. Thank you.

    Also, too. I nominate Kay for SCOTUS.

  109. 109
    shortstop says:

    @Steve:

    But the annoying thing is, most of the time when people don’t know a lot about something they recognize that they don’t know a lot.

    Do you patronize an alternate Balloon Juice? I see the words you’re typing, but they don’t seem to refer to anything I know.

    Look, this just bugs you because you’re a lawyer and you notice it more. People spout off here on every imaginable issue about which they know nothing. Sometimes they get called on it by experts in the field in question, sometimes not — but no purported* expert yells louder than the lawyers when the layfolk weigh in on their own field.

    *I had to put that in because of the significant variation in the quality of lawyering on display around here. We are graced with some very bright attorneys as well as some some obvious also-rans.

  110. 110
    Ruckus says:

    @Pavonis:
    Just in case no one had figured before IANAL. There are a lot of things I am not. I almost always defer to those with a better working knowledge of whatever for just that reason. In this case I don’t know how any one’s working knowledge is a reliable gauge. I(and I’m pretty sure a number of others) am saying is that we have about zero confidence that the desired normal will have any affect, in this case. For me it is precisely because it is a landmark political case that I am unsure and lack any confidence. Are 3 or 4 people who answer to no one going to vote as their training and experience says they will, or are their politics going to overrule? I don’t think anyone knows with any certainty.

  111. 111
    Tally says:

    The ignorance from many here on the ACA is astounding.

    The ACA is the END of the Health Cartels, which is why they’re spending/donating to the GOP so much to repeal it:

    Get aware:

  112. 112
    vernon says:

    @eemom:

    In a moment I’ll return to being a seething, bile-spewing asshole, my current departure from that charming persona being the closest I’ll ever come to eating crow; P.S.: Fuck you.

    Shorter eemom^^

  113. 113
    kay says:

    @Steve:

    I agree. I get upset with it in my practice because I’m in front of the same 3 judges, day after day. I really DO know more than my clients, so much so that I could move my mouth along with one judge; he’s that predictable. My clients like to tell me how they’ll rule, they have all these elaborate theories.

    Health insurance stocks rose the day of the argument and people who hate the law think that meant “upheld” but that’s their filter.

    I think it’s just as likely to mean traders thought
    the whole thing was going down.

  114. 114
    eemom says:

    @Pavonis:

    If the vote on Friday indeed went 4-5 against, I trust Sotomayor et al. to try hard to convince Roberts and Kennedy to flip.

    Yes, and this is yet another reason why the oral argument, and especially the vastly overblown “performance” deficiencies of SG Verrilli, proves nothing.

    Of one good thing we can be confident: Sotomayor et al will indeed pound the proverbial fear of God into the skulls of Kennedy and Roberts.

    As I’ve mentioned, I had the honor of being present at a Q&A which Justice Kagan recently held for her fellow alums of Hunter College High School, and one thing she said was that they spend a lot of time talking about stuff.

  115. 115
    ericblair says:

    @pepper:

    . i don’t think this court wants to open up every commerce clause ruling for the last 50 years. the civil rights act could be next. i don’t think this court wants to roll back medicaid either. i don’t think they want to be remembered this way (way more faith than evidence goes into this statement).

    If it goes that far, somebody’s going to tell them that nine dudes and dudettes in robes can only go so far in arbitrarily tossing out the whole of American law, precedent, and the will of the electorate, before somebody sends a few US Marshals to drag them off to Gitmo while Congress sits on their hands and looks the other way. Welcome to the Second Republic, whatever it would turn out to be.

  116. 116
    bemused senior says:

    @OzoneR: The ACA is piecemeal. This is why that vaunted poll result, that a majority doesn’t like ACA, includes a large chunk who wanted it to go farther. That is the reason the troll above who thinks the supreme court would be right to strike down this law is full of, let’s say, baloney.

  117. 117
    OzoneR says:

    @bemused senior:

    that a majority doesn’t like ACA, includes a large chunk who wanted it to go farther.

    That doesn’t explain the plurality and sometimes majority that want it repealed.

    By piecemeal, i think the best thing we could’ve done is put the popular provisions up for a vote one by one; public option, ban on recession, exchanges, then the mandate, all separate bills that can be debated and discussed as separate issues.

    You have to walk the American people through.

  118. 118
    efgoldman says:

    @HRA:

    On the hunt for more education, I found this article.

    Perlstein is always brilliant and concise.
    But almost 3800 comments! I decided not to dive in.

  119. 119
    shortstop says:

    @OzoneR: And then when the mandate was resoundingly defeated, how would you finance the rest?

  120. 120
    OzoneR says:

    @shortstop:

    And then when the mandate was resoundingly defeated, how would you finance the rest?

    How do you know it would be defeated?

  121. 121
    wrb says:

    That doesn’t explain the plurality and sometimes majority that want it repealed.

    I think it may. You read the opinions in here periodically and anytime visiting FDL:

    – It is a sell out to the insurance companies
    – It does nothing good
    – If it is overturned a single payer or public option will somehow result- “congress will have no choice.”

  122. 122
    bemused senior says:

    Btw it’s late in the thread, but you might like to share this book:

    http://www.amazon.com/Health-C.....0809053977

    … a comic book about ACA by Jonathon Gruber, MIT health care economist.

  123. 123

    @eemom: Both Houses of Congress, the White House, and the Supreme Court — the next president will get three appointments — is worth paying any price to get.

    So the institution is ruined — so what, it’ll eventually recover.

    But we’re talking being able to do it all. Write the tax law. Drive the monetary-policy bus. Determine the regulatory environment. Make the executive appointments. Run what is still the world’s largest economy without let or hindrance.

    And via further court appointments — right into the vacancies Obama’s team hs been loath or unable to fill — there’s every expectation you can make it stick for a generation, even if you can’t keep winning elections (with a hand-crafted electorate and no spending restraints).

    Weighed in the balance, the Supreme Court’s public image doesn’t seem like a big deal.

    They should have been able to lock it all down after Iraq, and reduce the Dems to a irrelevant rump with their own active connivance. The Bushies fucked it all up.

    And now this Mulligan drops into their lap.

    For a theory they’re going to let this one slide?

  124. 124
    OzoneR says:

    @wrb: The percentage of Americans represented by FDL is too small for there to be a relevant fraction.

    If it is overturned a single payer or public option will somehow result- “congress will have no choice.”

    This is so stupid, if SCOTUS overturns ACA for political reasons, why wouldn’t they overturn single payer or a public option too and why would “Congress” pass such a plan since Congress is GOP controlled?

  125. 125
    wrb says:

    @OzoneR:

    This is so stupid

    Well, yes

  126. 126
    wrb says:

    @OzoneR:

    The percentage of Americans represented by FDL is too small for there to be a relevant fraction.

    The penetration of such opinions into the liberal internet has been deep, it isn’t restricted to FDL.

    I took a look at the top rated comments to the excellent Pearlstein article linked above. Here is the second

    Just because the court reaches a decision with which you do not agree does not mean it is partisan. Even the Solicitor General admitted that the health care mandate was unprecedented under the commerce clause and tried to justify it by saying health care was “unique.” The fact is the same result can be reached by constitutional means. There is no reason to adopt a questionable constitutional remedy when unquestionable constitutional remedies exist. Obamacare is a sellout to all the insurance companies, big drug companies and other big entities. Once the government can compel you to purchase a product, determine the contents of that product, and determine the seller of that product, how long do you think it will take for the sellers to completely run the system – particularly after Citizens United?

  127. 127
    debg says:

    Beautiful post, kay.

  128. 128
    eemom says:

    @Davis X. Machina:

    WHAT makes you think that striking down ACA is going to help them accomplish any of that?

    Just to pluck a single example, it’s going to help Romney — you know, the Romneycare Romney — how, exactly?

  129. 129
    Karmakin says:

    A couple of things.

    First, I respectfully (I’m not part of the pie fights) disagree with you, eemom, on each of the points you’ve given. I think that the only “legacy” they care about is the legacy in the eyes of the right wing. Second, I think that the side effect of being “conservative” with their decisions is making things as small and neatly carved as possible.

    I’m expecting it to be struck down 5-4 with a majority opinion that states that this decision is a special unique snowflake that’s not to be taken as any sort of precedent towards anything else. Just like Bush v. Gore (If B v. Gore were taken as precedent it would overturn most of the elections nationwide..or at least ENOUGH of them) and now that I think about it, Citizens United (Precedent would strip ALL limits on money going to politics, although I’ll admit legally this is a lot more of a leap than Bush v. Gore)

    I’m expecting closer to the former than the latter on this.

    @Wyld: Obama shares the same problem as a lot of progressives. He’s a patriot. He talks like the electorate is consisting of mature, intelligent, patriotic, caring individuals who want to do the right thing. When in reality the electorate is consisting of immature, dumb, self-serving, hateful people…ESPECIALLY swing and independent voters. They’re the WORST in terms of these things.

    That’s why he communicates like he does and it’s why it doesn’t work. Doesn’t mean there’s a good alternative, unfortunately.

    And I forget who else I’m responding to, but I agree with the messaging regarding the health care plan. The big sticking point is “undesirables” getting the benefits too, and that’s where it falls apart. But make no mistake, it’s not just race. I would argue that religion…be it a different group/sect or increasingly so a divide between theists and atheists that is pushing these things more and more now.

  130. 130
    Donut says:

    @Steve:

    Thanks for the perspective in this post. Valuable, and delivered sans condescension!

    I’ve felt like people’s paranoia about the health care law and what SCOTUS might do is carryover from general mistrust of and deep cynicism towards the elites in D.C. I have also found myself from time to time feeling worried about a complete rejection of the law, so I’m definitely not immune to it, either.

    I mean, the quick takeaway for me is that people who are feeling negative about this are not coming from an irrational place. We are all sort of generally tired of our institutions letting us down. People’s fears are not at all misplaced, even if those fears do end up being overblown when the dust settles

  131. 131
    NR says:

    @wrb: There is no significant employer mandate in the ACA. Corporations aren’t going to be the ones paying the health insurance bills. People are.

    And the rest of the corporations also benefit from the precedent that will be set. If the government can force you to give money to private corporations for health insurance, they can force you to give money to private corporations for other things, too. Once the ACA is upheld, corporations will line up to get Congress to pass more mandated corporate services. And the Democrats will no doubt be happy to accommodate them.

  132. 132
    wrb says:

    @NR:

    Thanks

  133. 133
    David Koch says:

    Citizens United was good decision.

    Why do so-called “liberals” criticize it?

    It was enthusiastically supported by perhaps the leading constitutional scholar of our time, none other than Glenn Greenwald. If Glenn says Scalia is right, then Scalia must be right.

  134. 134
    Tonal Crow says:

    @NR:

    And the rest of the corporations also benefit from the precedent that will be set. If the government can force you to give money to private corporations for health insurance, they can force you to give money to private corporations for other things, too.

    The government has forced citizens to give money to private corporations ever since its founding. It takes a percentage of our wealth by force, and uses it to buy every kind of product, service, intangible, and imaginable, most of which we never see or even learn about, and some of which some of us vehemently oppose.

    The power to do this is called “taxation”.

    And guess what? Corporations have been “lined up to get Congress to pass more mandated corporate services” ever since corporations and Congress have existed.

    The mandate is nothing new. My only concern is that we have to guarantee that affordable coverage is available. If it’s not, the mandate could become effectively a confiscatory tax. But that can already happen with any other tax, so this concern isn’t new, either. ETA: As usual, we have to ride herd on our representatives to keep them from doing stupid things.

  135. 135
    David Koch says:

    @Clime Acts: I can’t believe, you, of all people, support a corporatist bill like ACA?

    This is frightening!

    Krugman, Greenwald, Olbermann, Atrios, and now Clime Acts support ACA.

    Obama’s gangsta thugs in Chicago sure know how to pressure even the brightest of liberal lights into supporting him.

    Thank god Grover Norquist and Scalia are fighting the corporatist.

  136. 136
    WyldPirate says:

    @Davis X. Machina:
    Well, if that was all it took to sway a huge Dem advantage, then mass. Has a bunch of fence-sitting Dems.

  137. 137
    David Koch says:

    @eemom:

    I had the honor of being present at a Q&A which Justice Kagan

    How can you say it was an honor to meet the first female Dean of Harvard law who is also the first female Solicitor General in US history, when legal giant, Glenn Greenwald said she’s Harriet Miers?

  138. 138
    SiubhanDuinne says:

    @gogol’s wife:

    I was wondering the same just a few days ago.

    Moar Beethoven, plz.

  139. 139
    wrb says:

    @SiubhanDuinne:

    After the just announced discovery of the complete score to Beethoven’s 10th symphony (in NYC of all places) it would seem that there is a lot to talk about.

  140. 140
    burnspbesq says:

    @Ruckus:

    Still, when one of the staunch defenders on the rule of law is so sacrosanct about it’s non-demise caves even a little, that’s a big deal.

    Can’t ignore the evidence. Fat Tony said what he said.

  141. 141
    FlipYrWhig says:

    @David Koch: Oh, yeah, I totally forgot about that. My favorite leftier than thou blogosphere tempest in a teapot was about how David Paterson sold out liberals by picking corporatist Kirsten Gillibrand over liberal stalwart Caroline Kennedy.

  142. 142
    befuggled says:

    @wrb: Goddamn it. I forgot what day it was.

  143. 143
    wrb says:

    @befuggled:

    Oh, thank you sincerely.

    I dearly hoped to get someone.

  144. 144
    vernon says:

    @David Koch:

    How can you say it was an honor to meet the first female Dean of Harvard law who is also the first female Solicitor General in US history, when legal giant, Glenn Greenwald said she’s Harriet Miers?

    followed up by

    burnspbesq blah blah blah

    …?? Dear Balloon Juice: Did you really have to let these assholes take over your commentariat? I know all good things come to an end, but in the grand scheme of things you were barely getting started! Ah well. It’s hard to escape the moderate wing of the GOP Donk. Surtur has gone & we are to follow. See ya!!

  145. 145
    priscianusjr says:

    @eemom:

    Still: NONE of that affects how they will actually rule

    I agree with your approach. No need to get our knickers in a twist just yet.

  146. 146
    priscianusjr says:

    @FlipYrWhig:That’s the reason why people oppose the health care bill.

    Flip, I think you and PAtricia Kayden and a lot of other people need to read this article, Forty-four percent favor the law, while another 21% oppose it BECAUSE IT DOESN’T GO FAR ENOUGH. :
    http://www.reuters.com/article.....FA20120328

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