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.