More Pearl Clutching from Right Wing Elites

I suppose we should expect a few more months of this:

When the incoming Chief Justice John G. Roberts Jr. came before the Senate for confirmation seven years ago, President Reagan’s solicitor general gave him a warm endorsement as a “careful, modest” judge.

“He’s not a man on a mission,” Harvard Law professor Charles Fried testified, adding that Roberts was not likely “to embark on constitutional adventures.”

But two years ago, the Roberts-led Supreme Court struck down the federal and state laws that for a century had barred corporations and unions from pouring money into election campaigns.

***

After the healthcare arguments, Fried was among those who worried aloud about the prospect of the Roberts court embarking on a new era of judicial activism.

If the court were to invalidate the healthcare law, “It would be more problematic than Bush v. Gore,” Fried said in an interview, referring to the case that decided the 2000 presidential race. “It would be plainly at odds with precedent, and plainly in conflict with what several of the justices have said before.”

Look- there is no way of knowing how the Court will eventually rule. None. But what is troubling to many is that it is even up in the air at all, considering the general consensus among our legal elites is that this a no-brainer and of course it is Constitutional (.pdf). Here’s the overwhelming opinion from everyone not wearing a tri-corner hat and a “Don’t Tread On Me” t-shirt with two pistols tucked into the waist band of their depends and a pocket Constitution in the bucket of their electric scooter:

When Congress passed legislation requiring nearly all Americans to obtain health insurance, Randy E. Barnett, a passionate libertarian who teaches law at Georgetown, argued that the bill was unconstitutional. Many of his colleagues, on both the left and the right, dismissed the idea as ridiculous — and still do.

But over the past two years, through his prolific writings, speaking engagements and television appearances, Professor Barnett has helped drive the question of the health care law’s constitutionality from the fringes of academia into the mainstream of American legal debate and right onto the agenda of the United States Supreme Court.

“He’s gotten an amazing amount of attention for an argument that he created out of whole cloth,” said one of his many critics, Douglas Laycock, a professor at the University of Virginia Law School. “Under existing case law this is a very easy case; this is obviously constitutional. I think he’s going to lose eight to one.”

Could the Court rule that it is Constitutional- of course they still could. But again, what is most troubling is that this is even in question. The implications of them over-ruling would be far and wide:

The thing is, as of the time the law was passed, *everyone* across the political spectrum thought this thing was constitutional. The Heritage Foundation started it, the D’s finished it, and the whole way down no one thought it ran afoul of the Constitution (save for people considered fringe at the time).

What this says is that Congress and the entire country were relying on the precedents SCOTUS set to pass the law—and they spent almost two years and untold legislative resources doing it. That’s the whole point of stare decisis, allowing for predictability with respect to what the law allows. Stare decisis is what makes sure the courts don’t act arbitrarily by constraining them to fit within precedent.

Acting in ignorance or with disregard for precedent (and precedent’s practical attendants, like reasonable beliefs in the public about what the law is) undermines rule of law, makes it impossible to pass laws confident of their legality, etc. It is, in a word, arbitrary. It’s the kind of thing they do in developing countries.

If SCOTUS ditches stare decisis here, sure their credibility will take a hit, but more importantly: we, as a polity and individuals, would have no reason to think we could pass any major regulatory legislation (unless, of course, we took the political commitments of the justices as our guide). SCOTUS would be potentially freezing the statutory law in place. What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change *existing* legislation? Are only Republican Congresses allowed to pass laws?

At any rate, it’s just funny listening to all the pearl-clutching from Fried and other “respectable” Republicans. Will the Court overturn it? In my more cynical moments, I say absolutely, by a 5-4 vote. In my more hopeful moments, I say of course not- it will be upheld 6-3. What will probably happen- anyone’s guess, but I think the best guess is that one or part will be struck down. They may split the baby and nuke Medicaid and keep the mandate.

Oh, and the answer to the question “If the law fails, what’s next” is that every single person who gets royally screwed, kicked out of their health insurance, etc., should be forcefully and repeatedly asked how they like their GOPcare/teabaggercare. Make the right wing own the mess. They broke it. They bought it. Make them own the misery they create.

*** Update ***

Read this, also too.






53 replies
  1. 1
    Ben Wolf says:

    If Kennedy votes to uphold the mandate, I think Roberts may as well.

  2. 2
    Mike in NC says:

    Roberts was not likely “to embark on constitutional adventures.”

    “Nobody could have predicted”

  3. 3
    SP says:

    In my most hopeful moments I think it will be 8-1 or even 9-0. Scalia has some concern for his place in history so he know he can’t overturn it without completely going down as a hack, so his only chance to stick it to the liberals in this case was to f** with them during oral arguments and make them panic for two months before the ruling is released. But then I remember Bush vs. Gore and think, yeah, 5-4 overturned.

  4. 4
    Hunter Gathers says:

    At this point I expect them to declare gravity unconstitutional.

  5. 5
    wrb says:

    What is Congress supposed to do with its time if everything it thought it knew about the law gets chucked out the window? How does it pass legislation? How does it change existing legislation? Are only Republican Congresses allowed to pass laws?

    Bingo!

  6. 6
    The Snarxist Formerly Known As Kryptik says:

    And again, it must be said, time and time and time again: The Mandate was totally uncontroversial and bipartisan until the moment a Democratic President came out for it. Then it became the height of unconstitutional rampant soshulizmses.

    The mandate would never be this contested if a GOPer passed it.

  7. 7
    Tonal Crow says:

    @The Snarxist Formerly Known As Kryptik:

    The mandate would never be this contested if a GOPer passed it.

    Bingo! IOKIYAR and its pregnant converse INOKIYAD explain most of our politics.

  8. 8
    Naive and Sentimental says:

    It’s days like these I wonder where I’d actually stand if I’d lived back during FDR’s court packing scheme.

  9. 9
    ThatLeftTurnInABQ says:

    Are only Republican Congresses allowed to pass laws?

     
    Gosh, that sure was an awful lot of verbiage just to reach a conclusion obvious to anybody who has been watching our political scene for more than a few years. Only Republican Congresses are allowed to pass laws, and only Republican Presidents are allowed to use a Keynesian stimulus to boost the economy, and only Republican dog-catchers are allowed to put the long arm of the law on wayward pooches, because only Republican government is legitimate. Any branch of government, any where, at any time, doing anything, if it is being done by Democrats, is fundamentally illegitimate. QED.

  10. 10
    Tehanu says:

    @SP:

    Scalia has some concern for his place in history so he know he can’t overturn it without completely going down as a hack

    ?? Are you kidding? AFAIC he’s already going down in history as a traitor, a wannabe Torquemada, and a total sellout to the corporations, and he’s certainly never batted an eyelash about any of those votes or opinions. Going down in history as a hack would be an improvement over the rest of his record.

  11. 11
    Michael says:

    I’m trying to hold onto Roberts saying the government had “a good argument” and Kennedy’s waffling and Scalia seeming open to the taxing power argument right now…

  12. 12
    PeakVT says:

    a passionate libertarian who teaches law at Georgetown

    We seem to be oversupplied with this type of person.

    Also, and apologies if this is a repost, this post summarizing research into predicting SCOTUS outcomes from oral arguments is worth looking at. Shorter: predictions based on word counts works most of the time, except for Kennedy. Questioning in this case was split 4-4 with one abstention.

  13. 13
    cathyx says:

    I listened to a very depressing ‘This American Life’ this morning about congress and the need for fundraising. I knew it was bad, but after hearing that program, there is no hope at all for any of us to have any voice or hope that they will do what is right for the citizens of this country. They are all indebted to big money.

  14. 14
    mai naem says:

    This crap is just too freaking depressing to think about. One of the worst things about this is that there is so much I got mine f u in this. I am so sick and tired of seeing old farts on medicare bitching and moaning about Obamacare. If the rest of us decided we didn’t feel like paying our medicare taxes these people would all be declaring bankruptcy and living in a box in the underpass.

  15. 15
    cathyx says:

    I have no idea how all those multiple posts happened. Sorry.

  16. 16
    Tehanu says:

    if you’re reading my post twice, it’s because the page froze in the middle of my first attempt. sorry!

  17. 17
    Scott says:

    If it gets overturned, I do think we should start calling the result “TeabaggerCare.”

  18. 18
    Gee says:

    Oh, and the answer to the question “If the law fails, what’s next” is that every single person who gets royally screwed, kicked out of their health insurance, etc., should be forcefully and repeatedly asked how they like their GOPcare/teabaggercare. Make the right wing own the mess. They broke it. They bought it. Make them own the misery they create.

    Except the narrative will be “Both sides made the mess”.

  19. 19
    wrb says:

    @Gee:

    Except the narrative will be “Both sides made the mess”.

    Or “Obama, the constitutional law professor (ha ha ha), couldn’t even come up with a health care reform that wasn’t unconstitutional. Affirmative action!”

  20. 20
    pluege says:

    hope, luck, the law, stare decisis, or the Constitution have nothing to do with the decision. Since obama’s dog’s breakfast of healthcare law is primarily a monstrous giveaway to insurance elites, the only question is if those insurance elites are lobbying their plutocratic ilk sufficiently to overcome the SCOTUS cretin five’s salivating at the opportunity to hurt obama politically.

  21. 21
    PIGL says:

    Actually, what should happen is, if the law is overturned: The President will have already identified the battalion sized entity best able to function as Praetorian guard. This body surrounds the courthouse, arrests the perpetrators, who are filmed on national TV being dragged, in chains with their heads in bags, into waiting black helicopters. Two hours later, their signatures appear on the bottom of ragged blood stained letters of resignation. Their bodies disappear into the black prison system never to be seen again. A letter of nominations to fill the suddenly vacant positions is delivered to the Senate the next day, with a request that it passed forthwith, while tanks and planes ostentatiously circle the capital, with some light gunfire and few spectacular fatalities. Some particularly obstructionist Senators and billionaires are dragged off screaming in terror amidst the confusion. A few hundred all-too-timely “suspicious” deaths dribble into the news one or two at a time over the next three months, as things slowly revert to the new normal: a democratic leaning out-in-the-open authoritarian government with a new court, in place of the current neo-confederate slash bankster conspiracy.

    As the big media financial empires are dissolved at gunpoint over the next few years, a society of magic unicorns will ensue, with ponies for all.

    On second thoughts, I’ll just pray for the meteor, or the Yellowstone Giga-volcano..

    EDIT: the thing is, America has engineered this many times in Latin America and elsewhere. And the neo-confederates are itching to do it at home. I firmly believe that the only remaining question is “who moves first”, and my money is on the side of the badder guys.

  22. 22
    David Koch says:

    I can’t believe liberal icons Chris Dodd and Saint Russ Feingold voted for Roberts.

    http://www.senate.gov/legislat.....vote=00245

  23. 23
    Commenting at Ballon Juice since 1937 says:

    The logic employed to declare the mandate unconstitutional would also kill any dream of privatizing social security. I think it would be fun to start a discussion of impeachment now that state level recalls are in progress. It makes the idea less foreign. There is plenty of evidence that Roberts and Scalia lied during their interviews. They have overturned precedent now more than once, something they said that they would not do. The public is not with them and historically that has mattered whether they want to acknowledge it or not.

  24. 24
    Commenting at Ballon Juice since 1937 says:

    @PIGL: It would make a good post on one of the winger sites. Go cut and paste that on a few, it’ll make their day. They need a good pants pissing.

  25. 25
    PIGL says:

    @Commenting at Ballon Juice since 1937: assuming that any deep enough pockets existed to take privatisation of SS to the Supreme Court, and assuming further that logic (as opposed to logic-chopping) would then determine their decision.

    I’d go with impeachment, but first you’d need bullet proof majorities in both chambers. So to speak.

  26. 26
    Commenting at Ballon Juice since 1937 says:

    @Scott: If it gets overturned, Obama should issue an executive order over riding Reagan’s that hospitals have to accept everybody. Then we’ll call it ‘baggerCare’.

  27. 27
    NR says:

    @The Snarxist Formerly Known As Kryptik:

    And again, it must be said, time and time and time again: The Mandate was totally uncontroversial and bipartisan

    Just as the vast majority of expansions of corporate power have been.

    I’ve said it before and I’ll say it again: Our corporatist Supreme Court will render a pro-corporate decision and uphold the mandate. There will be three or four dissenting conservatives, to keep up the kabuki dance, but the Court will approve this massive expansion of corporate power just as they did with Citizens United. Case close, move along, there’s nothing to see here.

  28. 28
    NR says:

    @Commenting at Ballon Juice since 1937:

    The public is not with them and historically that has mattered whether they want to acknowledge it or not.

    Actually, the polls say that a majority of the public doesn’t like the ACA.

    But ultimately, that doesn’t matter. The Supreme Court, like the rest of the government, will do what their corporate overlords want, not what the public wants. And that means upholding the mandate.

  29. 29
    burnspbesq says:

    @PIGL:

    Actually, what should happen is, if the law is overturned: The President will have already identified the battalion sized entity best able to function as Praetorian guard. This body surrounds the courthouse, arrests the perpetrators, who are filmed on national TV being dragged, in chains with their heads in bags, into waiting black helicopters. Two hours later, their signatures appear on the bottom of ragged blood stained letters of resignation. Their bodies disappear into the black prison system never to be seen again. A letter of nominations to fill the suddenly vacant positions is delivered to the Senate the next day, with a request that it passed forthwith, while tanks and planes ostentatiously circle the capital, with some light gunfire and few spectacular fatalities. Some particularly obstructionist Senators and billionaires are dragged off screaming in terror amidst the confusion. A few hundred all-too-timely “suspicious” deaths dribble into the news one or two at a time over the next three months, as things slowly revert to the new normal: a democratic leaning out-in-the-open authoritarian government with a new court, in place of the current neo-confederate slash bankster conspiracy.

    And after the commercial, we see Jack Bauer drop into a manhole in Old Town Alexandria that connects to a long-forgotten escape tunnel that leads him right into the Oval Office, where he takes out Hilary and restores Obama to his rightful place on the throne.

  30. 30
    Some Guy says:

    I don’t think I quite understand, NR! The Affordable Healthcare Act is not Corporate Interest?

  31. 31
    R Johnston says:

    Exactly 100% of what the government does can be characterized as creating or enforcing a mandate to do or not do something or other, and about 99% of it involves a mandate to spend money in the private sector. When Congress buys a fighter plane it is mandating that I spend my dollars–i.e. the tax money they collect from me–purchasing a fighter plane from a private contractor. When Congress gives states money to build schools it is mandating that my tax dollars be sent to the private contractors building those schools. Medicare mandates that my tax dollars be sent to private sector doctors to pay for other people’s medical care. Social Security mandates that my tax dollars be sent off to a tea bagging lunatic so he can buy a BluRay of the Sarah Palin movie. As far as mandates go, the ACA mandate isn’t even particularly onerous–a $695 tax assessment on those who can afford but don’t purchase insurance, with effectively no criminal or civil enforcement of the tax actually allowed, so that unless you’re due a big tax refund that the government can cut the $695 out of you never actually pay a penny for violating the mandate.

    If mandates as wimpy and as geared towards an obviously legitimate purpose as that in the ACA are unconstitutional, government is unconstitutional, and if the ACA mandate is struck down “what’s next” is some right wing lunatic somewhere challenging every government program under the sun until the challenge ends up in front of a right wing lunatic judge who applies the Supreme Court’s brand new precedent in the only way that’s actually a fair and logical interpretation of that precedent. Everything under the sun will be declared unconstitutional, the Supreme Court will try but be unable to articulate a reason why the lower Courts are wrong, and the law will be a higgledy-piggledy mess until Congress decides that the Supreme Court has to simply be ignored if the government is to function.

  32. 32
    Djur says:

    @pluege: On behalf of my friend who would be dead today if not for the ACA: fuck you and go to hell. You don’t even understand the ACA, and yet you feel justified in making lofty statements about it. You don’t know shit.

  33. 33
    Djur says:

    @NR: The insurance companies would throw the mandate over a cliff in an instant to lose the regulatory apparatus of the ACA. Of course, their preferred system would be the ’90s Heritage Foundation plan — an individual mandate for catastrophic and tax credits to support it, without any accompanying regulation. That’s a direct transfer of public wealth to insurance companies.

  34. 34
    The prophet Nostradumbass says:

    @NR:

    Actually, the polls say that a majority of the public doesn’t like the ACA.

    yet, if the public are asked about the individual parts of it, without mentioning “Obamacare”, or the ACA, they like it.

  35. 35
    PIGL says:

    @burnspbesq:You are right to be sceptical. In the real world, these coups almost always go the other way, with the jack-booted thugs shooting or otherwise killing all the hippies and lefties and professors required to re-establish the dictatorship of the 1%.

    With that single exception, there is nothing unprecedented, or even unusual, about my fantasy.

  36. 36
    d says:

    “How do you like your teabagger care” is a great slogan and should be endlessly repeated just like “Obamacare.” If they think the status quo is so great they can own it.

  37. 37
    rikyrah says:

    that DailyKos diary is quite powerful

  38. 38
    Cacti says:

    If Kennedy votes to uphold, Roberts will go too so that he can exercise his Chief’s privilege and draft the decision.

    Scalia will author the dissent, and Alito will ask “what’s insurance”?

  39. 39
    Jess says:

    @The prophet Nostradumbass: Yes, and many don’t like it b/c they think it doesn’t go far enough (no single payer). I’m pretty sure, though, that those who understand the basic principles of the ACA would agree that it’s better than what we had before.

    p.s BTW, love your handle!

  40. 40
    liberal says:

    At any rate, it’s just funny listening to all the pearl-clutching from Fried and other “respectable” Republicans.

    I don’t know that much about Fried. But I do strongly recall that he was cited by Ronald Dworkin as a conservative guy who thought that originalism was nonsense.

  41. 41
    liberal says:

    @David Koch:
    IIRC Roberts got many more votes than Alito. Not like I like Alito or anything, but I didn’t see why any Dem would think Roberts any better, except for some hidden bias in favor of the “golden haired boy” so to speak.

  42. 42
    NR says:

    @The prophet Nostradumbass:

    yet, if the public are asked about the individual parts of it, without mentioning “Obamacare”, or the ACA, they like it.

    Not the mandate, they don’t.

  43. 43
    liberal says:

    @R Johnston:

    As far as mandates go, the ACA mandate isn’t even particularly onerous—a $695 tax assessment on those who can afford but don’t purchase insurance, with effectively no criminal or civil enforcement of the tax actually allowed, so that unless you’re due a big tax refund that the government can cut the $695 out of you never actually pay a penny for violating the mandate.

    Yeah, I agree, but I just had a thought—what if you get EITC?

  44. 44
    ShadeTail says:

    @Djur:

    Amen. I’ve been living in fear of what would happen to me and my two sons if we ever lost my husband’s health insurance. The problem isn’t gone entirely, but we’re in much better shape than we were before thanks to lots of the ACA’s provisions.

    It pisses me off so badly to see ignorant purists saying stupid crap about the ACA.

  45. 45

    You people are living in an alternate reality. What color is the sky there?

    The reason the case imploded is because Obama’s solicitor general couldn’t answer a simple question: if the government can compel American to buy health insurance (from a private insurer) what CAN’T the government force people to buy? Broccoli? Health club memberships?

    In other words, what are the limited and enumerated powers of government if the Federal government can force Americans to purchase something against their will? Apparently nothing.

    And before you liberals all start with your “think of the children!” schtick: yes, there is an issue with the uninsured in America. The problem is that Obama tried to fix the problem through extra-Constitutional means, forcing Americans to engage in commerce they didn’t want to engage. There were lawful ways to address this issue but it would have meant raising taxes and, heavens knows, Obama couldn’t do that.

  46. 46
    R Johnston says:

    @liberal: Honestly, I don’t know. At the lower end of the income range for people getting the EITC, Medicaid and SCHIP eligibility should largely make the mandate moot. People with income below the federal poverty line or for whom the cost of their share of premiums would exceed 8% of income after subsidies don’t have to pay the penalty for not carrying insurance. At the low end of the income range the subsidies offered to purchase insurance are pretty good, such that the premiums a lot of EITC earners would have to pay to get insurance are less than the penalty for not carrying, making insurance reasonably affordable.

    My guess is that the penalty might squeeze some young, healthy people getting the EITC who are at the higher end of the income eligibility range, forcing them to choose between paying the penalty or more than they’d like for insurance, but that for other people either there’s coverage through Medicaid/SCHIP or the subsidies and probably health outcomes are such that they’d almost certainly buy insurance even without the penalty. That is, however, just a guess.

  47. 47
    Bago says:

    @Eric Lindholm: F-22 from dozens of private contractors. Security arrangements through firms like xe.. Space shuttles, whole fleet of ’em. The federal health insurance program enjoyed by the justices themselves. Little things like that. In comparison, broccoli is peanuts.

  48. 48
    Curt Lautieri says:

    I suppose a vital part of modern Christmas looks to be complaining about it and the foremost sacred day on the American Calendar is currently Black Friday.

  49. 49
    brantl says:

    The only real question is how Kennedy’s going to vote. The Koch-suckers are going to vote for repeal. They’re partisan dicks, there’s nothing new there.

  50. 50
    bob h says:

    What is the limiting principle on rogue, shameless, unconstrained judicial activism on SCOTUS? Do we have to wait for senility or natural death to take a toll?

  51. 51
    SixStringFanatic says:

    Extra-constitutional? Is that something you can only get at a D.C. KFC? “Would you like that Originalist Recipe or ExtraConstitutional?”

    Hey, I’ve got an idea! Why don’t you make it more fun by putting it in a catchy song? How about…
    “SuperCaliFragilistic-ExtraConstitutional”?
    Hope I’ve helped!

  52. 52
    Nancy Irving says:

    The Kos diary you link to reminds me to point out that from an electoral standpoint, it’s not just the 13 million young people who will now be able to be covered on their parents’ plans who will be more likely to vote Dem as a result; it’s also millions of their parents, and perhaps even some of their grandparents, if they haven’t been totally zombified by Fox News.

    We are probably looking at a group totaling at least 20 million, which is a pretty good chunk out of America’s approximately 200 million persons eligible to vote.

    We have lamented that most of the good parts of Obamacare won’t go into effect before this year’s elections, but this provision alone may make the difference.

  53. 53

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