Thought this editorial was interesting:
THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.
But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
***Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.
Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.
Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
Am I the only one who read this and thought what Lawrence Tribe is really saying is: “Listen, Antonin, Sammy, John, and Clarence. You pull any of that Bush v. Gore crap and I and others will make sure that history will not judge you clowns well. Verstehen?”
Phoenician in a time of Romans
Except for the certainty that if the decision DOES split on partisan grounds, the NYT editorial page will be right behind selling it to the masses as a principled decision.
Davis X. Machina
Tribe has not absorbed the new outcome-based jurisprudence into his world view….
mofo
Tribe’s dreaming. Scalia, Alioto & Roberts will do whatever they think will endear them to the TeaBaggers. No legal analysis, no examination of precedents or past positions, can alter the inescapable conclusion that they are feckless frauds.
Paul in KY
Scalia bring his integrity into question by ruling in a way that screws a Democratic President/would be President?!
Perish the thought!
OT edit: Had a great Wisconsin beer other night while watching SB. It is called ‘Fat Cat’. very nice brew.
Poopyman
I’m thinking that at least 2 of those 4 don’t give a shit about what history will think.
Angry Black Lady
Oh Larry. Always the idealist.
Angry Black Lady
If it is such a split vote, the court is going to lose a lot of credibility with reps and dems. i’m just hoping they do the right thing. if they don’t, i’m going to be depressed.
DougJ®
I’ll believe it when I see it.
Barb (formerly Gex)
@Poopyman: You put the low end all the way down to two?
KJ
I think that’s an indirect result of what he is doing. I think the primary thing he is doing is educating folks on the long line of precedents underlying the Court’s interpretation of the Commerce Clause and making clear how the two opinions invalidating the law steers away from that precedent. I’ve found it intriguing in BOTH cases, that instead of conducting a two part analysis ((1) does Congress have the power under the Commerce Clause to regulate health care and (2) if so, is the use of the individual mandate necessary and proper to the exercise of that power)), they’ve largely conducted a compressed analysis (does Congress have the power under the Commerce Clause to require individuals to purchase private insurance). It is this bastardized analysis, IMO, that has permitted them to reach their respective conclusions. And frankly that is the only way that I can see the Supreme Court finding this law unconstitutional.
p.a.
@mofo: Beat me to it. This is the right wing justices’ “You know what you have to do, cowboy” moment. No way they let this stand.
But good on Tribe for firing a preemptive shot across the bow. But after Bush v Gore none of these scumbags care about their image in posterity; it’s already set.
fourlegsgood
Clearly it’s an appeal to their intellect and common sense, so I agree with you that it was a shot across their bows, as well as an appeal to their better legal natures.
Whether it will work or not, well, I’m not willing to make a prediction. I thought Bush v. Gore was open and shut too.
Belafon (formerly anonevent)
I personally expect Kennedy to uphold it. As for the other four, this is the one time where I do think that if any of them side with the law it will be Scalia. The likelihood of the other righties voting for it are in order:
Roberts
Alito
Thomas – if he were to vote for it, I would start looking for the four horsemen.
Poopyman
@Barb (formerly Gex): I’m not one to stick my neck out.
I actually think Roberts does care. Sammy the Shiv and Uncle Clarence, not so much.
El Cid
I agree completely that to the extent I fear that a conclusion of the un-Constushal nature of the Stalin Hitler Health Killing Act may occur (I said ‘fear’, and ‘may‘), it is the result of crude political thinking and not a result of a review of Fat Tony’s judicial activities.
Guster
@p.a.: Yeah. And frankly, did anyone take a reputation hit on Bush v Gore? O’Connor was subjected to a really brutal … well, hagiography, when she retired.
Napoleon
John, you are exactly right. That is what he is doing and it is a smart strategy.
agrippa
I have no trust in the judgement of Roberts, Scalia, Thomas. It remains to be seen whether they will make a decison based upon the law; or, a decision made upon political expediency.
I hope that they are lawyers and judges first and politicians second.
Davis X. Machina
@Belafon (formerly anonevent):
If someone were to pay his wife for him to vote for it…?
catclub
@Poopyman: This.
Half those guys were pilloried for Bush v Gore and clearly don’t give a damn. The new ones: Well, Roberts promised to call balls and strikes and instead is throwing spitballs,
so I don’t think Lawrence Tribe and the opinion of history carries a lot of weight with them. Sam Alito is not called Scalito for nothing.
Barb (formerly Gex)
@Poopyman: So you hold out on the possibility that Scalia cares? :-)
joe from Lowell
I’d just like to take this opportunity to say that I don’t believe there is even the slightest reason to insult Scalia’s intellect.
And that’s all I have to say about that.
eemom
well, it’s good to see all you Supreme Court experts are as dismissive of Laurence Tribe as you were of us rank and file lawyers last week.
I’m sure you’re right. After all, who’s Tribe? Just an Ivy League egghead elitist. He knows NOTHING about politics, much less the complex interplay of politics with Supreme Court jurisprudence.
mofo
@p.a.
Plus….added bonus….what better place for them to advance their long-cherished dream of a Return to Lochner than in a case where there is a tangible public divide (regardless of the exact breakdown of for-against in the polls, it’s clearly tangible with the public at large) and where Fox & Friends will cover their backs in selling to the public the idea that a dramatic limitation of the Commerce Clause is long overdue? Easier to do it here as opposed to, lets say, a sanctity-of-contract challenge to child labor laws, or some esoteric (to the masses, anyhoo)
regulatory challenge.
Tribe is truly living in a bubble, though if it’s a shot-across-the-bow, Bless His Heart for trying.
Barb (formerly Gex)
Yikes. Someone doesn’t like the joking around.
Glenn
John, I think you’re right that’s what Tribe thinks he’s doing, but I think he is the one who will find that he really doesn’t have the clout anymore to carry out his threat. There is no way that Alito, Scalia, or Thomas give a damn what Tribe thinks.
JChan
@Poopyman: Why do you think he cares?? Seriously asking.
4tehlulz
@Poopyman: I’m inclined to agree, which is why I think ACA will be upheld by at least 6-3 (could be 7-2 if Scalia votes with the majority, which he might).
Keith G
@Belafon (formerly anonevent):
Thanks for the chance to laugh.
I have no intellectual insight on which to base a guess. Were a gun put to my head, it seems that ACA being upheld is more likely. There is a rational “If we do this what comes next” argument that may have impact on just enough of the conservative flank even if precedent does not.
Except for Thomas.
eemom
I can’t fucking believe this.
Do you have ANY idea how stupid this is?
Punchy
Altered for what we all suspect is exactly what they’ll do.
Poopyman
@Barb (formerly Gex):
More that he’s so full of himself that he’ll be on the right side of history no matter which way he goes. ‘Cause he’s just right, dammit!
John Cole
@eemom: Enlighten us then, sunshine.
DougJ®
@eemom:
Dahlia Lithwick and Ezra Klein say the same thing as what I said.
DougJ®
@eemom:
Don’t you think that is Tribe’s point here? Trying to preemptively criticize a decision that strikes ACA down?
That certainly seems like the point to me.
stuckinred
If you’re looking for trouble
You came to the right place
If you’re looking for trouble
Just look right in my face
I was born standing up
And talking back
My daddy was a green-eyed mountain jack
Because I’m evil, my middle name is misery
Well I’m evil, so don’t you mess around with me
Poopyman
@JChan: Well, he’s stated it explicitly, not that that really matters when push comes to shove comes to vote. And it’s just that if you know the court as a whole is going to go down in history with your name on it, well, you might care more than the others.
Ash Can
I think it makes Tribe sound a bit naive. I agree with him, of course, and am glad he’s speaking out about it, but I don’t see it having any influence where it matters the most. I doubt the SCOTUS wingnuts give a crap about what he or any other non-RW pundit says, or how history judges them.
scarshapedstar
,,,what’s his point?
Stillwater
It was clearly a shot across the bow, but I think the target was tempering some of the OUTRAGE that this bill is clearly UNCONSTITUTIONAL. I mean, he really can’t believe his pronouncements will affect the decision-making of Justices already familiar with the law, can he?
eemom
@John Cole:
I tried repeatedly to do that last week, only to be repeatedly told that legal issues don’t matter a bit to how the United States Supreme Court is going to rule on one of the most extreme challenges to one of the farthest-reaching Constitutional doctrines in American history.
Not to worry though — as DougJ pointed out last week, you’ve got the emmessemm on your side.
El Cid
You people who think you’re so smart are all going to be sorry now.
It was about time somebody was ready to put Conservapedia in magazine format.
And in completely different, totally and utterly unrelated news, there’s this.
One more victory in the race to purify our natural bodily fluids.
aimai
I think this was written on a sort of Heisenberg Uncertainity Principle that perhas the observer can affect what is going to happen. Or it might be that Tribe thinks you catch more flies with honey than with vinegar. I think you can catch them any way you want but a two by four is better than kiss for getting your point across. Of course, in legal speak, maybe this article is a two by four.
aimai
mofo
@Stillwater:
“the decision-making of Justices already familiar with the law”
familiarity breeds contempt, no?
Barb (formerly Gex)
@Poopyman: I buy that. It makes a lot of sense, given how driven he was to get to where he is now. Didn’t he basically have to pretend to be moderate his entire life up to the point he was appointed?
Kryptik
@ABL – The problem here is that this ruling, however it goes, will result in a big loss in credibility. The only issue is who they decide are important enough to appease and whose credibility they are willing to sacrifice
mr. whipple
OMG…falling over laughing.
Violet
@DougJ®:
Seems like the point to me too. He’s trying to act preemptively in the hope of getting the SCJs to act like the judges they are and not partisan hacks.
I’m not holding my breath.
JWL
I stopped reading at Scalia and integrity. What planet does the author live on?
eemom
@DougJ®:
far as I know Klein isn’t a lawyer.
Dahlia Lithwick may be a lawyer, but she’s an idiot. We’ve got plenty of those in this profession too.
I don’t know what, if any, goal Tribe is trying to accomplish, and frankly I don’t see why you geniuses all assume he has one. He is one of the most famous living Constitutional scholars, so it’s hardly surprising that he would offer his opinion on something like this, just, you know, BECAUSE.
I can tell you one thing though — he is no way trying to “threaten” the Justices with what he might do to their legacy if they don’t rule like he wants them to. That is 100% proof moronicity.
A Commenter at Balloon Juice (formerlyThe Grand Panjandrum)
Difficult to know for sure what Tribe’s motivations were to write this piece. I don’t know if he genuinely believes these guys will be consistent in their decision making or not. It is quite possible this is preemptive scolding on his part but I’ll give him the benefit of the doubt and take him at his word.
Face
@eemom: When you show us a case you expect to be judged on merits of the law, perhaps then we’ll listen to you. Only the very niave really think law and past precedent will have any influence over what will be an ridiculously overt political ruling.
I fully expect Thomas’ dissent will simply say “those fucking libtards can kiss my ass”.
Cant wait to see if a Republican judge kicks it before this hits the USSC. Wanna see a REAL judicial nominee brawl?
theconstituent
I’m pretty cynical, but I don’t know if people realize just how big a deal it would be if the Court finds the ACA unconstitutional. I don’t see anyway they can do it without overturning Heart of Atlanta Motel and Katzenbach v. McClung; maybe that’s what they’re going for though….
geg6
@fourlegsgood:
THIS.
I have quit trying to parse what SCOTUS may decide in any particular case. I was so completely sure that Bush v. Gore was so ridiculous as to be laughed out of any court, let alone the SCOTUS, that I went around crowing to all my friends how glad I was that the Court was gonna take the case and smack that whole “let’s not count votes” thing down. And I’m pretty well educated in the area of SCOTUS decisions and the politics involved (during undergrad, SCOTUS was a bit of an obsession, mainly because I still thought I wanted to be an attorney). Well, we see how that turned out.
Good for Larry Tribe, though. Glad someone is putting some shots across the bow, even if it doesn’t really change anything.
stuckinred
@Face: Is there any other kind of precedent?
Bob
The only question Tony Toni Tone Scalia has to answer – Did the Founding Fathers have health insurance in mind when they penned the “necessary and proper” clause? Clearly not.
eemom
@Face:
You have no idea what the fuck you’re talking about.
harokin
Bush v. Gore was a bizarre and hasty panic driven decision. O’Connor later regretted it and I suspect she was steamrollered at the time by threats of incipient anarchy.
That won’t happen with ACA. Its implications are going to be fully thought out, debated, argued, considered. Snicker if you want but Scalia and Thomas will be alone, with Alito doing some deft fencesitting.
I applaud Tribe for reminding people that Bush v. Gore was not SOP. It is disturbing that so many media types just blithely accept that the supreme court is predictably partisan. It bothers me the same way conservative attacks on the CBO bother me.
kindness
Tribe has way more faith in Scalia’s ‘intellect and integrity’ than I do.
It isn’t Scalia’s (or any of the reichtwingnutz judges) intellect I question. I simply don’t think he (and the others) have any real integrity, that’s all.
kay
@A Commenter at Balloon Juice (formerlyThe Grand Panjandrum):
I think he genuinely believes it. If it isn’t true, it’s sort of terrifying, because it throws everything he’s devoted his whole career to into question. He believes, but he also wants to believe, almost has to believe, because the alternative is just unimaginable to him. If it isn’t true, all bets are off. He can’t rely on any of it.
But don’t let that scare you or anything.
John Cole
What I don’t understand is that if they nuke the ACA, don’t they also take down their war on drugs?
eemom
@harokin:
thank you
catclub
@eemom: “Am I the only one who read this and thought what Lawrence Tribe is really saying is: “Listen, Antonin, Sammy, John, and Clarence. You pull any of that Bush v. Gore crap and I and others will make sure that history will not judge you clowns well. Verstehen?”
You could be right that this will be taken as a dare and a threat to the manhood of the four justices named. Possibly not the best approach — if the goal is to give reasons to NOT overturn the entire ACA.
Stillwater
@eemom: Not to speak for John or Doug, but I presume that they understand the far-reachingness of the commerce clause. Yet, they still think some justices will decide based on politics. The question is: why do you think they are wrong?
mofo
@theconstituent:
Bingo! Step-by-step. Cynically viewed, ACA is a great place for them to start.
Don’t forget the losing arguments then are now tenets of the TeaBagging Faith.
catclub
@John Cole: True, if they don’t pull a Bush V. Gore and declare the ruling a one-off that is not to be followed in future cases.
Kind of a Mad Hatter/Red Queen image of what the Supreme Court was when precedents mattered.
Stillwater
@kay: He believes, but he also wants to believe, almost has to believe, because the alternative is just unimaginable to him. If it isn’t true, all bets are off. He can’t rely on any of it.
Bingo.
JGabriel
@John Cole:
Scalia will find some way to differentiate this decision from Raich. Adam Serwer suggest one route at The Plum Line.
.
kay
@theconstituent:
I think they’re starting to get it. You have to remember, conservatives had the floor to frame the question and answer it, with virtually no push-back from media, and once (the public) accepted the way they framed the question, it was easy to go the rest of the way. I was glad he mentioned Social Security.
I keep ranting about this, but this debate played out in the Rand Paul race. We lost, incidentally. Paul’s opponent did a beautiful job defending the commerce clause from conservative attack, but only Rachel Maddow knew what the hell was really going on there.
Mark S.
I think Tribe does a good job of striking down some of the more ridiculous arguments. Even Clarence Thomas isn’t going to strike this down because of the Commerce Clause, and the activity vs. inactivity argument sounds stupid to me as well.
The only remotely plausible argument is the mandate to buy private insurance:
But SS is still a government program, not a private one. That’s what I think the case will come down to.
burnspbesq
I’m still waiting for one of you chumps who thinks that precedent and intellectual consistency don’t mean shit to explain why I should buy into that theory. You’ve got one data point (Bush v. Gore) to set against 191 years of Commerce Clause jurisprudence. I say y’all are delusional. Convince me otherwise, if you can.
eemom
@catclub:
No no. That is not WHAT I think, that is what Professor Cole thinks. Please see #50.
I will also add, as I’ve said before, that even though I’m a lawyer I would never engage in this kind of bullshit prognosticating. Basically, you have to BE a Laurence Tribe in order to make anything remotely resembling an intelligent prediction of how the Court will resolve this case.
Face
@eemom: Of course I do. Please enlighten us to the strong, established legal underpinnings of what led to the Bush v. Gore, or Citzens United rulings. I’d love to hear what solid legal reasonings they used to justify ruling for Bush. Because clearly, there’s no way they’d just rule based on partisanship. Or something.
Stillwater
@catclub: True, if they don’t pull a Bush V. Gore and declare the ruling a one-off that is not to be followed in future cases.
That’s why I think the ACA is upheld. Until I hear a good argument that the conservative justices can make an argument so restrictive as to apply only to the ACA, without effecting other legislation, I keep believing.
El Cid
I assumed that the purpose of Tribe’s comments was to point out that he felt that arguments (or assumptions) about Scalia’s ruling of the Mao Tse Tung Grandparent Slaughtering Act as un-Constushull were without merit, shouldn’t be occurring in the public sphere, and made him personally irritated and bothered him.
I assumed that the target of his writing were those suggesting a likely anti-ACA ruling of un-C nature, rather than having any aim at the court itself.
Personally I think that’s the most likely case. But I always reserve the right to maintain a healthy degree of fear of potential momentary vindictive acts from right wingers at any time.
The Republicans could have had the votes to privatize Soc Sec or get rid of it altogether and replace it with vouchers for Super Size Big Gulps, but the effort went pretty much nowhere. At least, so far.
Never say never, at least not in political affairs. A comet or asteroid of stupid can always appear without warning and bring with it devastation, no matter how astronomically tiny the odds given current observations of what’s out there.
burnspbesq
@JGabriel:
I love Greg Sargent, but on this issue he’s wrong, and you know as well as I do that he’s wrong. Scalia’s ego won’t allow him to (a) admit that he got it wrong in Raich or (b) do something he knows is unprincipled, and there is no principled way to distinguish the cases.
kay
@Stillwater:
It was sad for me to read, because I, too, want to believe.
You sort of have to, really.
Steve V
I think Tribe’s being fairly naive here. Rolling back the commerce clause is a big Federalist Society mantra. I suspect Tribe wrote an op-ed before Lopez was decided that said we’d be crazy to think the Rehnquist court would roll back decades of commerce clause jurisprudence.
burnspbesq
@Face:
Citizens United is disastrous policy, but no one who really understands the First Amendment can say with a straight face that the case was wrongly decided. What part of “Congress shall make no law” are you struggling to understand?
Michael
I still don’t know how the guy made it through middle school without hanging himself or going postal…
eemom
@Stillwater:
Why do I think they are wrong? Because they are talking out their asses on an area in which they have no expertise.
Do you honestly believe there is NOTHING about Supreme Court jurisprudence that is beyond the facile comprehension of people who have never even fucking studied law?
I assume John and Doug understand the theory of relativity too. Does that mean they’re qualified to opine on who should receive the Nobel Prize for physics?
Again, I just can’t BELIEVE no one sees anything wrong with this proud parade of ignorant arrogance.
stuckinred
Got some riled up barristers up in here!
eemom, can I have a Venti Pike Place ?
El Cid
@Steve V: You have to admit, though, that rolling back the post-switch-in-time New Deal interpretation of the commerce clause would make things here a lot more interesting, challenging, a country full of much more excitement.
For example, if rolled back far enough, we could finally achieve the Rand Paul vision of not preventing private local businesses from keeping out people of the wrong race.
Parallel 5ths (Jewish Steel)
@burnspbesq: A lawyer I am not, but I am persuaded by this. “Winning the cycle” is probably not something a life-appointed pontiff of all that is legal worries much about. Well, maybe Thomas does but every group needs its sacrificial clown.
How he or she is regarded by peers, history is all that’s left to a Supreme, right?
Dork
@burnspbesq: the problem is, last time I looked, it only really matters who’s on the court today. If one believes that these justices will ignore precedent (as many do), why wouldn’t people fear the USSC’s ability to vote their party and not the merits? It’s not like their job security is at stake. It’s not like fully 50% wont deify them for voting such. Fox News All-Stars.
FreeAtLast
Not the only one. I guess you and Tribe and I are still not cynical enough to think that even the highest-minded Republicans have no shame. Some of us never learn. But I have come a long way. The day after the 2000 election, I thought Bush would be a gentleman and cede the election to Gore on account of the Plam Beach butterfly ballot fiasco. I’ll never forget the look on my husband’s face when I said that to him.
harokin
@kay: And I think Supreme Court justices generally recognize that. As Andrew Jackson pointed out, the Supreme Court doesn’t have an army. It needs a veneer of legimitacy to perform its function.
Keith G
@theconstituent:
Very few here will let a rational view of Constitutional and court history get in the way of their very comfortable, off the the shelf narrative.
p.a.
@El Cid: …and in other news, there is a mysterious crayon shortage in Washington, D.C. and environs…
kay
@burnspbesq:
But what about this, burns?
I don’t know: I’m asking. They’re not just pulling this out of their ass. They’re relying on this Scalia dissent.
mofo
@83:
If you don’t like how I run my business, don’t buy my fucking barbeque sauce, or stay away from my lunch counters. Big Gummint has no right to force me into the activity of serving customers I prefer not to serve.
MattR
@burnspbesq:
ROTFLMAO
Brachiator
@DougJ®:
The Supreme Court often ignores the potential judgment of history. This, among other reasons, is why actual opinions and dissents are as crucial as the box score of the votes.
By the way, a recent NY Review of Books article by David Cole provides a useful background on the issue of the constitutional challenge to health care reform (Is Health Care Reform Unconstitutional?) One tidbit:
The Massachusetts law has been upheld despite challenges.
Now, if the Supremes want to say that the states can do anything, but Congress is constrained by the Constitution, well, that would be an interesting entanglement.
Face
@burnspbesq: So Scalia, a self-pronounced strict constitutionalist, believes that the founding fathers would have included “corporations” when penning 1st Amendment w/r/t the freedom of speech?
JGabriel
I just want to say, as someone who expects SCOTUS to deliver a partisan decision on ACA, that I hope that I hope they don’t, that burnspbesq and eemom are right. I would rather be wrong about this than right.
This isn’t just an argument between lawyers and people without legal experience — it’s also an argument between people who work, and still have faith, in the US legal system, versus those who have lost that faith, especially any faith in the integrity of the Supreme Court and, in particular, its right wing.
If the decision goes the way they (eemom, burnspbesq, et.al.) expect, with 6-8 justices upholding ACA, I’ll be glad to have some small measure of faith in the system restored.
If the decision strikes down the ACA, or the ACA is only upheld by a 5 vote majority, will they concede that those of us who have lost faith in the system are correct? That it’s broken by partisanship amongst the right wing of its current membership?
.
General Stuck
I think they will split the baby and likely uphold CC application in the case of HCR, but will curtail federal involvement to dictate to the states how they must meet broad general federal mandates and for general implementation of HCR. In this case, how to keep folks from waiting till they are sick to buy insurance and bankrupting private insurers because of the other regs that insurance must be sold to those sick people. Leaving it to states to raise the needed cash in lieu of a national mandate for everyone to buy insurance.
This type model for more state control meeting national mandates would not be new, but the court could require it to a greater degree than a wide open CC for unlimited federal control of states. It would likely make ACA unworkable as well, due to the complexity of HC delivery and insurance in this country. But that is the general idea of the average wingnut on HCR, ie Obamacare. Seems to me.
Or, reality could turn out just the opposite, due to me not having a clue in general for lawing. Consider it then, a Perry Mason moment gone awry.
Stellllllllllllla !!
kay
@harokin:
I don’t have any idea how it will come out, but I’m certainly rooting for Tribe’s view of the court to prevail.
On a larger note, I think this vast mistrust is an indication of how really corrosive Bush v Gore was and is.
They did some lasting damage there, to an institution and idea they profess to love, and probably do love. I hope they’re aware of that.
El Cid
@eemom:
I wouldn’t say “no one”. Suggesting that there is a tiny chance that some such unlikely ruling could occur and that the notion of such a chance would entirely be based on a crudely political outlook is not failing to see anything wrong with arguments which dismiss the relevance of actually observed jurisprudence.
Largely, I think, due to fears based on Bush V. Gore and listening to the nut squad right’s dream list of what they wish the court would do.
Maybe it’s wrong to even discuss the consequences of such a very unlikely (absurdly unlikely, however you want to phrase it) decision.
I knew people who really felt that Bush Jr. was right on the edge of sending the troops rolling through the streets to impose martial law and suspend elections, but I thought that was not in any way in the cards, but if any pricks ever were going to do something like that, I could imagine it being those guys with 9/11 as a justification.
Heck, some people were writing about it like it was going to happen. I guess as long as there wasn’t any big public activities to defy the martial law Bush Jr. was about to impose, or some unified consensus, or severe polarization of the anti-Bush Jr. crowd, not too much harm done. The inevitable opportunity to portray the anti-Bush Juniorites as wackos, sure.
timb
@4tehlulz: THIS. What Tribe is trying to say is that sure they could vote against it if they don’t mind invalidating precedent (which Scalia, Thomas, Alito and Roberts do not), but that doing it isn’t a one-off shot like Bush v Gore. Invalidating this mandate will immediately send the entire federal bureaucracy into confusion and will seriously limit Congress’s power to, you know, pass laws, which the Court does not want to do.
The Court upheld Section 5 of the VRA, despite the fact that conservatives HATED it. They did so because the consequences of not upholding were worse. the same applies here.
timb
@DougJ®: Is Klein a lawyer?
Punchy
Ah….the IAL, You’re Not, So STFU Argument. Very closely related to the always-fun Im A Mother, You’re Not, So STFU Retort. Nicely done.
Poopyman
@eemom:
Of course they’re qualified to opine on Nobel Prizes. WTF is your definition of “opine” anyway?
I didn’t know we unwashed masses that failed to aspire to be a fucking lawyer weren’t fucking allowed to opine on matters that have a shitload more impact on us unwashed masses than a fucking Nobel Prize in physics.
Jesus.
Keith G
@John Cole:
I belive that this is the point that @theconstituent: and emom have been making in one form or another. And I think it is an important issue that some on the Court will spend much time mulling over.
This is a thread that once pulled will unravel many things.
geg6
@burnspbesq:
Easy peasy. The idea that money is speech and that legal fictions, like corporations, speak or are anything like actual people or, as I like to call them, citizens.
aimai
@Face:
Yes. They definitely would have wanted an American version of the East India Company to have as many votes as it had currency.
aimai
p.a.
@burnspbesq:
you must not have been born in 2000. you write very well for a young person.
Xenos
@burnspbesq: I doubt I will convince you, but the activist right, and the Federalist Society in particular, has been gunning to carve back the CC for years. And if distinguishing from Raich so hard that it is overturned in all but name is the cost of doing this, I fully expect Scalia to do it. If he has to distinguish and recharacterize whole lines of cases he will be willing to do it if he thinks he can get away with it.
Remember the issue of conservative groupthink? These judges do not have it in terms of legal arguments, but they may well have it in political terms. If their thinking is that the nation hates Obama, there is no way he is going to be re-elected, and that if they strike down ACA no new law will come up for 20 years, then the temptation and pressure will be too great.
Stillwater
@eemom: Again, I just can’t BELIEVE no one sees anything wrong with this proud parade of ignorant arrogance.
Well, then change their minds. Give them an argument.
timb
@JWL: See, I disagree here. I don’t personally like Scalia or his politics, but from a lawyer’s POV, Scalia is fine, because he generally precedent and a line of reasoning from one case to another. There are notable exceptions: Bush v Gore, for example, but they are notable because he’s not generally inconsistent. bombastic, sure. wrong, hell yeah, but he’s wrong in a consistent way. And, ever since Lopez, he has consistently upheld the right of Congress to use the Commerce Clause to regulate commerce.
cmorenc
@agrippa :
I disagree that the danger here is any sort of directly political play by the four ideologically most consistent justices, plus Kennedy for whatever reason he might decide to throw in with them. Rather, the danger is that they will realize that chances anywhere near this ripe with broad possibilities for fundamentally resetting not just one, but two or three of the basic foundations of American Constitutional law in line with their view of proper originalist / federalist principles may never come again during their tenure on the court. They may see themselves as being presented with one of the most important crossroads in American legal history, whereby they if they decline to take a divergent fork, the constitutional momentum of the New Deal-style federalist state will forever be unstoppable and the incremental building of a European-style social democratic state will continue until someday it is completed, but if they act, they can effectively forestall the possibility and lay the groundwork for Congress to incrementally dismantle the New Deal.
In other words, the ideologically conservative justices may not be playing to the current crowd (they have lifetime tenure)…they may be playing to the much bigger, longer-picture stage of history long after any current politicians are still in office.
I wish I had Tribe’s faith that the Justices will respect the overwhelming weight of accumulated constitutional law on commerce clause, etc. Citizens United should be a warning shot that they may feel empowered, rather than restrained, by their office.
timb
@eemom: Look, I’m a lawyer and I respect the hell out of Larry Tribe, but lawyerin’ ain’t physics. Lawyers just aren’t THAT much smarter than non-lawyers. Experienced, sure, but Commerce Clause jurisprudence is pretty simple. You give someone a copy of Wickard and the Wikipedia on Lochner and ten minutes later they understand 1936-1995. You explain Lopez to them and you have 1995 to the present. This is not relativity
Lynn Dee
Quote: “Am I the only one who read this and thought what Lawrence Tribe is really saying is: ‘Listen, Antonin, Sammy, John, and Clarence. You pull any of that Bush v. Gore crap and I and others will make sure that history will not judge you clowns well. Verstehen?'”
I saw it that way too. Workin’ the refs by pointing out to the refs how they will be viewed if their vote is political. Do they want to pull a Sandra Day O’Connor and spend their retirements attempting to redeem themselves?
Of course, it remains to be seen whether they care about that. Maybe they think O’Connor is a putz.
General Stuck
All the judges have to do with HCR is invalidate a single, but critical provision to kill it. Something that would require additional action by congress, that would never pass until dems again had 60 senate seats, The House, and the WH.
And they can also tinker with a new test for the CC, without it being retroactive to passed legislation like SS. My guess is the braintrust within the dark bowels of the Federalist Society and elsewhere, have long since gamed this out and were only waiting for the right opportunity of something like ACA and the unpopular mandate to buy insurance, to spring it into new law.
And anyone who thinks the ACA is not THE White Whale for the wingnut philosophy has not been paying attention. It is their Waterloo, shootout at the OK corral, and Titanic that must be sunk at all costs. Normal rules do not apply, even for Robed Masters of the Legal Universe.
Citizen Alan
@burnspbesq:
First of all, it’s not “191 years of Commerce Clause jurisprudence.” Lochner, which is the CC interpretation that conservatives want to reinstate, wasn’t overturned until the 1930’s, and we have one Justice right now (Thomas) who doesn’t even bother to pretend he won’t reinstate Lochner if he get’s the chance.
Second, here’s a second dat point for you: Citizens United In that case, handed down just two years ago, the Roberts Five took the virtually unprecedented step of broadening the scope of appeal beyond what had been sought in the petition for certiorari before handing down a ruling that overturned decades of campaign finance jurisprudence.
cat48
I hope Tribe taught Kagan Constitutional Law. I read he taught Obama’s class…..he’s obviously biased!
Citizen Alan
@burnspbesq:
The part where the First Amendment applies to corporations and other fictitious persons.
JGabriel
@eemom:
On the internet? I’m SHOCKED!
Okay, now for the serious response. Do you not see that this is not ignorance, that these are people who have lost faith in the integrity of our Supreme Court justices?
Maybe they’re wrong and you’re right. I don’t know. I know I don’t have much faith in SCOTUS either, these days.
.
catclub
@Face: Yep, all you have to do is remind the reader that corporations are representations of groups of people – just like soylent green.
I would disagree with the above argument, but I do realize it could be made.
Keith G
@burnspbesq:
I am frustrated by my observation that many on my side are using invective and, in some cases, near paranoid ramblings in the place of well-considered arguments. I thought that was solely the habit of the Right.
So, I wouldn’t epxect much in the way of convincing rebuttal.
RP
eemom’s comments are a little over the top, but she’s basically right. I don’t like Scalia or Thomas, but they’re not the unprincipled hacks that everyone is making them out to be. (I’m not sure about Roberts and Alito.) What’s naive is saying that the justices vote purely along ideological and party lines all the time.
And Tribe’s message is aimed at the media, not the SCt. He’s trying to get the media to stop treating this is a complicated constitutional issue and framing it as “it’s a toss up.” Better media coverage might have a subtle impact on the SCt down the road, but that’s hardly his primary target.
JGabriel
@Lynn Dee:
You make the mistake of thinking sociopaths like Scalia, et. al., would ever seek redemption. In their own eyes, they think God demands the hell on earth they’re creating.
.
Paul in KY
@Michael: Maybe he’s a real big dude that no one would pick on?
Lynn Dee
Quote: “Do you not see that this is not ignorance, that these are people who have lost faith in the integrity of our Supreme Court justices?”
Yep. I remember saying in a con law seminar that, despite the Court’s foibles and the personal quirks of the justices, that over time it basically got things right. I’m embarrassed to recall that moment.
Lynn Dee
Quote: “You make the mistake of thinking sociopaths like Scalia, et. al., would ever seek redemption. In their own eyes, they think God demands the hell on earth they’re creating.”
@JGabriel: Did you not read my whole post? It’s not like it was that long. I’m giving my interpretation of what Lawrence Tribe wrote, and added that Scalia, Alito and Roberts may not give a damn about redemption and may think O’Connor is a putz.
ericblair
The fact that we are considering how much the conservative justices want to come to a specific ruling versus how much they want to upset the zillions of applecarts out there tell me that everybody expects politics to factor in the decision but are arguing over how much it will. Like the joke, we know what they are, we’re just arguing over the price.
I expect the court to rule in favor of ACA. I’d also like to say how corrosive Bush v Gore has proven to be, and just because the court has basically called that a “one-off” decision doesn’t mean it is one in a common law state. If we’re saying that the justices will rule in the law unless they get panicked about some sort of existential threat and call for a one-off, it doesn’t exactly fill me with confidence for the future. Fiat justitia ruat caelum my hairy heinie.
kay
@JGabriel:
Well, there’s this scholarly response to consider:
The subject came up at the Oxford Union.
“Supposing yourself as a Supreme Court justice were granted the power to appoint the next president of the United States. Who would you pick and why? And would he or she be better than your last choice?” a student asked Scalia.
“You wanna talk about Bush versus Gore. I perceive that,” he replied. “I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!”
Lynn Dee
Quote: “‘You wanna talk about Bush versus Gore. I perceive that,” he replied. “I and my court owe no apology whatever for Bush versus Gore. We did the right thing. So there!'”
Sigh. And the fact the decision was expressly “good for one use only” doesn’t slow him down.
Scalia was also supposedly asked what the difference between him and Robert Bork was, and he replied: “Not a damn thing.”
timb
@Lynn Dee: Crazy talk. Scalia believes in Griswold and Loving.
Bork is Thomas without the charm, eloquence, and interesting bio and Thomas should have never been confirmed to the Court (because of his jurisprudence, the perjury and harassment are just counterpoints to how outside the mainstream he is)
Lynn Dee
@timb: What’s crazy talk? Are you saying Bork and Thomas don’t believe in Griswold and Loving and at least Scalia does?
Citizen Alan
@timb:
I will accept, in the absence of evidence to the contrary, that Scalia supports the reasoning of Loving. In light of his membership in a reactionary subset of the Catholic Church, I am not at all persuaded that he supports the reasoning of Griswold. If there were four other votes in support of the idea that a state could ban the sale of condoms, I am, frankly, inclined to think that he would join them
El Cid
@General Stuck: The Florida ruling focused on the individual mandate (i.e., what really is more-or-less a tax credit only to people with health insurance), and even on this it is argued by the more legally trained here that a Scalia ruling against it would go against Scalia’s own precedent and logic in other cases. I think it was in Raich. I don’t recall, I think burnspesq was one of them. That’s the only small piece of ACA I heard people suggesting was vulnerable.
cmorenc: I agree that a generic right wing court would definitely see such a case as a huge historical opportunity to undo much of the New Deal and see it as their duty to use the opportunity.
A number of people here and Tribe are arguing that a knowledge of the role of precedent-following and the thinking styles of individual justices make such an approach pretty much impossible, as well as arguing that the role of Sup Ct judicial logic is the guiding force, not the political calculations and ideologies of a movement.
I always fear the first case. I think the second case is probably right, but since it isn’t an argument and topic I’m not facile with, I don’t have a strong sense that it’s an unshakably strong approach.
Jefferson wasn’t surprised by Marshall’s Federalist outlook because that’s what Marshall had been in politics, and that’s why Adams and the Federalists in congress did the whole Midnight Judges thing and threw in Marshall right after they lost the election to the Democratic-Republican party to fuck up Jefferson’s hold on the Court.
And why Jefferson denounced the Marbury v. Madison decision in which Marshall created the philosophy that the Sup Ct could review laws for their Constitutionality as setting up an “oligarchy”.
What I know of that is historical, and not judicial, in nature.
These days, though, favored nominees don’t have such an extremely clear record of public political philosophies, but judicial and/or legal histories with which some are much more familiar.
Triassic Sands
I’m afraid any assumption that Scalia, et al. will do the right thing is mostly wishful thinking. I don’t think it is guaranteed that they will rule the individual mandate unconstitutional, but neither do I think we can rely on them to apply constitutional consistency to such a highly charged, partisan issue.
It could go either way, and as much as I hope Tribe is right, I wouldn’t bet a penny on the court’s conservatives. They have already shown they are willing to just make it up if necessary. Tribe says “there is every reason to believe” the Court will do the right thing, but I wonder how much money Professor Tribe would be willing to bet on that proposition? I suspect that Tribe’s betting behavior would reflect less confidence than did his Op-Ed.
peach flavored shampoo
They will use their ACA ruling to shoot down Roe vs. Wade.
Alwhite
Antonin “Fat Tony” Scalia has shown no real judicial consistency that would override his political consistency. He has stated that he does not see a constitutional problem with HCR but I trust him as far as I could throw a swan boat with him and Justice Long Dong Silver in it. TBD.
Lynn Dee
@peach flavored shampoo: Ridiculous. Roe v. Wade wasn’t decided under the commerce clause.
Or maybe I should ask: How do you figure?
Stillwater
deleted
Stillwater
@cmorenc: That’s the best case I’ve seen for the conservative coup. The purely political angle – which suggests that precedent will by rejected for political reasons – strikes me as weak. Rather, if five justices do agree to overturn ACA on constitutional grounds, it will be based on deep and enduring ideological principles, like preventing the US from becoming a full-blown Euro-socia!ist
utopiadystopia.Tim Cooper
@El Cid:
This.
We are as prone to tribalism as anyone else, And so much of the right is delusional and crazy right now, that I (and perhaps many of us) really don’t understand their motivations or reasoning. Once it was decided by far far too many “principled” Republicans that torturing Muslims was justified, and that massive spying on the American public was justified, “what else might they do” became a significant question in our minds.
Eemom: I really really want you to be right, and I remain unconvinced that you are wrong. But, and I will use the right word, fear of what the GOP has become and how it might still grow worse isn’t irrational. Enlighten me, for I am ignorant and I think you DO know more than me. Please, help me to hope. When has Scalia, Alito, Roberts or least of all likely Thomas decided a case against the interests of the Corporate/Conservative movement?
Pococurante
It is difficult to see how some of the most vocal SCs supporting originalism could overrule the most fundamental part of the constitution.
But then the SC over history has been known to make decisions solely based on what they felt was the zeitgeist of their time. Can we today believe baseball should not be subject to the Sherman act?
Scalia may not do something he thinks is unprincipled. But it does seem his definition of “appropriate principle” slides…
peach flavored shampoo
@Lynn Dee: Dayum. I was snarking. Like the other 93.41% of commentors here.
Lynn Dee
@Stillwater: Well, they’ll still have to find a legal rationale for it. It won’t be to save the U.S. from becoming a socialist state although that may be the underlying reason. Will they decide the individual mandate infringes on personal liberty? I don’t know. I don’t see how they get around the commerce clause, but I don’t doubt they can find a way. Scalia has shown himself to be quite adept at this sort of thing, and at picking and choosing what he’s suddenly going to be “plain meaning” about — and then cooking up some “plain meaning” that isn’t even remotely plain.
Lynn Dee
@peach flavored shampoo: Okay. Sorry. Some folks are being more or less serious, and I don’t know you well enough (or at all, really) to recognize your snark.
Carry on, then..
General Stuck
@El Cid:
No one I heard thought the SCOTUS could even take Bush V Gore based on a ton of precedent, let alone rule the way the did, usurping the state right to settle it’s own elections. And THAT flying headlong into federalist judging to the extreme. And all sorts of Scalia and the others going against their own judicial philosophy.
And then you have the utterly arbitrary equation of money with speech.
I appreciate eemom and burn’s professional belief system for an orderly SCOTUS, and all that. But the truth is that they can pretty much do what they want, and this court has shown when it suits them, will shitcan long standing precedent with extreme prejudice.
When it comes to applying the law to the constitution, these persons are in fact dictators for life, and can do what they want, if they want to bad enough. And an orderly bench be damned to the greater political good.
Alwhite
@General Stuck:
BINGO!
Shalimar
@eemom: Do you honestly believe there aren’t hundreds of thousands of law school graduates who agree with them? My prediction is 7-2 upholding the law. I don’t think what John and Doug are arguing is outrageous or impossible though. We have had a very politicized, conservative court since Rehnquist replaced Burger. A ruling against ACA would be further than they have gone before, but it could happen. They are getting more political over time imo.
And I don’t think you’re ignorant, but you definitely are winning the most abusive, name-calling asshole award for this thread. In other words, be careful with calling other people arrogant.
Angry Black Lady
@kay: this. in a world where people are trying to impeach justices because they don’t agree with gay marriage jurisprudence (See Iowa), it’s not abjectly stupid to be concerned about the increasing partisanization (yeah, i made that up) of the judiciary. When you have Sam Alito mouthing off during POTUS’s speech on Citizens United, Scalia teaching Constitution 101 to a bunch of Tea Partiers, it’s not insane to think that SCOTUS isn’t run on pure legal and constitutional principle anymore.
IAAL, and I find it depressing.
Angry Black Lady
Part of me wants Obama to go FDR on people’s asses and threaten to pack the court. now THAT would be fun.
liberal
@General Stuck:
I haven’t had time to think about it much, but I think one “political” reason for NOT ruling against it despite the fact that “we can, neener neener” is that it would open a Pandora’s box that could endanger things the right (read: corporations) find necessary.
timb
@Lynn Dee: yes. I’m not saying you’re crazy: just that Scalia’s self-victimizing philosophy once again has gotten ahead of the Truth
timb
@Citizen Alan: Nah, if one accepts the legal reasoning of Loving, then Griswold follows. That’s what was so frightening about Bork
eemom
@Shalimar:
Good, let me clinch it. YOU’re an asshole.
I tried repeatedly last week to engage on the merits of this issue, and all the response I kept getting was smug insistence that this has nothing at all to do with law — again, from people who know nothing the fuck ABOUT law, OR anything in any depth about any of these 9 justices — other than shit they read on blogs and the memory of Bush v. Gore.
I’m the one who is NOT talking out my ass, and I’m the one who said that it takes a Laurence Tribe to intelligently opine on this issue.
So take your “arrogant” and shove it up your name-calling little ass.
moe99
http://www.scotusblog.com/archives/Tribe-Treatise-Green%20Bag%202005%20low%20res.pdf
This is the letter Larry Tribe wrote to the SCT to tell them he was not going to finish the 2d volume of his Con Law because (to paraphrase) he thought they were full of shit.
burnspbesq
@kay:
Links?
Maude
@peach flavored shampoo:
I thought it was a fun comment. Good to see you.
burnspbesq
@Face:
Ever read Blackstone? It’s a useful book to keep around if you’re going to try to make intelligent guesses about what the Framers knew.
burnspbesq
@geg6:
It’s a shame that your views of what the law should be bear almost no resemblance to what the law actually is.
kay
@Angry Black Lady:
It is depressing. I also think we’re talking about two different things in the comments here (although Tribe addressed both of them).
First is what he thinks the Court will do based on what they’ve done before, both as individuals and as a Court (earlier CC precedent). The legal analysis.
Second is his defense of their integrity.
He’s credible on both because he’s a legal expert, and he’s practiced in that court.
But I do understand why people lack trust. They aren’t questioning Tribe’s legal analysis. They’re questioning his ethical analysis.
BombIranForChrist
I stopped reading at the word “integrity”.
Riiiight.
burnspbesq
@Citizen Alan:
Nope, sorry, you’re half wrong. Lochner is an anomaly. There is a rarely broken chain of Commerce Clause cases, going back to McCulloch v. Maryland in 1819, that points in one direction. And 1819 is 191 years ago.
You are correct that Thomas is only one of nine, and that limits his ability to cause mischief.
The Sheriff's A Ni-
What I’m hearing from Larry sounds a little different: “If you shoot this one down, a public option or worse is coming next and there’s nothing we can do to stop that. Best go with the devil you know, boys.”
kay
@burnspbesq:
Sure. I thought about you because this dissent was also raised in a Times editorial. This is now the Big New Theory, burns. That Scalia joined this dissent in preparation for his big break from cc precedent.
I’m paranoid on conservatives and the commerce clause, so I can no longer measure anything. I’m in full-on fight mode :)
burnspbesq
@Citizen Alan:
The drafters of the Bill of Rights would have been familiar with the English common law. As Blackstone clearly points out, corporations were understood to have legal personality. You’ve been sold a big, steaming pile of bullshit if you believe otherwise.
shargash
The mandate is essentially one of the biggest corporate giveaways in history. Why would anyone think the most corporate-friendly Supreme Court in history would have any objections to it? I predict 7-2 in favor, and maybe more lopsided than that.
I also find Tribe’s interpretation of “regulate” to be bizarre. There’s no question that Congress can regulate the food industry, but does that mean Congress can force me to eat 2 Big Mac’s every Tuesday afternoon?
The health care bill is kind of small potatoes compared to the Social Security act(s), but it isn’t a bad bill, except for the mandate. The mandate sucks. It should be ruled unconstitutional, but with Corporatists having supermajorities in all branches of government, the odds of it are somewhere between slim and none.
kay
@burnspbesq:
Here’s the actual dissent.
Mark S.
Lochner wasn’t a Commerce Clause case. It was a New York law concerning bakers. They invalidated it through substantive due process, the “liberty of contract.”
As reactionary as Scalia and friends can be, they are not trying to revive Lochner.
Poopyman
@moe99: Wow. Thanks for this. Just gotten through the short version. Very interesting.
Chyron HR
@eemom:
I just don’t understand why nobody defers to your expert opinion on this matter.
burnspbesq
@kay:
Thomas has a legitimate beef with the Ninth Circuit’s analysis in Alderman, which end-runs Lopez and Morrison. BUT it is crucial to note that Scalia joins in Thomas’ dissent from the denial of cert “except for footnote 2.” Which means that Scalia is not signing on to Thomas’ concurrences in Lopez and Morrison or his dissent in Raich. So I don’t see a basis here for inferring any change in Scalia’s views.
Omnes Omnibus
@Chyron HR: Actually, her frustration is boiling over from previous threads on the subject where she did offer more substantive appraisals. People summarily dismissed them.
kay
@burnspbesq:
Makes sense. Thanks. I noticed it was in the NYT and caught on like wildfire.
burnspbesq
@kay:
I recognize that I am making a big bet on Scalia’s judicial superego keeping his political id under control.
Barry
@Poopyman: That, and also that being successful at changing the country will be enough place in history to satisfy them.
Tribe is just another data point in favor of Harvard Delenda Est. (and no, I don’t care about the gender of Harvad).
Barry
@Angry Black Lady: “If it is such a split vote, the court is going to lose a lot of credibility with reps and dems. i’m just hoping they do the right thing. if they don’t, i’m going to be depressed. ”
Why would they lose credibility with Reps? And why should they care about credibility with Dems?
General Stuck
@burnspbesq:
At least you admit it is a bet, and a not unfair one, as opposed to this could never happen in real life, when history states otherwise, when the stakes are high enough.
PTirebiter
That was my first thought, although I read it as a little less threatening than your characterization. After reading it again, I think this may be one of those times when a cigar is just a cigar. Maybe an attempt to inform and raise the conversation above the usual gasbaggery.
Barry
@John Cole: “What I don’t understand is that if they nuke the ACA, don’t they also take down their war on drugs? ”
John, IIRC Scalia recently reversed his own policy of reigning in the Commerce Claus, when ruling that privately growing small amounts of marijuana was a federal concern.
Scalia’s already dirty – and (again, IIRC), SCOTUS said that Bush v Gore was not to be used as a precedent. I don’t see how that’s not evidence of an open and admitted partisan ruling.
General Stuck
The legal eagles here on the hot air blog have convinced me that the SCOTUS, and I would say especially Kennedy, and maybe Scalia, would not venture to assault the CC directly, or make a ruling leaving open the Pandora’s Box for challenge of the long list of past CC fueled laws.
I am not convinced they will not apply some well placed hits on HOW federal mandates are achieved, with greater deference to the states. And crippling the ACA in the process, if not killing it dead as Caesar. Unless the House wingnuts kill it first, whereupon those idiots would too likely turn the republic into one very long soup line in the process.
Barry
@harokin: “Bush v. Gore was a bizarre and hasty panic driven decision. O’Connor later regretted it and I suspect she was steamrollered at the time by threats of incipient anarchy.”
That’s her job, to deal with the tough issues.
Second, the rumors going around in the papers were that she had expressed worry about Gore being elected, because that would interfere in her retirement (she wanted to be replaced by a Republican judge).
As for being ‘steamrollered’, again, she’s a SCOTUS justice. That’s not like being justice of the peace in Maybury.
Lynn Dee
@Barry: I don’t think she was steamrolled at all. I think she was in a huff over the possibility that Gore would win, voted her huff, and has lived to regret that vote — hence the never-ending redemption tour she’s been on.
kay
@General Stuck:
It’s interesting to watch the race, though, Stuck, because commerce keeps grinding along, and the law is being implemented. If they’re going to strike it down,they better act fast, because states are putting it in place, despite what their Tea Partying governors say at press conferences.
The longer they wait the more disruptive and heavy-handed that is going to appear.
General Stuck
@kay:
I agree with this 100 percent Kay. It is our ace in the hole, that the longer it is till a scotus reckoning, the harder the politics will be for them taking the case and ruling in some negative way. It is why the wingers are so desperate to fast track it to the high court. It would be much better for them to have the scotus do the dirty deed, than them in the House creating a Frankenstein monster from holding back funding for parts of the law.
So I have hope, and unless one of the district judges enjoins the law now, then no one really has standing to fast track it to the scotus but the executive branch, I wouldn’t think.
But as a big believer in these things playing out one way or another, there is always the chance something better will emerge from the worst. There is no escaping by the wingnuts, the screwed up system we have and it’s certain demise, at some point, and fairly soon. The status quo in this case, is a one way ticket to total collapse. Everyone knows this, even the wingers, but they just can’t help themselves.
Lynn Dee
Some legal observers suggest that the district court rulings against ACA are likely to be reversed by their respective appellate courts and that, if as a result there weren’t a circuit split, the Supreme Court would be less inclined to take any of the cases.
I must admit I’m partial to that outcome, although I don’t know how realistic it is. Even if there’s not a split, the Supreme Court might well take a case.
moe99
Randy Barnett, law professor at Georgetown, believes that the HCA is unconstitutional.
http://judiciary.senate.gov/pdf/11-02-02%20Barnett%20Testimony.pdf
I happen to believe this is crap, but I would bet if Scalia, Alito and Roberts need some cover, they can get it here.
kay
@General Stuck:
I think states cannot handle health care. If they could, they would have “fixed” it long ago, because they end up with the real human and financial costs of uncompensated care, and they actually have to balance budgets. They don’t want it. They have virtually unlimited power, and only three states, Massachusetts, Vermont and Oregon did anything with it. Nothing was stopping the 26 states that are suing from addressing this at the state level. None of them did.
When Bush ordered states (through child support enforcement) to start collecting money for the health care costs of the children of unmarried parents, there were no objections, and that action included a mandate to purchase private insurance that mirrors the PPACA. Not a peep. They need the money, and they need everyone enrolled in some sort of health care payment system.
General Stuck
@kay:
At this point, I don’t think any of them have thought this through. They are running on pure ideological reactionary afterburners, that shakes and threatens the core of their belief system. They could swallow some small bites of progressive initiative, but the national mandate and all the other federal impositions on this emo issue, is all currently that matters to most of them. Plus, some of the brighter bulbs also realize the threat it poses to the republican in an electoral sense, if and when the public embraces a greater sense of health care security. They will reward democrats at the polls, not the republicans.
Lynn Dee
@moe99: Wow, you’re right. That is crap. Starting with the first line: “In 2010 something happened in this country that has never happened before: Congress required that every person enter into a contract relationship with a private company.”
Now, normally I don’t like analogizing health care insurance to car insurance — not just because of the feds versus state thing, but because you really can opt out of car insurance by not having a car — and you can’t, obviously, opt out of being human and being susceptible, at some point, to requiring emergency medical care.
But, once you’ve said, “But if you do buy a car, you must have insurance” — you’ve kinda left behind the horrors of requiring a contractual relationship with a private company.
(Or maybe Prof. Barnett is arguing for single payer?!)
Anyway, I assume, since he started out with this line, that this is Prof. Barnett’s strongest argument? Very sad. I’ll read on.
kay
@General Stuck:
I don’t even give them that credit. I think they’re deliberately and carefully deceiving people for political gain. My new attorney general was a moderate until about June of 2010. He doesn’t believe a word he’s saying, about this law or anything else. He’s thought it through. He just thinks he can have it both ways. Tangible benefit of new law plus political benefit of opposing new law.
eemom
@moe99:
Supreme Court justices don’t get “cover” from law professors, any more than law professors issue thinly veiled threats to Supreme Court justices, as suggested at the beginning of this brilliant thread.
Especially when the law professor is an obvious partisan hack using sensationalist shit like that.
burnspbesq
@eemom:
I don’t think “obvious partisan hack” is a fair description of Randy Barnett. From what I’ve read of his writing, he sincerely believes the Constitution-in-exile crap he is spouting.
Chuck Butcher
@eemom:
It appears that at some point in time we’ll get to see how well your take holds.
I will note that there is no requirement or actuallity that the SCOTUS contain the best legal minds in the nation.
That the selection of and approval of those Justices is a political act.
That those Justices are not held to any particular high standard of conduct.
I have no particular opinion on how this will play out in the Court and not just because I am not a LAWYER. Faith is not something I’m real strong on, especially where govt is involved.
Lynn Dee
@eemom: I don’t think Tribe’s op-ed is a “threat”… but I do think it’s a shot across the bow of the Supreme Court. Or call it an invitation to do the right thing, if you like that better — followed by a careful delineation of exactly what the right thing is and why. Steven Benen had the same reaction. (link below) I’m a little baffled by your strong disinclination to think a law professor would do such a thing.
http://www.washingtonmonthly.com/archives/individual/2011_02/027905.php
BTW, I agree that law professors don’t provide cover for Supreme Court justices — but they’re certainly free to adopt law professors’ thinking or arguments, if so inclined. Wouldn’t be the first time.
Shalimar
@eemom: Poor you, the lone intelligent voice in a sea of stupidity and ignorance. How do you survive?
Lynn Dee
@burnspbesq: Quote: “I don’t think “obvious partisan hack” is a fair description of Randy Barnett. From what I’ve read of his writing, he sincerely believes the Constitution-in-exile crap he is spouting.”
Lol!
Lynn Dee
@eemom: Quote: “I have no particular opinion on how this will play out in the Court and not just because I am not a LAWYER. Faith is not something I’m real strong on, especially where govt is involved.”
What is your beef, exactly? Why do you keep harping on being a lawyer? Near as I can tell, there are quite a few of us here.
People love to give their opinions — and none more so than lawyers. Surely you know that. And you’re certainly giving your opinion — even if under the guise of chastising everyone else for giving theirs!
Johannes
@eemom: Well, here’s the thing.
First, I agree with you that Larry Tribe is a rarity among lawyers–an outstanding advocate who’s also a true intellectual. And it is with some trepidation that I say: I’m not convinced by his assumption that Scalia and the other conservatives on the Court won’t vote their policy preferences.
I’m not saying that based on Bush v. Gore alone. And Citizen’s United is a complex matter–finding the speech at issue protected was certainly correct, but the reasoning was cavalier with precedent and flat wrong in making corporations essentially equal to people, a decision I think will have potentially harmful effects for Fourteenth Amendment analysis in future cases.
No, what has really drained my faith in the Court is those cases in conjunction with Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal–simple civ pro cases in which the Court threw out an oft-reaffirmed interpretation of the Federal Rules which had been reenacted by Congress again and again. Why? Because they could. The statutory language remained the same, 50 years of unbroken practice and classic decisions were jettisoned–but the corporations found it easier to dismiss lawsuits. The fact that these cases became blockbusters which changed the law in a way which only practitioners would notice, but do it in a huge way, and the total lack of legal reasoning behind the decisions, convinced me that Bush v. Gore was not a one-off, but a harbinger of the future.
brantl
What integrity, what intellect? He’s about as smart as he is handsome.
Stillwater
@Lynn Dee: I wasn’t suggesting that they find a way to reject the ACA while sustaining the CC. I was merely echoing cmorenc in that they go all-in, and effectively gut/re-interpret the breadth of the commerce clause, thereby beginning the dismantling of new deal and other liberal programs.
Stillwater
@Lynn Dee: The quote you attribute to eemom was actually Chuck’s. But you’re right about eemom scolding non-lawyers for having opinions – especially given that those could be correct opinions – about how this turns out.
Carl Nyberg
I’ll go along with John Cole’s interpretation, but I would add an implied critique.
The implied message is that if the Right Wing discards precedent for arbitrary reasons, don’t be surprised when the other side starts making radical changes too.
Tehanu
Integrity? Fat Tony wouldn’t know integrity if it bit him on his predator-priest-supporting, medieval-torture-loving ass.
eemom
@Lynn Dee:
No, actually I’m not — and if your excellence in reading comprehension equalled your excellence in talking out your ass, like so many others here — you’d have figured that out by now.
The only opinion I have on the substance of the issue is that I THINK a majority of the Supreme Court would be unlikely to unleash the mayhem that would result from a radical shift in the meaning of the commerce clause.
Other than that, I’ve repeatedly stated that I’m not a Constitutional lawyer, and therefore I’m not qualified to predict with anything approaching confidence how ANY of the conservative justices would rule on an issue of this magnitude — and that imo it takes a scholar at Laurence Tribe’s level to do that with any remote claim of credibility.
So, fundamentally, my opinion is just that people shouldn’t PERSIST in opining about subjects in which they have no expertise. Law may not be rocket science, but it IS specialized area of knowledge — as is the interplay between politics and law on the Supreme Court.
I wonder how many people here would welcome my opinion as to how their professsion works.
General Stuck
@eemom:
You know I loves ya eemom, but no one is arguing here that the correct Legal decision is not almost certainly in favor of upholding the ACA. And it doesn’t take a scholar or even a lawyer to recognize the political stakes at stake here.
Nor that these wingnut justices, based on recent past decisions, are not above taking the opportunity to steer this country in an ideological direction they agree with, when an issue with profound political and ideological import crosses their path. And few qualms about breaking long held precedent to do it.
eemom
@General Stuck:
No, no, and — not so fast.
This:
is exactly the issue that DOES require expertise — the intense, big time expertise of someone who studies every decision these guys put out.
What do you mean by “qualms,” and I am not talking qualms of conscience?
Doesn’t qualms include consideration of the impact of the decision? Because it is absolutely wrong to say that these guys don’t think about that, even if they ARE idealogues.
The potential impacts of this decision, while generally foreseeable as some have discussed here, DO extend beyond the knowledge of yer average progressive on the street.
Furthermore, it is easy to say that these guys don’t give a shit about precedent — but again, what does that MEAN exactly? Have you studied the rationale for their previous precedent-breaking decisions? Have you READ the precedents? Do you understand the extent to which they actually “broke”
precedent, as opposed to extending some other well established legal principle farther than it had been extended before — e.g., that corporations are “persons”?
Based on your study of past cases, are you prepared to say with authority exactly how far each of these guys would go in “breaking” precedent? Because it is honestly just a stupid caricature to say that they would do it haphazardly based on political whim. You know, they kind of take themselves too seriously for that.
And in that vein, have you studied the opinions each of these guys have written enough to be absolutely positive that they care 0% about their responsibilities as judges and 100% about political ideology?
Have you studied the precedents they would be “breaking” here? Whether there are colorable arguments other than brazen “I don’t give a shit about precedent” for doing so? Have you compared how “breaking” the precedents at issue here measures up to what was done in Bush v. Gore or Citizens United?
And again, have you thoroughly analyzed the extent to which “breaking” precedent would serve the ideological interests to which you believe these people are committed?
I loves you too, General, but the bottom line is, this is just. not. that. simple.
General Stuck
@eemom:
I think herein lies the quandry we face in evaluating this SCOTUS, at this particular point in time, on this particular issue. Some of us see it as a seminal moment for which direction this country takes socially, politically, and ideologically, and the wingnuts certainly do. I hope you are not arguing otherwise, on this point.
As far as having qualms about impacts, I think these wingnuts showed they had little with the Citizens United case, and went against the legislature they crow about all the time as the primary vehicle for governing this country by the people. They took that precedent, and the certain knowledge of impact from money equals corruption in politics, and always has, and turned it on it’s ear in favor of corporate, and thusly conservative republican power. They didn’t have to take that monumental step, they didn’t have to equate money with speech and tie it forever to the first amendment, but they did anyways.
And as far as I know, their power in making law from the bench is just about plenary, if they so desire it to be. They don’t have to break precedent. They just have to define it where it has not been defined before. That is what they will call it, and it will sound reasonable, but will also be designed to destroy this hated and feared law, like few other laws, that is the ACA, that for them, if fully implemented, is the final nail in their belief system coffin that is the New Deal. I think you underestimate this element in play, that to the average wingnut, federalist judges not exempt, is nothing short of life and death for them in a political sense.
It is that huge and I have little faith these particular right wing souls will be able to turn away from the opportunity to march in lock step with all the other entitled wingers, and create any sort of rationalization to justify it. Kennedy might, but not the others imo.
Their actions to date have not favored such high minded judicial restraint when a favored political outcome is present, not in the slightest way. I hope you are right, and a lot could change between now and when they have to decide to take the case, or not.