I’m really completely uninterested in the actual arguments being made in the ACA case before SCOTUS. It just doesn’t matter what the law is, as these guys have proven time and again that they’ll do whatever they want. I also find it amusing that people think Roberts cares about the impressions created by a divided court. He doesn’t. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.
All this reading of tea leaves is pointless, imho. The merits of the case just don’t matter much- what matters is what these guys want to do, which is to gut the government’s power at every chance they get, unless it involves your sex life, your rights as an accused citizen, etc. Then they are all in favor of government power. These guys get one more hard right-winger like those four, they will overturn Roe, unsettling a half century of established law, faster than you can say activist judges.
Totally unrelated, but we are still tweaking the website, so stop yer bitching.
I hate to agree with you on this, but I kind of do. I would be pleasantly amazed if any of the four you mentioned voted in favor of the constitutionality of the ACA, no matter what their previous decisions would indicate.
I think since they are all for more government/corporate power they will side with the ACA.
Only the flimsy reasoning they use for siding with the government/business is what matters.
From what I’m reading, it’s all up to Kennedy. That’s hardly reassuring.
Finding himself with a few free moments on a Monday afternoon, the blogger determines to use them to incite specific community elements to heretofore unseen spirals of uncontrolled fury.
Thanks. I was beginning to wonder if maybe I was being paranoid.
(John, is it worth putting a site rebuild bitch-and-test post up? You can sticky it so people can see it immediately at the top of the page and they can go there to test-and-bitch. Hopefully this could help keep other threads a little more clear.)
Well played, sir.
I still think the argument that the RW justices may prefer to find in favor of the corporations rather than movement conservatism is a substantive one. Because of this, I’m not going to speculate on the outcome.
Technically on-topic, since you mentioned it in the last line. I hope that on the to-do list is to move the “Reply” link on these posts down to the same level as the date&time stamp. That way they won’t cover up the text of the comment if the final line runs that long.
Kiss the ACA goodbye. Just a cursory look at the Citizens United decision will show you everything you need to know about this court.
W is the gift that keeps on giving. Also, please stfu about presidential elections not mattering
I’m afraid I agree. Used to love following SCOTUS cases but not anymore. Roberts Court isn’t about the rule of law, more like ideology rules.
Personally, I think they’ll find the individual mandate constitutional and that it isn’t a tax for Anti-Injunction Act purposes. I doubt it will even be close, maybe Thomas or Alito dissenting.
@shortstop: Heh! We need a new Hinterland’s Who Who, filmed via John’s webcam. Maybe something like this.
Although given the stress levels recently, maybe this is more appropriate.
Yay! Comment numbers are back!
And may I extend my sympathies to the webmistress? Getting CSS to work on every browser is a nightmare. CSS bugs, browser bugs, howling users — none of those are fun to deal with.
You’re still tweaking the site?
its just an exercise to see how tortured the originalists’ backfilled “logic” to justify their preferred outcome is.
eta: my first post at the new and improved multi-hued blue satan. i like it.
@eemom: I’m largely sympathetic to your view over John’s, but do you think oral arguments make any difference on how the judges vote? We are getting all this media focus on how grueling this argument is, but does it really have any effect?
Well, I SPURN your bait, John Cole. I am done banging my head on this keyboard.
I will leave you to the company of others who glory in ignorance and in witless self-assurance that public entities are hellbent on fucking them over — i.e., the teatards. Enjoy.
That the conservative justices are movement conservatives is beyond controversy. That they will overturn ACA is not as certain.
The health care debate is a gift that keeps giving for conservatives. They don’t want to win; they want an issue. Abortion as an issue is getting grey around the temples, and they are getting close to milking every last vote out of it. It’s time for a new, galvanizing issue across the conservative base, and ACA is it.
Conservatives can chip away at ACA for decades while complaining about liberals “shoving it down our throats.” They can moan about liberal justices stealing democracy and liberal politicians picking their pockets. Every death and injury for decades can be blamed on Obamacare. They don’t want to overturn ACA; they want an issue to rally the troops. Don’t assume that what they say they want is what they actually want.
Not cynical, but spectacularly obtuse.
Back when ACA was passed, I said to anyone I knew that would listen that the individual mandate was its chief vulnerability, and virtually guaranteed that it would be overturned by the Supremes on constitutional grounds. And yet the liberal beltway wisdom was that this was a ridiculous possiblity. Not looking so sure now, is it?
I still say the law gets upheld, because Kennedy and Roberts, at least, will be more inclined to side with insurance companies than with movement conservatism. And the insurance companies know that if the ACA is tossed over the mandate, there is going to pretty quickly arise a public outcry to reinstate the other aspects of the ACA (no rescission, no pre-existing condition restrictions, children staying on their parents’ insurance, etc.), and those other parts of the ACA, without the mandate, will really put the screws to the insurance business.
Agreed. I didn’t see the new site design until today so I’m still trying to get caught up with new stuff like having to use the underlines to separate paragraphs. Some of us don’t visit B-J every weekend.
I wonder if Roberts is going to want his legacy to be denying people healthcare? Because that’s how a decision overturning it will be remembered. The Supremes will be thinking of their legacies in addition to any other arguments and motivations they might have.
“The power of accurate observation is commonly called cynicism by those who have not got it.” G.B Shaw
What’s so obtuse about Cole’s argument? It’s not exactly out of the realm of possibility that the Court will rule down the line according to party/political affiliation, precedent or constitutional theory be damned.
Why is the author’s name in such tiny letters?
For the love of FSM please stop using [br] to create white space.
Agree with you, John. I don’t know which way the Court will rule on this, but after Bush v. Gore and Citizens United, anyone who thinks they are guided by precedent or the rule of law in general is living in a dream world.
Another factor making me cautiously optimistic is the fact that it is an election year, and I suspect that the Fascist Five are leery of generating a 5-4 opinion that will be as divisive as Citizens United to be handed down five months before the election. Back in 2000, the Supreme Court shocked me by handing down a 7-2 opinion (written by Rehnquist!) that reaffirmed Miranda v. Arizona. And then it occurred to me that Rehnquist was smart enough to know that overturning Miranda the summer before a close election would confirm everything the Democrats were saying about the importance of the Supreme Court in voting for a President.
They got away with the purely political Bush v. Gore because they basically wrote it in a way where it had no precedential value. I think they’d have more trouble striking down the ACA without creating a kind of avalanche of problems regarding federal governance. I may very well eat my words in a few months, but i’m thinking 7-2 or 6-3 upholding the ACA.
Also, Citizens United might, just might, serve as a caution to someone like Kennedy about trusting his crazy right wing colleagues.
There’s a vain hope. Between the deflection into new and innovating channels and the extra dose of bitching it inspires, this should be a long and tangled thread.
ok, test code
Veddy happy with code, serif! courier!
looks like these changes have borked the pie filter. i’ll give it another update later today.
@cleek: Thanks, cleek.
Pundits gotta pund. It’s their nature. Ya know, like scorpions and such.
Still, let’s see the actual decisions. Even if there is an adverse ruling, the dissents may point a direction for the future.
And either way, the ruling may have a significant impact on how voters view the Court, and so may have a rippling impact on the presidential election.
So no matter what, the outcome will be more than political theater as usual.
I agree to a certain extent, but I don’t think Roberts sole goal is to cut the government’s power. He seems to me to support executive authority and the welfare of corporations whenever possible (hence citizens united). I suspect he will realize that Obamacare is the best way to have universal coverage (which he may not agree with but has to realize is somewhat popular) and keep the private insurance system intact, and the mandate delivers millions of customers into the open arms of the insurance companies. So they would have to invalidate the whole law as simply invalidating the mandate is the insurance companies nightmare, and I’m not sure he’s willing to go that far.
I don’t agree with John, but I honestly can’t blame people, particularly non-lawyers, for being cynical about the Supreme Court in the wake of decisions like Bush v. Gore. Although I’d be kind of curious to know what John thought about Bush v. Gore at the time.
My own opinion is just a guess too, even though I am a long-time Court-watcher. (I once had a conversation with an attractive girl that went something like “So who’s your favorite Supreme Court Justice?” “Really, mine too!”) But I disagree with the conventional wisdom that it will be a 5-4 decision with Kennedy casting the swing vote. I think it will be at least 6-3 on most, if not all, of the issues. I think Thomas and probably Alito are the only votes that are necessarily out of play.
Yay, the centered text is gone! (John said stop bitching, he didn’t issue a fatwa against happy comments…)
I’m sorry if it makes me spectacularly obtuse or whatever, but I don’t think anything said during the oral arguments matters a whit. They are going to vote how they want to no matter what, and I think they already have their minds made up.
Jim, Foolish Literalist
COLE IS REFUDIATING MY FIRST AMENDMENT LIBERERTIES
I hope the optimists of various persuasions are right, but I share Cole’s pessimism.
Can we have the “next post” “previous post” buttons on the bottom again? I really liked that feature, and I hate having to roll back up to the top.
It’s running so well on my old desktop that I’m letting the ads show. Thought John would need the money to pay for the fixes.
Now if we could get the webmistress to fix some of the other disasters on the web: DK, HuffPost, TPM…
With the most recent round of tweaks the site looks really good.
I understand mindless cynicism is de rigueur for Mr. Cole and this blog generally. But this comment displays an extraordinary ignorance of the voting patterns of the “conservative” and “liberal” blocs of the current court over the past seven years. It certainly demonstrates no recognition that the “conservative” members of the Court have been particularly solicitous and protective of free speech — and, yes, I’m setting aside the controversial Citizens United in that assessment. It doesn’t take into account the unusual and promising alignments of Scalia and Thomas with the “liberal” members of the court on criminal rights. It’s just generally ignorant, obscurantist, and unbefitting of the moderator of an otherwise informed blog. These matters could be easily settled with a cursory google search, but who cares when the conclusions feel so right.
I’m afraid that Bush v. Gore made me highly skeptical of everything that self-styled conservatives say and do.
I expect Roberts/Alito/Thomas/Scalia to issue a purely political decision on the ACA. Watch them magically replace the do-anything deference that they usually give Congress on, e.g., criminal statutes, with a searching inquiry into the policy implications of that balancing-of-balancings that constitutes the ACA. “Judicial restraint”? What the Hell is that?
Also too look for the crazies to pull another this-case-presents-special-considerations-and-thus-isn’t-precedent-for-anything-else con.
@danimal: I really don’t think the political dynamic for ACA is anything like Roe.
With Roe, you have this “murdered babies!” argument that both resonates with religious zealots and isn’t provably false (i.e. who can say that blastocysts don’t have souls?). Plus the notion is that it’s only stinking harlots who need abortions anyway.
But everybody needs health care, and everybody is being screwed by the insurance companies. The Alaskan Bint came up with Death Panels, but it’s pretty clear they are imaginary, as is the threat of Soze-al-izm! The further along ACA’s implementation is, the weaker its opposition gets (unlike Roe).
Even now one of the more convincing arguments against SCOTUS overturning the whole thing is that it’s already part of the economic landscape. Many large corporations are going to be in a world of hurt if their forward planning for ACA gets turned upside down.
Also, too, the already-in-place parts of ACA are going to cause major problems to the GOP if they try to get rid of them. Eliminating medical Loss Ratio requirements, bringing back pre-exiting condition nightmares etc. will be bad news politically.
Finally, the mandate may be politically vulnerable, but killing just the mandate and leaving the rest is much worse for the insurance companies than just leaving the whole thing in place. If they want to kill it, they have to kill the whole thing, not just the mandate. I don’t think they have the stomach for that.
@John Cole: It’s not really as simple as party or ideological lines.
Scalia actually I think is the lynch pin to the entire thing. Scalia has, surprising as it may in fact be, taken a pretty broad view of the Commerce Clause (see Raich). More importantly, take a look at the 6th Circuit ruling. It was written by a former Scalia clerk using a significant amount of Scalia’s precedents. It was basically a signal to the Court and Scalia saying, if you are going to be consistent, you have to uphold the law. Now, who knows what Scalia might do and he may very well try and distinguish Raich, but I have a feeling he won’t.
From everything that I’ve read and what I’ve discussed with some of my law professors, the belief is that it is probably going to be 5-4 or even 6-3 in favor of upholding the law. This is so much of a political football that I think the Court wants to handle it and get it out of the way.
Democratic Nihilist, Keeper Of Party Purity
What a fuckin’ sad joke. We all know that this comes out 5-4, and the only determining factor is which side of Kennedy’s body his colostomy bag is attached to the day that he writes his deciding ruling.
The Supreme Court no longer decides legal questions. They just pass the legislation that Congress is too scared to pass.
If I write in all caps, does the grey “Says” change to “Shouts”?
I just can’t resist snarking on how apropos the mis-spelling “lynch pin” is to the topic of Scalia.
I’m with Cole on this one – no way the conservative homophobes in robes gonna approve anything to do with man dates.
In terms of “the arguments don’t matter, the judge does”, I think that’s true in alot of cases, even where the breakdown isn’t classic 5-4. Arguments are the equivalent of debate in Congress: people make up their minds on the issues, but not on the specific points raised during discussion.
The question here is, are the rightie justices truly willing to act as pure political beings here, or will they rule somewhat in line with their own histories and the history of jurisprudence? I don’t “know” the outcome any more than anyone else, but it’s less simple than “these jokers just vote the result they want”. It’s possible they’ll do that — as they did in Bush v. Gore — but it’s also possible there’s some sense of judicial shame or even responsibility involved. Because basically all legal scholars say an overturning here would unleash a whirlwind on American commerce, and that’s not something even a Roberts would do lightly.
@John Cole: Gotta disagree. Even if you assume they are going into this inclined to vote one way or another, the content of the oral arguments can provide (or deny) a line of reasoning that they can seize upon to justify their vote. I don’t think it’ll stop unrepentant hacks like Alito or Thomas, but Roberts and Scalia might be given pause by a particularly effective argument that would require them to deliver a much more convoluted opinion in order to justify voting the way they are inclined to.
Also, I have to agree with those who’ve noted that Roberts is very much in the corporatist vein of conservatism, and given that the ACA is in fact good for most businesses his ideological preferences might actually work in our favor.
Here’s something on the other big court case in the news
@Face: Also, why “Says”, and why with a capital “S”? Wouldn’t “writes” be more appropriate?
The “says” at the beginning of every comment makes me feel like I’m on a MUSH.
@Tonal Crow: Hahaha. I hadn’t even realized I did that. Thanks for pointing that out to me.
/shows myself the door
General Stuck (Bravo Nope Zero)
I don’t dismiss the legal arguments that the current SCOTUS would have to ignore to gut the ACA, but I also don’t believe those are anything like a guarantee, that the current SCOTUS won’t make a landmark decision to take the country in a very different direction, and put some sizable limits on federal power. Either we are entering a vortex of political upheaval, or we aren’t, and all my senses tell me we are. And the SCOTUS is not above joining in for whatever pol side they favor, whether it be the 1850’s, the 1930’s or the second decade in the 21 century. The right wing is in a state of existential fear of their world view viability and legacy for ruling this country, and about nothing is off the table for what they may or may not do. Including, and maybe especially the Supreme Court.
“It’s not really as simple as party or ideological lines.”
It may not be quite AS simple as that, but at bottom that’s what Court decisions usually come down to.
Davis X. Machina
Anthony Kennedy’s ego is one of the few man-made objects visible from earth orbit. In Bush v. Gore, the rest of the majority were able to persuade him that only one lonely man from Sacramento, and his courageous vote, stood between us and tanks in the street.
Given sufficient and similar smoke blown up his ass, he’s capable of similar.
Any man capable of writing this: ““We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” is sufficiently detached from the world the rest of us live in so as to be capable of anything.
I’m pretty attractive to the ladies, too, if you set aside my gut, back hair, and thinning hairline in that assessment.
General Stuck (Bravo Nope Zero)
Most of the expert types I read, say that it is not so much what they say during oral arguments, but how they say it, or the basic tone of the justices.
ok. the pie filter is caught up to the state of things as of the time of this comment.
The Citizens United decision gives us the reason that this court will uphold the ACA. The CU decision shows that this court will expand corporate power at every turn, so they will absolutely love a law that forces everyone in America to give money to private corporations.
@Thomas F: May I suggest The Volokh Conspiracy?
Absolutely correct. Which is why they will uphold the ACA and the mandate. They love expanding corporate power.
You don’t have to roll up, there are two up arrows that will take you to the top of the post.
But I’d like to see the previous and next post links at the bottom back as well.
Which is exactly why the Democrats will never let that happen.
I would say that in the years since Bush v. Gore, I’ve become increasingly cynical that any Supreme Court decision has anything to do with actual law and not just the partisan desires of the justices themselves.
I wouldn’t say it’s just ENTIRELY that, but increasingly, it seems that this is the modern reality of the federal court system.
Oh, for fuck’s sake. Was Bush v. Gore an aberration or a harbinger? Most lawyers and Court watchers are likely to say aberration. Citizens United is a different animal; I think it was wrongly decided, but it is not out of line with precedent. It was, in effect, a legitimate decision with which I disagree. Scalia, with his decision in Raich, has bound his own hands. He generallytakes enough pride in his work that he is unlikely to turn his back on Raich this soon. As far as Roberts goes, if Scalia is voting to uphold the law, Roberts will as well. The CJ assigns the writing of the majority opinion if he votes with the majority; otherwise it is assigned by the senior Associate Justice on the majority. I doubt Roberts wants that in the hands of Stevens.
Judas Escargot, Your Postmodern Neighbor
None of the Pessimists are arguing that the ACA shouldn’t be upheld on the merits, at all, so yelling at us for not understanding every “nuance” of the legal arguments is just sideband noise.
We’re saying that we do not trust this court to behave rationally, period.
Ginsberg. Stevens retired, remember?
@Yevgraf: I agree. The ‘Home’ button is your friend until they return.
@Davis X. Machina:
Voter ID is a small and inconsequential burden.
Unless you’re one of the 700,000 Hispanics in Texas who don’t have it, and have to get to a county where they can get it, w/out a drivers license.
It’s a big and diverse country. I think the esteemed justices should get out more, before waving shit off as “inconsequential”
I thought the partisan desires of the justices had always been the way the Supreme Court ruled. If that is not the case then why does it matter if they are appointed by a liberal or a conservative administration?
Roe isn’t the only precedent in jeopardy of the right-wingers get another justice. Here’s a few more:
Lawrence v. Texas
Griswold v. Connecticut
Miranda v. Arizona
Loving v. Virginia
The School Prayer case (don’t remember the names)
Brown v. Board of Education
And those were just off the top of this non-lawyer’s head.
Davis X. Machina
@kay: It’s the key line from Citizen’s United, but the point holds…his world is not our world.
@eemom: Oops. I knew that. The point stands even more strongly. Like Roberts let’s someone with lady parts assign the opinion….
@Tonal Crow: Brain lock. D’oh.
@goethean: Goethean restated: Rather than address your argument, I hide behind my snark and exile you to an ideologically divergent blog! No room for inconvenient facts here. The narrative trumps all!
@Catsy: Back when the Internet was very new, someone convinced me to log onto a MUD, even though I had no idea what it was. I quickly puzzled out that it was something like Zork, only with other people. One of my first memories is someone saying, “First of all, ‘Steve’, you can stop putting quotation marks around everything you say.” And hey, listen, it’s not my fault that I took the login screen literally when it asked, “What is your name?”
Thank you for this. I just read Raich today and Scalia would have to become a pretzel of the high order to be able to escape his own argument. I encourage all the people here to read his opinion to see exactly why this is on point.
@Judas Escargot, Your Postmodern Neighbor:
I don’t think I’d phrase it this way. Overturning ACA is quite rational given their worldview.
@Valdivia: An even better read is the oral argument transcript from Raich, where Scalia completely took apart Professor Randy Barnett, who is probably the most famous advocate for the anti-mandate position in the current debate. Barnett is now arguing that oh, of course Raich was a completely different case and Scalia wouldn’t have to change his mind at all to rule against the mandate, but he is pushing it with that one. The only basis on which Raich might be distinguishable is that the Constitution seems to have this unwritten “drug exception” that keeps affecting the outcome of cases (see, for example, the Bong Hits 4 Jesus case).
peach flavored shampoo
I think what many of those who expect a reversal feel is that his hands are never bound. That he doesn’t want nor care to be consistent, because, well, who’s going to call him on it? And even if they do, why would he care? Lifetime appointment and all.
Jim, Foolish Literalist
Tea bagger on Tweety show just now: Not having health insurance doesn’t mean you can’t get health care. Doctors take the hippocratic oath.
@Valdivia: not necessarily.
How can you say that when Glenn Greenwald whole heartily supported CitzensUnitedNotTimid?
How dare you say Glenn supports corporatism!
Ordovician Bighorn Dolomite (formerly rarely seen poster Fe E)
I’m not really sure your pomposity is helping you much in this thread. If people wihtout law degrees leave this thread there’d be about four commenters talking back and forth–and the majority of them have grad school under their belts. So go ahead and make your points, but replying with stilted, needlessly polysyllabic prose isn’t going to impress anyone.
@peach flavored shampoo: My point was that Scalia probably cares. Also too, he takes a certain perverse pride in his occasional “liberal” decisions. I also know that I am unlikely to convince anyone who sees the Court as a purely political animal.
@cleek: Thank you!
@Jim, Foolish Literalist:
So the Tea Party credo remains intact: “we don’t want to pay for stuff we use!”
It was nice to see the doctors outside the court, supporting the law. They looked slightly embarrassed to be assembling publicly,? which is always endearing and human.
No One of Consequence
I think eventually the Pubs are going to have to switch up their strategy. The Rovian bullshit of attacking your opponent for your own greatest weakness is sooner or later going to be picked up as telegraphing their punches to the Dems.
It is silly when you look at it objectively. Had we a media worthy of the name, they would ask some hard questions and print the truth: Activist Judges is exactly what they want. They want strict Constitutionalists who will interpret the Constitution their way.
Sometimes I wonder if the modern GOP is not double-dog-daring the Nation as a whole to call it on the crazy and the bullshit. I am really starting to think that they are not even trying anymore. And I still remember the days of wanting to avoid appearances of impropriety. Just the appearance of it, mind you.
How can we get back to the business of improving the lives of every American, the security (on all levels) of our nation, and the welfare of our People?
Peace, (an idea whose time may very well have come, again),
I’ll be as obtuse, cynical and simplistic as Cole: they will rule that states can mandate, but feds can’t. It fits the key scenario – auto insurance. It limits the Commerce Clause with a key genuflection to states’ rights. It makes Obama look weak and foolish. It leaves the entire health care situation in the hand of states, who cannot negotiate with pharma and whose legislators and regulators are more stupid and more corruptible than the Feds. And it frustrates all American citizens with their powerless government, which is the most important goal of Roberts.
@David Koch: Better trolls, please.
IANAL, but parsing the comments of those who are (aka who claim to be and make it sound plausible), it sounds to me like a 6-3 or perhaps even a 7-2 vote in favor of upholding is more likely than a 5-4 vote to strike down the ACA.
This leaves me thinking that the justices themselves may be gaming out which way Kennedy is going to fall and Roberts at least will want to be on the majority side, per OO’s comment about who gets chosen to write the opinion. Factor that in and then it seems to me that Scalia, while he might be tempted to tie himself into an intellectual pretzel if the opportunity were there to do so and in doing so to strike down the ACA, is hardly likely to expose himself that baldly in a losing effort.
In other words, if it looks very likely that we have at least 5 votes to uphold, purely in terms of the politics of the court, look for a bandwagon effect to bring an additional 1-2 justices on board the majority decision.
This seems like one of those occasions when it is good to remember the difference between skepticism and cynicism.
And don’t forget, ALEC has already drafted the Model State All My Money Goes to Pharma Act to replace ACA on the state level.
I am having flashbacks to 2000 when we were told that the justices were all about states rights, not to worry, the law was on our side.
Until bush v. Gore, I actually believed that the supreme court was above politics and partisanship. Isn’t that charming? I was so naive. My flashbacks bring back the despair of not just having the ruling be so wrong, but of having my faith in the highest court in the land come crashing down.
II haven’t been able to get myself to read any of the details of the arguments because I think prevents and the law just don’t matter.
Our only hope in this, I think, is a lot of publicity about Bush v. Gore and Citizens United, in the hopes that maybe some shred of pride will win out and these justices won’t want to go down in history as partisan hacks. They are 3/4 of the way there anyway, with Citizens United.
I used to believe the pope was a holy man, too, not just the best politician in the church. How quaint.
So when will the ruling be announced? I guess I need to know the ending of this movie before I can go back and watch the story.
Just testing. Sorry for the spam.
@David Koch: Maybe you know this, but Citizens United (founded in 1988) is actually a completely different organization from the Roger Stone operation with the obscene acronym (founded in 2008), although they are both conservative of course.
Though I respect Serwer a lot I think I am going to go with the argument made by someone I know and trust who teaches Law at Ann Arbor and has been looking at this for a while. He doesn’t think Scalia will save it but that he will have to contort himself to such an extent as to make all his precedents ridiculous-looking. His line is: he expects the Court to uphold it. But would not be surprised if they go totally political.
Thank you for making the numbers searchable!
Please please please don’t leave the indentation in the comments, though. For some reason, it makes reading the comments much less appealing.
I will read that too thanks.
I’m pretty sure some of them are; of course, I live in Kansas home of the corporate Koch. If Sam Brownback and Kris Kobach aren’t hellbent on fucking me over, I don’t know what the fuck they’re doing.
General Stuck (Bravo Nope Zero)
Okay, on Citizens United, we are told by our legal eagles that that decision was not really far off the legal mark, or not at all outside past jurisprudence. And I don’t doubt they are correct on this. But no matter how far or how securely that jurisprudence paves the way toward equating money with speech to the point of giving it 1st amendment protections, the last leap was done as a act of new law and new action, by the SCOTUS. There was no bridge, no matter how close to bringing money into the free speech tent, and across the great divide of the rational, and into that safe harbor constitutional protection. No court had done that deed, and that deed violated the common senses of everyone who cares about the absolute doctrine that money corrupts the political process, absolutely. And telling us that they don’t think it will absolutely corrupt the political process, was the height of magical thinking activism with a right wing bias. And that in the end, that decision was a political one, made to benefit one side of the spectrum. There was no assistance for making that final leap, from past law. It was made by the 5 wingnuts, flying on their own wings.
If you must feed it, feed it only pie. Any other nutrition makes trolls grow until they explode, and then the fragments grow into new trolls.
Ozymandias, King of Ants
Especially since Stevens isn’t on the court anymore.
Scalia is now the senior Associate Justice, isn’t he?
The big four, I agree, could care less about either the law or precedents. They are 100% movement conservatives, nothing else matters to them. Proof: Citizens United, no sane (actual, flesh and blood) person thinks like that.
Also too the tweek helps a lot. I was going blind trying to read the centered format.
While I totally understand the instinct to think Bush v. Gore pre-determines partisan crappy decisions forevah and evah, I think it is more complicated. As someone said above, Citizen’s United was a bad decision, but not necessarily a break with precedent. I (and lots of folks) disagreed with it, but it wasn’t the kind of bizarre exception that Bush v. Gore was.
Bush v. Gore was a mistake, and I think many justices would agree. But the biggest mistake was agreeing to grant cert in the case at all, followed by them not being able to reach any kind of good decision b/c they were inserting themselves into a process that didn’t really have a good role for the S.Ct. The Court has made other rulings since that weren’t crazily partisan in the same way…the previous decisions can usually lead you to the path you’d like – just view them either narrowly or broadly. A decent judge tries to think about the overall implications (legally) for the case. Bush v. Gore didn’t really have precedential value legally – there are unlikely to be similar cases in the future. The ACA case has massive precedential implication to tie the hands of every Congress and every government progream – including beloved corporatist benefiting program – on a going forward basis. Commerce clause decisions have some of the widest impact of any S.Ct. cases – far more legally than the free speech cases although those are more easily grasped by non-law dorks.
Here, I agree with those above who have said that Scalia is the determining factor – he’s likely to uphold the ACA based on Reich and his former clerk basically pre-writing his opinion in the Sixth Circuit. Scalia had a few good decisions in some of the habeas cases several years back (showing he isn’t always partisan and evil). And, while I disagree with him often on outcomes, doesn’t seem that prone to break with his own prior decisions. He’ll drag out legal principles rarely argued from 50 years ago and try to reverse them (or dissent about them in sarcastic and hilarious ways) but he doesn’t often (if ever) reverse himself.
Re: oral arguments, I think their purpose is more often for the justices to try to convince each other and/or preview their way of thinking to try to get allies or bargain to write the opinion. The most interesting dynamics are the back-and-forth of the questions when a staunch conservative justice asks, then the staunch liberal asks, etc. If anything truly new came up at oral argument, the attorneys are terrible. The best stuff should be in your brief. You hit the high points of things that can be helped by “real world” examples or try to kiss a little rear by favorably citing to one of the justices on the bench. It’s a bit like a primary debate near the end – you’re running for VP to a certain extent. Justices want to find allies and have an opinion joined by many or including their pet arguments. Nobody likes their majority – or god forbid plurality – opinion to have 3 dissents and 3 concurrences. It’s messy.
I’d wager this will be 6-3 or 7-2 to uphold.
Hoping this doesn’t post double as it seems that the site is doing that now but I wanted to say thank you for the considered comment on this. I think your point about the Justices arguing for each other is exactly where it is at. I think one should really pay attention to what Sotomayor and Kagan do that might sway Roberts, Kennedy and Scalia.
Davis X. Machina
I’m not worried about decent judges, I’m worried about the Court’s present majority.
@Ordovician Bighorn Dolomite (formerly rarely seen poster Fe E): Commenters aside, one of the people without said law degree on this thread happens to be the blog moderator who made the uninformed comment. Not that one needs a law degree to acquaint oneself with the voting alignments of the Roberts Court — as I said, it’s quite easy to obtain on the internets. And I don’t need far too many syllables to make that point.
Davis X. Machina
A clearer example of ‘draw your curves first, then plot your points’ jurisprudence you’ll never see — and from essentially this court. (Yeah, Kagan and Sotomayor are different, but the members of the majority in that case are still there….)
Has Alito had any actual role in Commerce Clause rulings to this point that we can look to? Or are we just expecting him to vote based on Thomas’ dissent in Raich, and/or relying on something in Lopez or Morrison? It would seem to me that, not only would Scalia have to twist himself into a pretzel to essentially overturn Raich a mere 7 years later, but so would Thomas or Alito. I haven’t been watching the court much in recent years, so while I assume Thomas would be only too happy to take that ideological stand and completely ignore precedent to expand his incredibly obtuse definition of what actually constitutes interstate commerce, I guess I don’t know if Alito is equally political.
Relatedly, I’ll go read Raich, but someone with a J.D. give me the shorthand – what was the distinction made there from the primary Commerce Clause restricting cases from the ’90’s?
@Ozymandias, King of Ants: Yes, I mea culpa-ed on that a couple of times now. I think I will just go ahead and balme auto-correct. Scalia would be the senior if he is on the majority side to uphold. If he isn’t, it will be Ginsburg. No chance Thomas votes to uphold the law.
General Stuck (Bravo Nope Zero)
Health Care accounts for 1/6 of our total economy. And it goes to the very core of our security as human beings in a country of wealth. There simply isn’t another case this monumental, at least in the past 40 years, and if you listen to the wingnuts, that would be like forever since the founding. Past precedent ruling the day over ACA? I wouldn’t and don’t count on it. Because nothing at all compares to this case, in all it’s weighty ramifications. It would be the manna from heaven the wingnuts are clamoring for in their hour of darkest need. And you can bet the farm that is not lost on the 5 wingnuts of consequence.
@dollared: This. And your #98 too. Perfect fit for the state’s rights blather the GOP will be running on by the fall, and will neutralize Romneycare as the anchor around Romney’s neck with the base. He can stand by Romneycare as the right answer for MA while yammering that other states can do what they please with health care. And of course, the big prizes go to Big Pharma, who won’t have to negotiate with individual states, and to Big Insurance, which can go back to business as usual (in most states) by not having to accept pre-existing or the 20% cap on administration. Don’t be naive, folks, this is how it will go down.
wait, i don’t understand. the firebaggers and emoprogs say ACA is a great for corporations, but then people like you and noted corporatist Paul Krugman tell me, killing the bill and returning to the prior status quo will be great for corporations. Oh, who to believe: the firebaggers or K-Thug?
Bighorn Ordovician Dolomite
My point with ThomasF is just that when somebody goes out of their way to demonstrate how smart they are their argument is usually a bit weak.
When folks like Cole and others leave the path of empirical arguments and enter the foggy swamps of emotion-based debate, their reasoning process is circular and therefore similar to that of right wingers. This list below contains a few of the reality-based views which look at the nature of the court and avoids and emotional laden responses to a few of it recent decisions.
Yes this court has done some hinky things, but I doubt that more than 2 or 3 will find a compelling reason to toss ACA.
@Keith G: They said that about counting ballots in 2000, too.
Trust no judge. Especially not the ones currently sitting on the Supreme Court. Even the O’Connors will find an excuse to do something going against the law and feel ‘bad’ about it later.
The repudiation of the Heritage Foundation created mandate has been politically necessary for the GOP to keep the libertarian and corporatist wings of the party together.
There is no sound conservative reason to oppose the mandate, so the scrambling and prevarication of the court will be put to the service of cooling off the wingnut marks, not overturning some of Scalia’s landmark decisions in order to paper over Rove and Limbaugh’s excesses.