Will be hard

Ezra Klein:

While I was reporting out my New Yorker piece, I spoke with Akhil Reid Amar, a leading constitutional law scholar at Yale, who thinks that a 5-4 party-line vote against the mandate would be shattering to the court’s reputation for being above politics. “I’ve only mispredicted one big Supreme Court case in the last 20 years,” he told me. “That was Bush v. Gore. And I was able to internalize that by saying they only had a few minutes to think about it and they leapt to the wrong conclusion. If they decide this by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.”

Sad, for Amar, but so honest of him to admit it. I’m genuinely sympathetic, because that is hard, devoting your working life to an idea and then having to grapple with the truth of the thing. I’m to the point on the health care law and the Supreme Court where I’m just enormously, ridiculously grateful to read something sincere.

I no longer care about the court’s “reputation”, which is probably why Amar is a constitutional scholar and I’m not. I respect constitutional scholars and I think their work is valuable. This isn’t a Tea Party screed or a diatribe against book learning or academics or people who actually know a lot about a specific subject. I respect that. The hard fact for me is, reputation is earned. I keep coming back to that. It isn’t a given and people and institutions don’t get to keep a good reputation when their actions aren’t reputable. I don’t know when we started speaking of “reputation” and “credibility” as abstract qualities that are completely divorced from the behavior of individuals within organizations or institutions, but that construct never made sense to me.

The reaction from conservatives is, of course, carefully planned, completely politically motivated, and made up entirely of meaningless marketing-speak:

“If the Court strikes down all or part of the president’s health care law, there will be no spiking of the ball,” Boehner wrote in a memo today to House Republicans.
Boehner said the GOP’s focus should remain on the overall economy, and “we will not celebrate at a time when millions of our fellow Americans remain out of work, the national debt has exceeded the size of our nation’s economy, health costs continue to rise, and small businesses are struggling to hire.”

That is, of course, if the law is struck down. I have no earthly idea what the Court will do.

Boehner released the memo to media to insulate Republicans against the charge that they were celebrating denying 30 million people access to health care, and that defensive move certainly worked as planned. The memo was reprinted entire all over the place. Boehner is (understandably) frightened that conservatives will be dancing in the aisles at having once again thwarted any effort to make health care accessible to the tens of millions of people who don’t get any. Boehner is worried that this will look bad. In other words, the Affordable Care Act is about John Boehner and the Republican Party. I don’t think this carefully planned media campaign will work.

I actually fully expect hooting and hollering by conservatives and the various media personalities and paid PR hacks that helped them achieve this historic victory over universal access, if the law is taken down. Remember the spontaneous outbreak of joy on the Right when a certain US city wasn’t chosen to host the Olympics? None of them give a rat’s ass about the Olympics or Chicago, but Chicago failing to get the Olympics was a HUGE win for conservatism.






148 replies
  1. 1
    Villago Delenda Est says:

    The court kissed it rep goodbye in 2000 with the abomination that was Bush v. Gore.

    The four surviving “justices” who installed the deserting coward in office should be the first to ride the tumbrels.

  2. 2
  3. 3
    arguingwithsignposts says:

    Yeah, there will be much rejoicing, no matter what Boehner writes. It’s what they do.

  4. 4
    negative 1 says:

    They have an image problem, and they know it. I’ll put it like this — if people didn’t think that they were utterly uncaring about most citizens of this country, Rmoney would be ahead by 20 points.
    It will be interesting to see what the Rmoney campaign makes of this. Ironically, from a strictly message standpoint it will be a lot easier for Obama to point out the obvious – that a republican court just made it so that you can’t afford healthcare (again). For the rethugs, what do they say? We’re sorry we took your healthcare but we swear we care a lot?
    I will give a little bit of credit to Boehner though, because here in RI when the governor stripped the pension of every state employee he gave away souvenir pens to those in attendance.

  5. 5
    Odie Hugh Manatee says:

    The Orange Guy put that out so they can then spike the ball in the end zone and claim that they didn’t do it because, as the Orange Guy said, that would look bad.

    Then they will follow that with ‘You’re trying to make us look bad, you partisan hack!’

    I fully expect the Supremes to strike down part or all of the health care act. The court has it’s highs and lows throughout its history.

    It’s at one of the low points in its history now but like past courts, they don’t give a shit what anybody thinks about them.

  6. 6
    Villago Delenda Est says:

    None of them give a rat’s ass about the Olympics or Chicago, but Chicago failing to get the Olympics was a HUGE win for conservatism.

    Because it was an “up yours, ni*CLANG*”.

    That’s why it was a huge win for “conservativism”.

  7. 7
    Hawes says:

    People aren’t institutions. An institution is an institution precisely because it has been around a long time and come to be valued for its own sake.

    The Court HAD institutional legitimacy. The Roberts Court and the men on it are pissing that legitimacy away. True, they didn’t earn it in the first place, but it did exist.

  8. 8
    redshirt says:

    I’ve realized recently I’ve lost faith in almost everything – courts, the Law, government, corporations, religion, most fellow humans, etc.

    Science is all I have left.

    I suspect many others feel similar, but how do you go about rectifying this, except through the long slog of time?

  9. 9
    Scott S. says:

    I’m assuming it’ll be 5-4 against. I’m assuming there will be huge celebrations amongst wingnuts, including private citizens, Congressmen, media stoogies, and presidential candidates. I would not be at all surprised to see any of the five justices attending celebrations about it.

    I expect the media to mostly celebrate. And they’ll act shocked and horrified at any suggestion that the Roberts court is bought and paid for by the GOP.

  10. 10
    Splitting Image says:

    I still say 6-3 to uphold.

    I guess I fall into the category of people who will be disillusioned if it fails.

    The thing is, I think that it would be better for the U.S.’s business environment if it is upheld, so to me it makes sense to think that Roberts and Kennedy will uphold for completely cynical and political reasons. If the law goes down, that indicates that they aren’t just cynical and craven, but stupid as well.

  11. 11
    General Stuck says:

    I think it is goods new, though a little scary, that this election is narrowing into a simple choice of broad world view of the two great parties in our system of government. With voters likely to receive some pure grade of conservatism not seen since Goldwater and 1964.

    But it isn’t 1964, it is the year 2012, and the GOP has invested billions over decades to turn corporate interest into getting themselves elected by some kind of weird science. With a witches brew of fact and fiction, and some big PA systems to broadcast their Orwellian wanking. Now set on rock and roll by the Supreme Court with CU.

    This isn’t so much an election we are approaching, as some kind of existential reckoning. Either way, America is not going to look like it did. We will become more like all of the one thing, or more like all of the other thing. With crazy republicans either turning us into the corporate theocracy they pine for, or conducting greater mischief dialed up to 11.

  12. 12
    Davis X. Machina says:

    I don’t expect much of a backlash, even if 30 million or so lose coverage, or can’t get it, or some combination thereof. A lot depends on who they are, whom they vote for, and whether they vote at all. And in a post-CU world, I’m not sure even that matters.

    Health coverage is to some extent a positional good, so that if I have good coverage, and you have poor coverage, my coverage is rendered more valuable thereby.

    Same thing when I have poor coverage, and you’ve got none. And again, when I’ve got none and am queuing at the Remote Medical mobile clinic, and you’re dead.

    Any politician who can’t exploit the difference between what I have and what you have, or used to have, or don’t have at all, to keep me voting for them doesn’t belong in the business.

  13. 13
    Scott S. says:

    @redshirt: Science has been targeted, too. They won’t be happy ’til Official Party Science states that the Earth was created on Bishop Ussher’s timeline.

    Expect more universities to go the way the University of Virginia just did. They’re going to kill education at every level, just to make sure no one ever says anything bad about a stockbroker, a preacher, or a Republican again.

  14. 14
    beltane says:

    @Maude: They deserve to walk through a gauntlet of angry, egg wielding people.

    Part of the reason the Right was so wound up by 9/11 is that the attackers were foreigners. If it had been a group of Real Americans who had killed a few thousand New Yorkers the reaction would have been far more subdued, with even some excuse making taking place, and almost forgotten by the public by now.

  15. 15
    Davis X. Machina says:

    @General Stuck:

    Either way, America is not going to look like it did. We will become more of all of the one thing, or more of all of the other thing.

    Party like it’s 1861.

    I have great hopes for America once the Civil War finally ends.

  16. 16
    Breezeblock says:

    Nicely said Kay. Now I plan on guzzling some bleach.

  17. 17
    Mr Stagger Lee says:

    If the decision is struck down, the Obama Administration should use the reactions coming from Rush, Sean, Glenn and Fox and use them as campaign ads. Plus put in a number of Americans dying from no care due to lack of insurance or denied coverage. Believe me this ad if played right will be the Daisy ad of 2012.

  18. 18
    Davis X. Machina says:

    @beltane: Bingo. How often do you hear about Oklahoma City any more? And how much of that is from conspiracy theorists and people who have had their copies of the Turner Diaries thumb-indexed for ready reference?

  19. 19
    Schlemizel says:

    I have come to the conclusion I know how the 5-4 vote will go. It will spare all of ACA except for the mandate part. Why? Because that will ensure the best results for our corporate masters while doing the maximum harm to Obama and progressives. It will ensure massive rate increases and huge profits while providing worse health outcomes. Just as importantly it will give the GOP something to run against and nothing good for the Dems.

    While the court four teatards fully on board with the destruction of America the one swing vote is deep into the work of our corporate masters & not swayed by politics. thats why we get 5-4 decisions & why that 5th vote swings.

  20. 20
    smintheus says:

    Bewildering that anybody could study SCOTUS and still deny to himself that it’s overtly politicized and ideologically rigid. There’s a long list of repulsive rulings that you can’t argue away, all of them favoring the powerful and well connected.

  21. 21
    redshirt says:

    @Scott S.: Oh, I know that. How sad/frightening it is to read about Climate Scientists under perpetual fear of death threats. Why?

    Because something insane has been let loose and now sweeps through all of our society.

    Science itself, however, remains a paragon, and cannot be touched by such madness.

  22. 22
    Scott S. says:

    @beltane: Fuck eggs. Axes would be more appropriate.

  23. 23
    redshirt says:

    @beltane: I darkly wish it were possible to re-run 9/11 just as it happened except with a President Gore in the office. How fast do you think the Repukes would have turned on him? Before the buildings fell?

    Fucking fascist pigs.

  24. 24
    The Moar You Know says:

    Smartest move Boehner’s made in quite a while. Amazing what taking a break from the scotch can do. Too bad it’s utterly futile.

    I actually fully expect hooting and hollering by conservatives and the various media personalities and paid PR hacks that helped them achieve this historic victory over universal access, if the law is taken down.

    Because of this. They’ll riot in the streets that the uppity black guy got what was coming to him. And the optics of that are going to be impossible to look good.

  25. 25
    Bulworth says:

    Great post, Kay.

  26. 26
    Swishalicious says:

    Bush v. Gore came down when I was a sophomore in high school – I didn’t really understand it, but thought deep down that it was just SCOTUS handing the election to Bush in what was an extremely murky situation. I didn’t think of it much until taking Con Law in college, where the decision struck me as profoundly insane.

    In law school Con Law, we spent months studying these hallowed judicial traditions, only to come to Bush v. Gore, where just about every single one of them was torched in an conflagration of obvious corruption. Citizens United cemented that SCOTUS is just partisan politics in creepy uniforms.

    I realized at that point that, like Akhil Reed Amar, studying “the law” had been a total waste of my life. The law, jurisprudence, and whatever other high brow words we concoct serve only as cover for those with power to wield it over those without.

  27. 27
    Steeplejack says:

    Can anyone recommend a good book on Bush v. Gore and the whole Florida fiasco?

  28. 28
    Kay says:

    @Hawes:

    People aren’t institutions. An institution is an institution precisely because it has been around a long time and come to be valued for its own sake.

    I agree. But if that accumulated legitimacy is chipped away, I do think people have to grapple with that, or at least look at it. The people within the institution didn’t (necessarily) earn the reputation the institution enjoys. It was there when they arrived, not for all, but certainly for those with less time on that court. If they decide to fritter that away, well, that should be recognized.

  29. 29
    Ash Can says:

    I’m sure that the House Republicans will treat Boehner’s directive with the respect and obedience they usually show his leadership.

  30. 30
    Linda Featheringill says:

    Are we expecting to hear something on Monday?

  31. 31
    negative 1 says:

    @Scott S.: I don’t know that I agree. That ship sailed with their coverage of the case. They openly said that the court’s precedent should lead to them upholding. If the media was going to roll over completely, they wouldn’t have said anything.
    The funny thing is this is because the media for this is the supreme court’s reporters, who still treat their job professionally. If only they could educate their colleagues.

  32. 32
    General Stuck says:

    If the SCOTUS strikes the ACA mandate down, or otherwise makes it unworkable, then it is game on for Barack Obama and his krew to turn that shit sandwich into a political weapon via serendipity. We are going to see the potential of the man as a great leader and politician, put into action, to saddle the greater GOP with the consequences of such a corrupt act by their runaway right wing supreme court. And he has to do it in the stiff wind of citizens united, and in spite of the hotdog stand that is the fourth estate. They couldn’t pay me enough to have Obama’s job.

  33. 33
    flukebucket says:

    Boehner has no control over that mob. And the dancing and celebrating if it is struck down will go on for weeks. The nuts will have gotten what they wanted but just like a dog catching a car what will they do with it now that they have it?

    I am the eternal optimist. I will believe the court will let it stand until they prove otherwise. I still lean towards 6-3 in favor.

  34. 34
    Culture of Truth says:

    Before we all jump of a bridge, I want to see their reasoning.

    If it’s any consolation, if the court does strike it down, it will prove the law and court still matter in American life, just not in the way Akhil would like. Heh.

  35. 35
    beltane says:

    @redshirt: They are fascist pigs and the only way to defeat them is to form a coalition of all groups who are not part of the Republican base to fight this pestilence. People really need to understand that if you are not a white conservative pseudo-Christian (the religion these people practice bears no resemblance to traditional Christianity), the Republican Party wants you dead. The wingnuts do not represent a majority of Americans; their strength lies in being a large, vocal, an homogenius minority. The Democratic party’s loose association of those-who-don’t-fit-in-the-Republican-base is not enough to counter the force of the GOP’s single-minded cult.

  36. 36
    Culture of Truth says:

    Court reporters are unusually good. Maybe because they don’t hang out with the subjects, and there is less horse-racing.

  37. 37
    Schlemizel says:

    @redshirt: I’d like to replay the 00 election with an honest court because I believe 9/11 may not have happened with a President Gore. Remember that the Blunder administration shut down the ground work on Bin Laden to focus on China and ignored a ton of reports about Al Qaeda plans in the days leading up to 9/11. It is possible that those few months leading up to the day might have had arrests and a destruction of the plot.

    After which the GOP & the Wherlitzer would have been pumping out how the whole thing was trumped up to make President Gore look tough while bowing the the Chicoms.

  38. 38
    redshirt says:

    @General Stuck: Amen brother. I still have faith on Barack Hussein Obama (100% Obot here), I just grow incredibly weary with everyone else, including his ostensible allies.

    He’s a great man, and if there’s anyone who can steer us through this madness, it’s Obama.

  39. 39
    Ruckus says:

    @Maude:
    With a big fucking cross strapped to their backs.

  40. 40
    shortstop says:

    @Odie Hugh Manatee: I am conscious that every generation thinks it’s the end of the world,
    to quote Mr. Tweedy. So can you give some examples of court “low points” that match the current one and allow us to see this as an outlier rather than a steady trend?

  41. 41
    sparky says:

    i give Amar credit for admitting it, at any rate. my realization of this fact was one of the reasons i quit law: the lack of clothing on the king became a little too obvious.

    @General Stuck: no sale. good try, though.

  42. 42
    Culture of Truth says:

    Yes I agree, Team Obama can turn either result into a win. If some or all is struck down, the media will have anti-Obama kittens, but then the reality will settle in like Alec Guiness in Bridge of the River Kwai. “What have we done?”

  43. 43
    debbie says:

    shattering to the court’s reputation for being above politics

    Not a surprise to anyone who’s heard even a few words from Scalia.

  44. 44
    Scott S. says:

    @Mr Stagger Lee: Also, just wanted to say I endorse this idea wholeheartedly. If the Obama campaign doesn’t have two dozen people recording every hate-radio host and taking screenshots of every wingnut blog and freeper post, they’re out of their minds.

    People hate the teabaggers already. It’s long past time to start using that to fuck Romney and the Supremes good and hard.

  45. 45
    RP says:

    I have come to the conclusion I know how the 5-4 vote will go. It will spare all of ACA except for the mandate part. Why? Because that will ensure the best results for our corporate masters while doing the maximum harm to Obama and progressives. It will ensure massive rate increases and huge profits while providing worse health outcomes. Just as importantly it will give the GOP something to run against and nothing good for the Dems.

    But that would have the opposite effect — it would screw the insurance companies because they’d be forced to cover a lot of sick people without requiring healthy people to join the pool. In fact, that was the chamber of commerce’s position in its amicus brief: they didn’t take a position on the mandate, but said that the court can’t split the baby by getting rid of the mandate and keeping the rest. (that’s also the admin’s position)

  46. 46
    redshirt says:

    @Schlemizel: I don’t doubt that, but in this simulation, I would love to see (not really) how these fascists would respond to the exact same situation except with a Democrat in charge.

    That said, I’m 95% sure I know – we all know – exactly how it would play out. Impeachment? Coup? Violence in the streets?

  47. 47
    RP says:

    @Culture of Truth: Yeah…I don’t want to sound panglossian, but it could be win-win for us if the admin plays it right. If ACA is upheld, “yay for us and this great thing we’ve accomplished.” If it’s overturned, “see, the right is out to screw americans with their bought and paid for court, and you need to go to the polls and elect more democrats to ensure that that stops.”

  48. 48
    Chukwu says:

    @shortstop: For starters, the Court invalidated several of Teddy Roosevelt’s Progressive reforms at the turn of the twentieth century, and was again hostile to the initial laws of the New Deal. You can actually make the case that the Supreme Court of the mid to late 1900s was an aberration in not carrying water for plutocrats.

  49. 49
    Chukwu says:

    @shortstop: For starters, the Court invalidated several of Teddy Roosevelt’s Progressive reforms at the turn of the twentieth century, and was again hostile to the initial laws of the New Deal. You can actually make the case that the Supreme Court of the mid to late 1900s was an aberration in not carrying water for plutocrats.

  50. 50
    General Stuck says:

    OT

    There are so many relevant variables to this election, it is easy to miss some very important ones.

    Gas prices could hit $3 by autumn

    THIS – of course, is good news for John McCain

  51. 51
    Culture of Truth says:

    The fact that it’s taking so long suggests that Kennedy is trying to thread some kind of needle, or create a coalition around striking it in part. Or it could mean a big strike, but I doubt it. If they (he) were going to uphold it, wouldn’t they have done it by now?
    Eh, what the hell do I know.

  52. 52
    David in NY says:

    I had already been thinking about the kind of thing Amar is saying. In law school, professors regularly have to spend a fair amount of time, especially in constitutional law and especially in the first year, countering many students’ views questioning “why should we bother about learning this stuff, when the judges are just going to do what they want to.” The Court is about to blow the professors’ usual answer all to smithereens. Bush v. Gore put a big dent in it already (I did not even think Bush’s appeal certworthy, much less meritorious, and most professors agreed, I think). Now its going to put the answer in its grave. It’s becoming pretty clear that legal principle is no brake on five justices of the Court — who invent novel doctrines with no tether in either precedent or the text of the constitution — for purely political purposes. Just look at the case decided yesterday — unions must get prior consent of members before spending dues for political purposes. Of course, other corporations, under Citizens United, need not get shareholders consent for such activities — a totally incoherent application of the First Amendment.

    The first year law students have won. Constitutional doctrine means nothing, unless it comports with a conservative political position and has five votes. Only the votes, and not the law, make a difference now.

  53. 53

    I graduated law school in May of 2000, seven months before Bush v. Gore proved that the Supreme Court of the United States was nothing but a GOP whorehouse. I wished then that I’d stayed in teaching. I still wish it twelve years later. Teaching was a shit job but I’d be seven years away from retirement and probably have more money in the bank.

  54. 54
    Culture of Truth says:

    Just as there swing states, there are swing justices. Anyway, we’ll know soon enough.

  55. 55
    montanareddog says:

    @Swishalicious:

    The law, jurisprudence, and whatever other high brow words we concoct serve only as cover for those with power to wield it over those without.

    The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread

    Anatole France wrote that in 1894 and it was ever thus, and it ever will be. The rich and powerful will use all tools at their disposal because, otherwise, they would not remain rich and powerful; and they like being rich and powerful.

    They will continue to try and take more and more because that is what they do; they don’t have a material need, but a psychological one, which can never be sated.

    So, no point in getting depressed about a struggle that will never end; we serfs must organise and push back. Continously.

    (And our psychological comfort is that history will view us, and our decency, more kindly than the rapacious orders and their lackeys in politics, media and the law.)

  56. 56
    General Stuck says:

    @sparky:

    LOL, our weathervane troll crawls out of the ooze in the fever swamp. When you vote for Romney, what will your momma say?

  57. 57
    David in NY says:

    @Culture of Truth:

    fact that it’s taking so long suggests that Kennedy is trying to thread some kind of needle

    Nah, it just takes a long time to write the fulminating dissents. Majorities have the votes, and so its easy to write their opinion. Whatever they say is how it is. That’s that.

  58. 58
    cmorenc says:

    @beltane:

    Part of the reason the Right was so wound up by 9/11 is that the attackers were foreigners. If it had been a group of Real Americans who had killed a few thousand New Yorkers the reaction would have been far more subdued, with even some excuse making taking place, and almost forgotten by the public by now.

    For example, Tim um…what’s his name? McVeigh in Oakland…um, no…Oklahoma City. He was a home-grown American terrorist wacko loner who went psychopathic homicidal nuts….HEY! LOOK AT THAT SHINY OBJECT OVER THERE, it’s Janet Reno and the ATF storming the compound in Waco! Bad federal government! Terrible! Jack-booted thug tyranny! Um…what were we talking about?

  59. 59
    Raven says:

    @Culture of Truth: And whatever happens it won’t be what anyone thinks it will be.

    “I’m so tired of being tired

    Sure as night will follow day

    Most things I worry about

    Never happen anyway”

  60. 60
    beltane says:

    @Scott S.:

    People hate the teabaggers already. It’s long past time to start using that to fuck Romney and the Supremes good and hard

    Yep, it’s time for the Democrats to paint the Republican party (including their supporters) as a group of deviants who are more likely to hand out poisoned Halloween candy to children than they are to provide anything of value to society. The more the demographics of this country change the more important it will be to highlight the “these people are icky and gross” qualities of the Republican base.

  61. 61
    greenergood says:

    @beltane:
    If it had been a group of Real Americans who had killed a few thousand New Yorkers the reaction would have been far more subdued, ‘Hell, yeah, those god-hating/wrong religion(jewish)/wrong colour/east coast/snarky/liberals [take your pick] deserved everything comin’ to ’em.’ In fact, I think quite a few Real Amuricans DID actually think that, but kept it quiet, so they could armchair-bomb Mooslims, and bankrupt the Welfare budget.

  62. 62
    bemused says:

    Boehner is delusional if he thinks the inmates running amok in his house for the last two years are going to pay any attention to him now.

  63. 63
    beltane says:

    @cmorenc: And those were Real Americans who died in Oklahoma City. I can’t imagine any outpouring of sympathy on the right for the multi-ethnic tapestry of New Yorkers who died on 9/11. People complained that Arabs were dancing in the streets on 9/11; well, if the attacks had been the result of native terrorists there would have been quite a bit of celebrating in certain quarters of the United States.

  64. 64
    MikeJake says:

    My moment of enlightenment came when a constitutional law professor explained to me that an important part of arguing a case before the Supreme Court was to craft an argument that would appeal to a majority of the justices. Being naive about it, I had assumed that lawyers would advocate their side, but through reasonable legal arguments that supported their position, and would be content to let the chips fall where they may. Not “well, I can’t argue this, because I’ll only get Scalia if I argue this….”

    You really do have to account for their politics.

  65. 65
    Culture of Truth says:

    @Raven: Indeed, won’t we all be embarrased when the court goes outside the briefs again and announces Jeb Bush is actually the President.

  66. 66
    Kay says:

    @General Stuck:

    I actually feel pretty good about the election right now. I think the Obama campaign is methodically discrediting Mitt Romney, which is what they need to do, because despite all this endless pundit bullshit, the central fact is no one knows who Mitt Romney is. They’re never going to find out, either, from Mitt Romney, because Romney has absolutely no center or core.

    Bain (completely successfully, I think, they’ve taken Bain off the table for Romney) then Massachusetts record, then the next pillar, then the next. Hopefully they’ll continue to ignore “Democratic strategists”. Their complete fuck-up on advising against Bain should discredit them for this cycle.

  67. 67
    Raven says:

    @Culture of Truth: Yea, well I’m going to spend the rest of my life worrying about that.

  68. 68
    slippy says:

    What will be good (not much, I admit) out of the SCOTUS’ striking down of ACA is that we will then be able to rhetorically ask Mitt Romney, over and over again, when the SCOTUS will be reviewing Massachussets’ Romneycare.

    After all, it also contains a mandate.

  69. 69
    williestark says:

    I’m always taken aback by how little focused discussion of policy there is in conservative publications and on conservative websites, compared to simple taunting of libruls and reassurances that right-wingers constitute a political majority.

    I’m sure the aftermath of the health-care decision will supply more examples.

  70. 70
    Patricia Kayden says:

    Republicans have celebrated the death of left wing politicians — do you remember what Breitbart and Limbaugh said about President Kennedy when he passed? Remember what Limbaugh said about John F. Kennedy, Jr., when he passed?

    Why does Boehner think he can stop Righties from celebrating wildly if the Supreme Court strikes down “Obamacare”? What I find interesting is that the basics of “Obamacare” were being pushed by the Heritage Foundation before the Obama Administration came into power. What changed?

  71. 71
    Davis X. Machina says:

    Thank God there are clear-sighted people who realize that even now, we can still Kill the Bill. Sure, we need some help from some unsavory people, but when the stakes are so high, who can afford to be choosy?

    The path to an NHS/USA leads through Tony Scalia’s office, people. Why can’t you see that?

  72. 72
    General Stuck says:

    @Kay:

    The media and republicans are fixated on national polling for the sound bite to sound bite drama effect. When you look past that to swing states and the electoral college, it is a different story from the neck and neck meme. Obama is doing very well in that arena, and has swapped out several former swing states to now blue, with new SS’s in the republicans back yard. Bain capital is going to be huge. Romney has no credible answer to that in the rust belt states and elsewhere. Not when the bright light on the election comes on for most voters after Labor Day.

  73. 73
    Raven says:

    @Davis X. Machina: Like I said. . .

  74. 74
    JPL says:

    @slippy: IMO non legalese opinion, the court will protect Mitt but saying it’s a states right. In other words iokiyr
    Kay, Excellent piece btw.

  75. 75
    Davis X. Machina says:

    @General Stuck:

    When you look past that to swing states and the electoral college, it is a different story from the neck and neck meme.

    Sure is….

  76. 76
    Kay says:

    @MikeJake:

    was to craft an argument that would appeal to a majority of the justices.

    I think this is different than hackery. I often use conservative arguments to appeal to conservative judges (a particular magistrate, actually) but that’s based on his integrity, his adherence to an actual conservative idea. I know what he’ll do because he’s done it before. Amar is saying almost the opposite. He’s saying he cannot predict what they’ll do based on what has come before. He’s wandering around in the weeds. He may not have agreed with conservatives, but he could identify some guiding principles, some consistency. That’s just so important. Without that, one can’t write a law or plan a desired result.

  77. 77
    General Stuck says:

    @Davis X. Machina:

    Plus, I think Obama wins Ohio. Too much sour milk for Kasich, and gratitude for Obama saving the auto industry, and keeping Ohio in the statewide auto parts business.

  78. 78
    Valdivia says:

    Kay, as always you get tot he bottom of the issue and do so in a steely and clear eyed but common sense way. I know I sound like a broken record but thank you for doing what you do.

  79. 79
    JPL says:

    There are a few more cases being decided that are interesting. Will people of brown color be allowed to walk around without their birth certificate, long form of course, and is it legal to give the death sentence to a fourteen year old. Good times that these are even before the court.
    Now I’m going out to work in the sun shine, mowing and sweating.

  80. 80
    metricpenny says:

    The story concerning the elderly bus monitor in NY bullied by the middle schoolers, and the resulting public response once it was brought to light bothered with me in a way I couldn’t quite put my finger on.

    This post has finally shaken it loose. It is because it brought to mind how bullied the American people are by the conservatives, and how the conservatives have no qualms about doing so, even though you know they’ve been raised better.

    The disheartening part is that the one branch of the government that should be the shield for Americans against this torment has joined up with the tormentors.

    The bullying is exposed and relentless, but not one institution in this country is left to offer us solace.

  81. 81
    shortstop says:

    Wow, reading this thread, one could get the impression that lawyers have a variety of opinions on this situation. But we know that can’t be true, because our three constantly butthurt Self-Designated BJ Attorneys are always telling us that what they think is what all legal minds believe.

  82. 82
    David in NY says:

    @slippy: @JPL: [re whether opinion would invalidate teh Massachusetts mandate] Sorry. The system is — states can do anything the Constitution does not forbid, but Congress must have a specific grant of power in order to do something. So there’s nothing in the Constitution that forbids a state doing a mandate (well, maybe Scalia could decide that forcing people to buy broccoli, or insurance, violates substantive due process, but that is several orders of magnitude beyond where the debate is now, and is totally crazy — after all, states can make people buy car insurance). But the question is whether the Commerce Clause permits Congress to impose the mandate, that is, force people who are not engaged in commerce to engage in it. That argument has no application to the states.

  83. 83
    David in NY says:

    @shortstop: Oh, can it.

  84. 84
    Kay says:

    @General Stuck:

    keeping Ohio in the statewide auto parts business.

    :)

    Kasich is pathetic. He wasn’t even a good Fox News personality, which has to be the easiest fucking job on the planet. I have no idea why Murdoch promoted him to governor of Ohio.
    He’s running around bragging about the economy improvement while simultaneously trashing Obama. He’s incoherent. Just babbling.

  85. 85
    Davis X. Machina says:

    @David in NY:

    That argument has no application to the states.

    Nor did it occur to anyone to make it at the federal level, until 18 months ago.

    What happened?

  86. 86
    shortstop says:

    @David in NY: Nonsense. We should actually be hearing a lot more from YOU; I wish we did.

  87. 87
    Odie Hugh Manatee says:

    @shortstop:

    You trying to give me homework? Homey don’t play that game. Read the history and draw your own conclusions, I have done so and have given mine.

    So go do your own homework. :)

  88. 88
    Xenos says:

    @JPL: Of course states have the power to mandate, but if Romney wins the main policy goal will be to allow interstate sales of insurance. So the best you can do with your Massachusetts mandate will be the Louisiana special. Good luck with that.

    The whole issue about the mandate and the Commerce Clause is just misdirection. The mandate is just the constitutional handle to get cert on the law – the only goal is to clear out all the regs that the insurance companies capitulated to in return for the mandate. No Republican constituency is served by severing the mandate, so we have nearly 100% certainty that all federal regulation of health insurance, not just the ACA, will be eliminated by the USSC decision.

    The one-two punch of overturning the ACA and then Romney winning will be the end of all effective regulation over the health insurance industry. No federal regulation left, and state regs will only apply for those insurers who are state citizens. And future Congresses will be unable to reregulate due to some bizarre new theory that Roberts and Scalia will come up with.

  89. 89
    Cacti says:

    @Chukwu:

    For starters, the Court invalidated several of Teddy Roosevelt’s Progressive reforms at the turn of the twentieth century, and was again hostile to the initial laws of the New Deal. You can actually make the case that the Supreme Court of the mid to late 1900s was an aberration in not carrying water for plutocrats.

    And of course, the high court is the same august body that gave us such decisions as Dred Scott v. Sanford, Plessy v. Ferguson, and Lochner v. New York, which respectively…

    Set us irretrievably on a path to civil war, and affirmed the principles of racial segregation and child labor.

    The Warren Court was a historical aberration.

  90. 90
    The Tragically Flip says:

    This hits on why the legal profession have been so loathe to admit: The court is run by movement conservatives who decide what the movement needs first, and then see what kind of half assed legalese they can justify it with second. Lawyers, constitutional law professors etc would really hate to admit this, because it makes their entire profession a sad joke. What you call “law” and hold up as a set of timeless principles is no little more than the sophistry used to justify the dictates of the rich and powerful. Perhaps it was ever thus, but I’m not prepared to go that far. We’re in the era of postmodern law. The law means what 5 current Justices say it means.

    Bush v. Gore was certainly the most egregious decision marking the downfall of whatever serious legal scholardom existed in the court’s majority, but we hit a new level with Citizens United.

    Not because of the ruling itself so much (though that’s obviously bad). To me, the most remarkable thing about Citizens United was Roberts ordering the case expanded beyond the scope of CU’s actual complaint. I heard they just did the same thing again on that union case yesterday. It’s a new thing to pick cases and then expand them willy nilly so that movement conservativism can strike down whatever laws have been targeted for removal. No one even needs to complain about them even, they’ll just take a related case and make it about whatever they want to strike down.

    All that crap conservatives spout about judicial tyranny is actually of course projection. Standing was supposed to be the big limit to judicial power – they can only rule on what’s before them. No more.

  91. 91
    shortstop says:

    @Chukwu: @Cacti: Our misfortune to have been born in an era that created in us such unrealistic expectations?

  92. 92
    Omnes Omnibus says:

    Well, I am glad to see my views match those of a real Constitutional scholar. I still see it as 6-3 to uphold. Both Kennedy and Roberts have an interest in legacy. If this decision is 5-4 striking it down, their legacy is set – and not in a good way. I know some of you are going to argue that they just don’t care and you may be right, but I don’t think so.

  93. 93
    magurakurin says:

    @Davis X. Machina: I think Ohio will be blue and Florida red, giving Obama 303 EV’s and the win. The angry old white people vote combined with Scott’s cheating will probably turn the Sunshine state red.

    But like I have said before, until Nate Silver tells me Obama is likely to lose Virgina, I see no way for Romney to win.

  94. 94
    Cacti says:

    @shortstop:

    Our misfortune to have been born in an era that created in us such unrealistic expectations?

    So it would seem.

  95. 95
    Kay says:

    @Xenos:

    No federal regulation left, and state regs will only apply for those insurers who are state citizens.

    This. I think the most troublesome part of this is listening to people who think the health care insurance system can’t get worse, so we go back to status quo and stay there. It can. It can get much, much worse. It can turn into the credit card industry.

  96. 96
    Mark S. says:

    @shortstop:

    So can you give some examples of court “low points” that match the current one and allow us to see this as an outlier rather than a steady trend?


    The Lochner era
    . It was like having seven Fonzis of Freedom on the Court.

  97. 97
    Cacti says:

    Also too, the fact that Boehner is circulating this memo to innoculate himself from criticism, leads me to be believe that PPACA is going down.

    Ruth Bader Ginsberg’s speech the other day on the “importance of dissents” also makes me think the result is hiding in plain sight.

    5-4 party line vote from our third political branch of government.

  98. 98
    Johannes says:

    I’m pretty much hitting the Amar line myself, now–not on the prediction, because these guys are so lacking in any principle, as yesterday’s Knox decision showed, that no prediction seems possible, as anything is equally plausible. No, I’m with Amar on the increasing sinking feeling that all the passion I’ve poured into the law as a student and as a practitioner was the expense of spirit in a waste of shame. Good times, SCOTUS. Thanks a lot.

  99. 99
    HeartlandLiberal says:

    I fully expect the narrow margin that will strike down the mandate and much of the law.

    Why? Simple.

    This is the Supreme Court majority that the far right, the GOP, and the corporate oligarchy have been working on putting in place for two decades. They have paid their money. They have bought their court. And they, along with the Federalist Society, fully expect to get a return on their investment.

    The election of Bush was the first installment. Now the the real payouts begin.

    The law simply does not matter to these people. They will interpret the law to suit their goals.

    When you have members of the court who attend functions hosted and paid for by the Koch brothers, at which they openly plan this defiant course of conservative judicial activism, openly, and with total disregard for even trying to maintain the appearance of neutrality expected of a member of SCOTUS, what the h*ll else do you expect?

    End of story. Game over. The oligarchy has won.

  100. 100
    Cacti says:

    @Kay:

    This. I think the most troublesome part of this is listening to people who think the health care insurance system can’t get worse, so we go back to status quo and stay there. It can. It can get much, much worse. It can turn into the credit card industry

    Yup.

    The Republican non-solution will be a national race to the bottom, where we’re all buying our health insurance from Mississippi or Wyoming.

    And tort reform. Can’t have the hoi polloi clogging up the courts of their betters.

  101. 101
    Omnes Omnibus says:

    @Mark S.: Harlan and Holmes are the only reason that Court has any intellectual reputation at all. Of course, most of their most brilliant writing was in dissents.

    The Taney Court was no great shakes either.

  102. 102
  103. 103
    The Dangerman says:

    I see a lot of 5-4 calls and a few 6-3 calls.

    I’m calling 7-2 upheld (Thomas and Alito being the odd ones out); I don’t think the court wants the shitstorm that will come their way with their fingerprints all over the murder weapon (now, pardon me while I go mix up a a few more metaphors).

  104. 104
    Triassic Sands says:

    @Scott S.:

    …the Roberts court is bought and paid for by the GOP.

    I’d agree except the conservatives on the court aren’t prostitutes; they’re giving their services away free of charge.

    If, despite his past opinions, Scalia votes to save the American people from mandatory broccoli, he won’t be voting to please the Orange Boner or Paul Ryan or Mitt Romney. On the contrary, Scalia’s vote is his own; he’s simply voting to impose his own political philosophy on the rest of the country. The same goes for Thomas and Roberts. Alito’s agenda seems to be more of a combination of his conservatism and his Catholicism, both of which seem to control his votes. He seems to me to be directed by his religion more than any justice I can remember.

    I don’t know about Kennedy. Maybe, on decisions like this, Citizens United, and Bush v. Gore, i.e., the really big ones, he’s simply scared to cross Scalia and Company.

    If Bush v. Gore were the only black mark on the conservatives of the Supreme Court, Akhil Reid Amar might have a point. Unfortunately, time and again the conservatives have played out their political ideological fantasies in grotesque decisions. The most obvious, Citizens United, was every bit as outrageous as striking down the mandate (or the entire PPACA) will be (should that happen), except that the health decision follows Citizens United and thus, gets piled on top, probably making it look even worse. In fact, I think the only hope the health care bill has is how blatantly political a 5-4 decision against it will be. It’s not that I think Scalia or Thomas gives a rat’s ass about their reputations (or that of the Court, which I’m sure Scalia feels is defined by his very existence magnificence) among liberal law scholars and historians. But maybe, just maybe, Roberts will blink. He didn’t sound like it during the oral arguments, but asking hostile questions doesn’t get recorded in history the way a negative decision will be. He’s going to have to vote to reverse many decades of legal reasoning and decisions, deny tens of millions of Americans any chance at health insurance (anytime soon, and maybe ever), and once again reveal the current Supreme Court to be nothing more than an arm of the Republican Party. As Chief Justice, Roberts is the one whose name will forever be tied to this decision — it won’t be Tony Scalia or Rasputin Thomas who shot down health care reform, it with be the Roberts Court. Does he care? In his thoroughly dishonest (would disingenuous be more polite?) Senate testimony, he sounded like he did care. But the proof is in the (eating of the) pudding, and his voting record runs counter to his testimony.

    In a further effort to convince myself there is any hope of the PPACA surviving (with the mandate gone, Obamacare, for practical purposes, will, in my mind, be gone too), it also occurs to me that by voting to uphold the law, Roberts could help insulate himself for the rest of his career from accusations that he’s nothing but a political hack.

    That said, the one thing that really distinguishes today’s conservatives is their lunacy and the insane aren’t likely to be bound by rational thought or even self-serving consideration of abstractions like reputation.

  105. 105
    Barry says:

    @smintheus: “Bewildering that anybody could study SCOTUS and still deny to himself that it’s overtly politicized and ideologically rigid. There’s a long list of repulsive rulings that you can’t argue away, all of them favoring the powerful and well connected.”

    Because, as the man said, then it’s not about law any more; it’s just politics.

  106. 106
    Kay says:

    @Davis X. Machina:

    Sure, we need some help from some unsavory people, but when the stakes are so high, who can afford to be choosy?

    I absolutely hate the liberal argument that people who buy insurance under the mandate won’t use it, therefore it is a “boon” for insurance companies.

    Do they realize how completely incoherent this is? Liberals have spent 30 years saying people are going without medical care because they don’t have insurance. Now they’re arguing that people who are uninsured won’t use health insurance under the mandate. What is this based on, anyway? The people I know who don’t have health insurance would use medical services if they could afford it.

  107. 107
    ET says:

    Republicans – politician or no – will not be able to resist “spiking the ball” or any other celebrations. The can’t help themselves.

  108. 108
    Davis X. Machina says:

    @Triassic Sands: I don’t think it’s petty partisanship. I think it’s grandiose partisanship.

    A clear case of Salus populi, suprema lex. The return of all three branches of government to legitimate (i.e. Republican) hands, and insuring that they never leave those hands again, is far more important than adherence to some overarching jurisprudential theory.

    They’re saving the country, or the parts of it that deserve saving, even if it doesn’t want to be saved. They’re heroes.

    Everyone secretly loves crises — if they can’t actually damage you. High stakes. Great causes. Gives one’s life meaning.

  109. 109
    Xenos says:

    @Kay:

    It can get much, much worse. It can turn into the credit card industry.

    What good is a usury law if you can’t use it?

    Massachusetts still caps interest rates at 18% unless there is special notification for each loan to the AG office. The law is about as effective as the one forbidding ‘Indians’ from spending the night in Boston.

  110. 110
    Cacti says:

    @ET:

    Republicans – politician or no – will not be able to resist “spiking the ball” or any other celebrations. The can’t help themselves

    Nothing brings them such unmitigated joy as the thought that somewhere, someone they disapprove of is suffering.

    Poor, female, black, hispanic, gay, non-christian? The Republicans hope you all fuck off and die. It’s their country, not yours.

  111. 111
    Kay says:

    @The Dangerman:

    Anyone who makes a call ( 5-4, 6-3, etc.) gets all credit from me, because I won’t. Good for you for being confident enough to write it down.

    Plus, I hope you’re right, AND I’m (actually, truthfully) always ridiculously optimistic until the second I lose :)

  112. 112
    p.a. says:

    As I wrote in a SCOTUS thread a few days ago, of course they’re going to overturn; THAT’S WHAT THEY’VE BEEN BRED TO DO- IT’S IN THEIR DNA. They can no more let ACA stand than pigs can fly.

  113. 113
    Cacti says:

    @Barry:

    “Bewildering that anybody could study SCOTUS and still deny to himself that it’s overtly politicized and ideologically rigid. There’s a long list of repulsive rulings that you can’t argue away, all of them favoring the powerful and well connected.”

    Mr. Chief Justice John Marshall would have laughed his arse off at the idea that the SCOTUS wasn’t politically motivated.

    He would have laughed even harder at the thought that he owed some great deference to the original intent of the framers, who were his historical contemporaries.

  114. 114
    Davis X. Machina says:

    @Kay: You’re looking at this from a policy perspective. You have to look at it from a marketing perspective. And from a representational perspective.

    Ask yourself, “How would I look among my friends, how would they perceive me, if I adopt position X, or support candidate Y?”.

    If you could go down to town hall and register to vote, declaring “Carhartt” or “Rag + Bone”, instead of “Democratic” or “Republican” the clerks wouldn’t ever get to go home.

  115. 115
    Barry says:

    @Omnes Omnibus: “Both Kennedy and Roberts have an interest in legacy. ”

    You’re assuming that Roberts will not count moving the country to the right as a worthwhile legacy.

  116. 116
    Omnes Omnibus says:

    @Kay: What is starting to kill me is the pre-anguish. This really is a huge decision; this Court, in my opinion, has been a pretty standard right-wing Court. I don’t like many of its decisions, but I can understand them. I really cannot understand how a majority of the Court could decide to overturn this law. If they do, I will be a lot more receptive to the arguments that the five on the right are all nothing more than hacks. That being said, there is no decision yet, and the people who are already rending their garments are getting to me.

  117. 117
    The fake fake al says:

    @Schlemizel: Completely agree, remember, everything any member of the GOP does, including SC judges, is designed for one thing, take down The One. Striking the mandate and watching the disaster is a Karl Rove wet dream.

  118. 118
    Barry says:

    @The Dangerman: “I’m calling 7-2 upheld (Thomas and Alito being the odd ones out); I don’t think the court wants the shitstorm that will come their way with their fingerprints all over the murder weapon (now, pardon me while I go mix up a a few more metaphors).”

    After Bush v. Gore, Citizens United, and this latest case which castrated unions?

  119. 119
    Davis X. Machina says:

    @Barry: That was a pretty obvious troll for cert petitions, wasn’t it? Not so much the decision in the instant case, but the transparent ‘Hey, if you guys ask, using this particular magic formula, we’d be happy to make the whole country right-to-work…’

  120. 120
    Valdivia says:

    @Steeplejack:

    don’t know if someone already gave you an answer. I am looking for it.

  121. 121
    Kay says:

    @Omnes Omnibus:

    What is starting to kill me is the pre-anguish.

    I figured, and usually I would be right there with you, but you’re going to have to indulge me, because this is my standard practice when waiting for a decision. This is my process, Omnes:)

    I don’t do any post-anguish once it’s over, so I’ll spare you that.

  122. 122
  123. 123
    Omnes Omnibus says:

    @Kay: Fair enough. I try not to panic until absolutely necessary; we all do things our own way.

  124. 124
    tamied says:

    @Mark S.: Golly, that sounds awfully familiar.

  125. 125
    Mark S. says:

    @Omnes Omnibus:

    I don’t know, I think the Roberts Five are mostly hacks, but I also think the individual mandate is at least questionable. I’m not sure Wickard was correctly decided, nor am I a big fan of Raich. I think the Commerce Clause should be broad, but that doesn’t means Congress can do whatever the fuck it likes.

  126. 126
    Omnes Omnibus says:

    @Mark S.: I see the mandate as well within the power to tax.

  127. 127
    David in NY says:

    @Davis X. Machina:

    What happened?

    Others (Ezra, Drum and more) have written lots of good stuff on this lately, but I was most interested in Drum’s recent post giving Ilya Somin’s weird view that the level of partisan opposition to a law can make arguments for its constitutionality weaker. Yikes! The old crack about the Supreme Court following the election returns has become, according to conservatives, constitutional doctrine!

    Just shoot me now.

  128. 128
    David in NY says:

    @shortstop: Thanks, since I see no close snark tag. In defense of other lawyers, let me say that lots of people have misconceptions about how the law or courts work, and some folks are better than others at explaining things without being snippy. The kind of thing I suppose you were reacting to.

  129. 129
    Mark S. says:

    @Omnes Omnibus:

    I think that’s a pretty strong argument. Then we need to wait until 2015 for anyone to have standing to challenge that tax. And I think the government has a really strong argument.

  130. 130
    Xenos says:

    @Mark S.: As for Wickard, the farther you go into the facts of the case the more defensible it is. Wickard was not eating the grain himself, he was feeding his hogs with it and getting around regulations that had saved much of the agricultural sector from collapsing. This was not some abstract theoretical exercise in interpreting the shadows of the penumbras, but a case where allowing an exception really could have led undermined a law that was very necessary and proper.

    But it is dead easy to summarize Wickard in such a way that makes it sound ridiculous, and dishonest people do not hesitate to mischaracterize it. So there is substantial confusion out there about what it means.

  131. 131
    Ruckus says:

    @Omnes Omnibus:
    Just in case it is not painfully clear IANAL. That said I think part of what many of us see is that a good portion of the court is not acting like good lawyers any more than I am.
    A senior partner in a large firm once told me that a good civil verdict was one where both sides suffered equally. Not sure that that ideal applies to the SC but we seem to be getting only one sided results these days and not for any good legal reasoning.

  132. 132
    shortstop says:

    @David in NY: That’s the only thing I was reacting to. I am interested in every attorney’s opinion of how this is unfolding, whether they’re calling it 7-2, 6-3, 5-4 or refusing to call it at all–when their interest is clearly in the case or the process. When their primary focus is continually appealing to their own authority while studiously ignoring the fact that many other attorneys are reading things differently, I’m less than edified.

  133. 133
    dww44 says:

    @General Stuck: Well, here in the middle of this totally red deep south state, we have some of the cheapest prices in the entire state. Already, many stations are selling gas at $3.03 or $3.02 a gallon. Barring any major crisis, I think we will go under $3.00 sooner rather than later, Maybe not by July 4th, but perhaps soon after.

  134. 134

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  135. 135
    Zach says:

    I’m currently in law school. It has basically taken away any respect I had for the law. I mean, I’ll still obey, but really the nobility it tries to present is stupid.

  136. 136
    David in NY says:

    @shortstop: I’m old enough and have been wrong enough to get all dogmatic about legal stuff, at least beyond the mechanics that people sometimes misapprehend where there is often just one right view. I’m currently in pre-depression about next week’s probable earthquake, prompted by the initial tremor of the terrible SEIU case yesterday.

    On the other hand, the criminal justice cases (my field) yesterday were great! But hardly of much moment, compared to gutting unions and access to health care. (I mean, to how many people does it matter whether the size of a fine is a jury question or not?)

  137. 137
    Omnes Omnibus says:

    @David in NY: Actually, I think the idea that there is just one right view is what has gotten some lawyers so exercised.

  138. 138
    David in NY says:

    @Omnes Omnibus: Being able to see both sides is a lawyerly trait, if that’s what you mean, though it can exasperate non-lawyers.

    Off topic, serious weather over NY Harbor and Brooklyn — just got a lightning bolt in my right ear and can’t see more than a couple of blocks out the window.

  139. 139
    Barry says:

    @David in NY: “Others (Ezra, Drum and more) have written lots of good stuff on this lately, but I was most interested in Drum’s recent post giving Ilya Somin’s weird view that the level of partisan opposition to a law can make arguments for its constitutionality weaker. Yikes! The old crack about the Supreme Court following the election returns has become, according to conservatives, constitutional doctrine!”

    Every so often, people slip a bit, and reveal their true motives and morals. Michael Kinsley defined a ‘gaffe’ as when somebody says what they really think, and this was a true gaffe.

    I think that it’s what we’re seeing a lot of on the right – they’ve decided to both drop the pretense of moderation, and the moderation itself.

  140. 140
    shortstop says:

    @Omnes Omnibus: That would be pretty hypocritical of the ones who keep insisting that there’s only one possible way this could go down, wouldn’t it?

    @David in NY: Should make for an interesting Friday commute. Stay dry and out of unfettered electricity’s way.

  141. 141
    Omnes Omnibus says:

    @shortstop: Speaking only for myself, I have made my predictions based on analysis of the arguments and my knowledge of the justices’ previous stances and known priorities. Of course, I know that other results are possible, but I think they are unlikely. Quite frankly, from a purely legal point of view, I think this is one of the most lopsided cases to come up in a long time. I really figured that the Court took this case simply to resolve the split between Circuits. The fact that there appears to be so much doubt about the outcome continually surprises me.

  142. 142
    General Stuck says:

    This blog is full of assholes who think they are right, and moi’ is not exempt from this category. The question is, does the argument people are making make sense from a sense of history and boundaries of what is normal and not.

    Even with Bush v Gore, and Citizens United, the arguments that lawyers like eemom and burns make, as well as Omnes, fit squarely within this equation. The fact that they are unsparing in defending this paradigm is a subjective matter. I haven’t heard any of them say for certain, the SCOTUS will rule for the ACA because they say so. Only that by the boundaries of legal norms, they should uphold the ACA

    While i agree in theory with Mr. Cole and others, that we are generally outside those bounds of history for a supreme to rule within. In the department of cold hard facts, as to date on the ACA, it is they (the lawers of derision on BJ) that have the prima facie case, to date.

    The rest of us are using our intuition, and general decision making of an increasingly right wing movement to the extreme with the supreme court not exempted. What they are saying is that the court has not yet crossed that rubicon. Though I disagree in another sense of cases this court has expanded the argument on its own to do some very specious shit, like with CU, and some other cases.

    So who is the first asshole on BJ to cast the first stone against fierce argument for the plausible, if not likely position of things as they have been? Not me. And it is laughable the claim that folks believing in an uncorrupt supreme court, are somehow bowing to authority on a blog. Where there is only one authority with any authority, and that is its owner. The rest, within noted exceptions for legal free speech, is nothing more than wanking into the ethers.

    So the opposite is true. imo. People who stand up to the powers that be in the room we occupy, are the ones standing up to any meaningful notion of authority. And so long as it comes from substantial place on an issue, I respect that more than getting on the fapwagon of groupthink.

    I like nuance, and try never to leave home without it, when it is relevant to a fuller description of things, and appreciate those who bring it forward, when others don’t want to hear it. I don’t agree always with anyone here, but I respect the effort put into honest argument. And think what you will about eemom, this is what she does, if not in the queen’s english. Intellectually Lazy bloggers and commenters don’t impress me much. Folks who take a contrary stand to whatever authority exists in a given venue, in this case a blog, does. Even if delivered by assholish rhetoric.

  143. 143
    grandpa john says:

    @redshirt: A president Gore would not have ignored the August intelligence briefing warning, he would have acted in a way that covered his ass as well.

  144. 144
    grandpa john says:

    @General Stuck: @General Stuck: RCP lists 17 polls taken in Ohio this year, only 3, 1 rasmussen , 1 fox and 1 purple strategies which Is a new kid on the block, have had romney in the lead. Until there evidence of dramatic change in Ohio, it would appear that Oh is in the Obama column.

  145. 145
    Less Popular Tim says:

    @Culture of Truth:

    Court reporters are unusually good.

    That’s because they have those cool little steno machines with only 20 keys and the little strip of paper spitting out the top

  146. 146
    grandpa john says:

    @dww44: here in SC we are already under $3.00.

  147. 147
    fuckwit says:

    The nihilistic punk rocker that still lives in me says, “FUCK THESE CORRUPT INSTITUTIONS, THEY FAILED, LET THEM CRUMBLE!!” Then the 46-year-old dad in me says, “Uh, wait a minute, if the institutions crumble, and people don’t have faith in them anymore, then what takes their place? What maintains order? How do people resolve conflicts where there is no rule of law? How would society function?”

    Not to say I’m becoming a conservative– or, worse, a Village Broderist!– but I do have some sympathy for the people who are scared shitless of institutions crumbling. I don’t really want to live in Somalia, or Singapore, and those are pretty much the only choices once these corrupt institutions fall, as it seems they are in a great big hurry to do.

    It’s not weak at all to want to try to save them, or to worry about people’s loss of faith in them, and what comes after.

  148. 148
    dww44 says:

    @grandpa john: Wow, that’s great. Are you Upstate? on the Coast? the middle of the state? Just curious.

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