The other day I wrote the following:
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.
For these sentiments, I was told I was “spectacularly obtuse” and “willfully ignorant” and displaying “extraordinary ignorance” and so forth. I’m in good company, I guess, as people start to realize what they just witnessed:
I didn’t mention this yesterday, but in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.
“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”
Which raises a question: How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?***
Keep in mind: Many observers, Obama officials included, spent weeks treating Scalia like a potential swing vote on the case. Lawyers defending the law wrote some of their briefs and opinions with an eye towards persuading Scalia. They consciously invoked Scalia’s own words from a 2005 opinion affirming Congress’s power to control local medical marijuana in hopes it signaled he might be open to the administration’s defense of the individual mandate.
This now looks like a terrible misjudgment. During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.
All of which is to say that the law’s proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.
People who thought Scalia would act rationally simply were not paying attention. EJ Dionne:
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.
Again, all of this is stuff from the teabagger anti-Obamacare manifesto. Chait:
The only thing Rosen truly failed to anticipate in his piece was how quickly Republican judges would pivot from impassioned defenses of judicial restraint to judicial activism when the opportunity arose to deploy it in their party’s behalf. In the piece, he described Antonin Scalia as a fierce opponent of this movement. Scalia, wrote Rosen, “was not in favor of striking down laws in the name of ambiguous and contestable economic rights.” At one point Scalia attacked the movement to read economic rights into the Constitution as a “threat to constitutional democracy.”
The spectacle before the Supreme Court this week is Republican justices seizing the chance to overturn the decisions of democratically-elected bodies. At times the deliberations of the Republican justices are impossible to distinguish from the deliberations of Republican senators. They are litigating the problem of adverse selection, and doing it very poorly. (Here are health economists Henry Aaron and Kevin Outterson tearing their hair out over the justices’ bungled attempts to describe the economic dynamics at work.)
Scalia himself offers the most blatant case. His famed thunderings against meddlesome judges are nowhere to be found. He is gleefully reversing his previous interpretation of the Commerce Clause, now that it is being deployed against big government liberals rather than pot smokers. He is railing against Obamacare like an angry Fox News-watching grandfather.
News flash- right wing hacks tend to act like right wing hacks. We’re talking about a conservative bloc whose wives openly work for tea party groups, we’re talking about hacks that speak privately to the tea party hacks. We’re talking about people who lie on their disclosure forms for decades to cover up the money their wives are receiving from wingnut welfare organizations.
Every one of these men was a member of the Federalist Society. Every single one of them was groomed for exactly what they are doing right now. This is their time to shine, to do what they have been groomed to do. When you train soldiers to fight, and drill their mission into them every day, and drill the rightness and correctness of their mission into them every day, and assure them they are fighting for truth, justice, and the American way, only a fool would be surprised that they are eager to go into combat.
Maybe I will still turn out to be wrong, and they will uphold the bill. If so, great. They’ll be in line with the 90% of legal scholars who laugh off the question of constitutionality. But given what we know about these guys, and given what we have seen, it is anything but ignorant or obtuse to think otherwise.