She also happens to be right:
Nearly a week has gone by since the Supreme Court’s unexpected decision to enlist in the latest effort to destroy the Affordable Care Act, and the shock remains unabated. “This is Bush v. Gore all over again,” one friend said as we struggled to absorb the news last Friday afternoon. “No,” I replied. “It’s worse.”
What I meant was this: In the inconclusive aftermath of the 2000 presidential election, a growing sense of urgency, even crisis, gave rise to a plausible argument that someone had better do something soon to find out who would be the next president. True, a federal statute on the books defined the “someone” as Congress, but the Bush forces got to the Supreme Court first with a case that fell within the court’s jurisdiction. The 5-to-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas, George W. Bush. I disagreed with the decision and considered the contorted way the majority deployed the Constitution’s equal-protection guarantee to be ludicrous. But in the years since, I’ve often felt like the last progressive willing to defend the court for getting involved when it did.
That’s not the case here. There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.
Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits. (Remember that just a month ago, the absence of a circuit conflict led the justices to decline to hear seven same-sex marriage cases?) In the King case, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., unanimously upheld the government’s position that the tax subsidy is available to those who buy insurance on the federally run exchanges that are now in operation in 36 states.
A panel of the United States Court of Appeals for the District of Columbia Circuit ruled 2-to-1 the other way, accepting the plaintiffs’ argument that the language of the statute limits the tax subsidies to those who buy insurance through the state exchanges, which only 14 states have chosen to set up. The full appeals court quickly vacated the panel’s judgment and agreed to rehear the case. The new argument was set for next month, and the briefs were already filed. The absence of a circuit conflict and an imminent rehearing by the country’s most important court of appeals would, in the past, have led the Supreme Court to refrain from getting involved.
So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was a conflict in the circuits on the constitutionality of the individual insurance mandate. So the Supreme Court’s grant of review was not only unexceptional but necessary: a neutral act. The popular belief then that the court’s intervention indicated hostility to the law was, at the least, premature.
Yep.
Punchy
Funny that Greenhouse got the SCOTUS duty and not, say, covering climate change and carbon dioxide emissions.
When even the most neutral of neutral observers see it, its a done deal. We wont have a functioning ACA at this time next year.
Punchy
Follow up: wont this set a precedent that every single word in every law can be parsed, determined to be ambiguous, and thus adjudicated? Isnt this the Mother of All Legal Disasters?
beltane
I have no idea why we’re sending troops to Iraq to fight ISIS when we have an American-killing terrorist organization firmly ensconced in power in Washington DC.
Omnes Omnibus
@Punchy:
If it happens, yes.
Nancy Ortiz
Linda Greenhouse knows what she’s talking about. Turns out she specializes in legal commentary about the Supremes. That’s the good news. The bad news is she is probably right about the Chief Justice. I think he sees his mission on the court as being something other than judging in the usual sense of the word. Judge for yourself and read her article. Well worth the time it takes. NancyO
Keith G
@Omnes Omnibus: IOW…Ebola!!
At least I hope so.
beltane
@Punchy: No, it will be like Bush v. Gore in that they will claim no precedent will be set. A Republcian law dismantling Social Security can be written in Teabonics and it will all be good with them.
Running on impeachment of the RW Supreme Court members might not be a bad thing for the Democrats. I want to see Mrs. Alito cry on TV again.
Morzer
@Punchy:
The SCOTUS today ruled that because the Democrats’ legislation in favor of Patriotic Apple Pie Day was printed on cream-colored paper…..
Omnes Omnibus
@Keith G: I’ll go out on a limb and say that the best case is 6-3 to uphold the provision. Worst case, 5-4 against. Beyond that, I have no idea.
Tommy
@Punchy: Parsing of every word of a law almost always happens. But until recently (1) Congress would change the wording on a pretty bi-partisan basis if there was a problem and (2) The courts would rule more on intent or not take the case at all.
redshirt
Is it time to take up arms against our oppressors?
beltane
Maybe the SCOTUS can experience typos on their pay statements. $0.00 is what Scalia and company need to be paid for the rest of their tenure.
Davis X. Machina
Correctly-oriented cadres know that the organs of the State — such as its courts — exist to serve the needs of the Party, because it is the Party, and not the State, that is the Vanguard of the Revolution. In fact, the Revolution will herald the withering away of the State.
All power to the soviets of
soldiers and peasantspreachers and hedge-fund managers!The Dangerman
I could easily be wrong but I don’t see the Justices mortally wounding Obamacare before 2016; it brings too many base voters to the polls (same as Rowe v. Wade, which could have gone down but for Kennedy).
Omnes Omnibus
@Tommy: That is not exactly the case. There are rules of statutory construction that courts apply. They allow a court to fix small drafting errors. According to those commonly accepted interpretation of those rules, this case should be tossed out on its ear.
Adam
If the SC gets rid of the subsidies, I’d be perfectly fine with Obama saying Roberts have made his decision, now let him enforce it.
redshirt
FYI I’m forming a super villain’s club – email me if you want to join. Or click on my name and comment.
Morzer
@efgoldman:
President Obama was impeached today for “attempted executive activity on a day ending with Y”.
beltane
@The Dangerman: Maybe they feel the can rig the system enough so that it wouldn’t even matter if the Republican party was actively hated by 75% of Americans. A minority can hold on to absolute power for quite a long time, at least until that tipping point is reached whereby the said minority falls from power and is actively hunted down by the majority.
Morzer
@The Dangerman:
Antonin Scalia has four words for you:
“If Not Now, When?”
mai naem mobile
@beltane: you are assuming people even know what the USSC is or does. There was some legit poll i saw where 35% of americans didn’t know the three branches of government. I got a new car and haven’t put my satellite radio in so ive been listening to local radio. A lot of music stations have no news. Local tv news is absolutely worthless. I’m guessing all my local anchors would not know the 9 USSC justices if they even know there’s 9. People need a civics lesson so badly.
redshirt
@beltane: Indeed.
Morzer
@beltane:
Apparently Democrats would need a 7 point lead to retake the House, so the GOP has pretty much rigged the system for white Southern apartheid for the foreseeable future.
The Bobs
I think Roberts will vote to maintain the subsidies. He knows that people will actually die if they stop it. He doesn’t care about the people, but he does care what people think of him.
Omnes Omnibus
@efgoldman: The thing is, if they do what people are suggesting they will, it is quite possible that it will create a huge judicial mess in the lower courts that they will eventually have untangle. Does Roberts want to fuck up his reputation in that way? I don’t know. But the legal effects of this case will go far beyond the issue of subsidies for federal exchanges.
patrick II
What does a state having its own exchange entail? It would be very easy to put a page in the front of the current federal exchange, have a nice gif saying “Wyoming” or whatever, accept only wyoming zip codes, and use the back processes of the current federal exchange. But, since zip code is preselected, only appropriate Wyoming plans would be shown. Since the exchange is privately contracted, any state could pay what I assume would be a small fee to do that, and wa la! a state exchange on the internet.
I assume that there are administrative requirements too, but what would they be?
Morzer
@The Bobs:
I wish I agreed with that view. This case should never have reached the Supreme Court, and the fact that the Corruptican Injustices agreed to take it is extremely worrying.
I can see two possible sources of hope:
1) The insurance companies won’t want to have to do everything over again.
2) Possibly this is Roberts’ way of saying “This controversy is over. PERIOD.”
I have more faith in 1.
The Other Bob
@redshirt:
Maybe.
The Dangerman
@beltane:
The Hanging (Chad) Games. Sign me up. Do we get choices of weaponry?
If hunting licenses are required, I’m thinking we could retire the National Debt.
Omnes Omnibus
@Morzer: It takes four to grant cert.; it takes five to win.
FromTheBackOfTheRoom
An Eleventh Dimensional Chess move here, a little Compromise there and I’m sure bipartisan comity will blossom and confirm mandated private health insurance for the people (without that Socialist government financial assistance, of course).
beltane
@Morzer: I hope I live to see the day when blame is properly apportioned to those white Southern degenerates. They cling to their guns because the thought of justice terrifies them.
The Other Bob
Just to make you feel even better, Republican State legislatures in Presidential blue states are starting the effort to spilt the electoral vote in blue states, while keeping red states winner-take-all.
http://detroit.cbslocal.com/2014/11/13/new-bill-would-split-michigan-electoral-votes/
Omnes Omnibus
@efgoldman: I understand that, but voting for something that is going to make a shitload of work for them in the future might be a bridge too far for Roberts. He is actively evil, but he is also damned smart.
Omnes Omnibus
@FromTheBackOfTheRoom: Cool. Great non sequitur, dude.
beltane
@The Other Bob: I saw that earlier today. It may help them for another few decades but at a very high cost to their supporters. The more they delegitimize they system, the more people will realize that the only way to get rid of Republicans is to actually get rid of them.
Tommy
@patrick II: Yes what you said.
Of I am not mistaken Illinois is the only state that has the “dual” exchange. Or that Illinois WITH the Federal government set-up our exchange in partnership. When I bought my plan I went through the Federal site, in the days/weeks after the program launched. Months later that was layered with the branding of the State of Illinois. When I go look for a plan upgrade Saturday I go through a site that is clearly for Illinois residents. Our site. But with the help of the Feds.
Makes me wonder how things are going to work out here if the SCOTUS rules this way or that way.
Morzer
@Omnes Omnibus:
True, but does anyone believe that any other Supreme Court would have granted cert to this moronically unnecessary case?
Mnemosyne (iPhone)
@Omnes Omnibus:
Conservatives are good at long-term planning, but very bad at predicting the consequences of those plans. Roberts may be an intelligent man, but that doesn’t necessarily mean he has enough common sense to see what the consequences of his action would be.
Morzer
@beltane:
A few decades is an awfully long time. People adjust and get used to it. Learned helplessness etc.
Tommy
@Omnes Omnibus:
That is what worries me. Say what you will about the man but it is clearly really, really smart. This is a fear I have. Our side thinks all the far right are dumb. Well more than a few are smart. Smarter than us and not knowing your enemy, well Sun Tzu would have a lot to say about that.
beltane
@Morzer: No regime lasts forever. The Republicans will not have their 1,000 year Reich.
Morzer
@Tommy:
Sun Zi advises generals: “Do what your enemy would be ashamed to do.” The GOP has never needed much encouragement to take that approach. We seem to be playing at pat-ball, when they are playing roller-ball.
catclub
@beltane: Well of course not. Robert Reich is a Democrat.
Morzer
@beltane:
The slightly less that 1,000 year Reich still managed to wreak havoc across the world, cost millions of dead and generally ruined the lives of millions more.
I’d rather not explore just how much the GOP could fuck up, given the White House.
Omnes Omnibus
@Morzer: No. This is why I won’t make a call on this case.
@Mnemosyne (iPhone): He is a judge. As a general rule, judges get rid of cases if they can. Appellate judges try to avoid creating future appellate cases if they can. A second year law student would notice the problems that would come out of kicking the legs out of basic statutory interpretation rules.
I don’t know what the Court will do, but I am not freaking out at this point.
AxelFoley
@FromTheBackOfTheRoom: Yeah, stay your ass in the back of the room.
AxelFoley
@Morzer: Heh, so we’ll be paying for lazy fucks staying home in 2010 for years. Good job, lefties.
Omnes Omnibus
@efgoldman:
This too shall pass.
Morzer
@Omnes Omnibus:
Like a slowly evolving kidney stone, to judge by the experience thus far.
Morzer
@efgoldman:
Cossacks!
wooflikeabear
I for one am cheering that the people who put republicans into power in red states will at least get what they wanted good and hard.
Omnes Omnibus
@wooflikeabear: Then you are kind of an asshole. In most states, more than 40% of the people who voted did not vote for the assholes. Do you really want millions of people to fucked over?
Cckids
@Morzer: It seems to me it will be more like an impacted bowel movement. It will take a long time, be extremely painful & inflict damage.
Omnes Omnibus
@efgoldman: I just can’t wish misery on people.
Major Major Major Major
@redshirt: I am intrigued by your ideas and wish to subscribe to your newsletter.
dance around in your bones
Guys and gals, I have no fucking clue who Linda Greenhouse is or why I should care about her opinions about anything.
Like they say, opinions are like assholes, everybody’s got one.
I’m in a bad mood, my ortho doc says I have to have a full hip replacement bu when I asked him about pain medication he said “I don’t believe in narcotics”. And I said said “Well,do you believe in PAIN!!!! Because I am in it 24/7”.
Fuck that shit. I believe he is a good doc and true, but his pain treatment sucks fucking balls.
dance around in your bones
P.S. I am watching Jeeves and Wooster to make me laugh.
Screw the pain.
Jim C
@dance around in your bones: “Linda Greenhouse (born January 9, 1947, New York City) is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Senior Fellow at Yale Law School.[1] She is a Pulitzer Prize winning reporter who covered the United States Supreme Court for nearly three decades for The New York Times.[2]”
“I have no … clue who Linda Greenhouse is …” I mean, really? Grab a mitt! This isn’t recondite information.
dance around in your bones
@Jim C: I i still don’t care,
She is a person like all of us persons and and as far as I am concerned her opinion don’t mean jack.
So sue me,
DivF
@dance around in your bones: once they’ve finished sewing you up surgeons can be morons – in some states he could be sued for malpractice. Go see a pain specialist.
bago
It could be a genius 1-2 move. Declare it a tax so that states can opt out, then use ambiguity around state wording to break the law’s spine.
Jim C
@dance around in your bones: Nice.
As the good doctor, Michael Stipe, once explained: Everybody hurts. Sometimes.
dance around in your bones
@Jim C: And everybody cries,
Which I frequently do in the middle of the night when my hip is giving me hell.
Mnemosyne (iPhone)
@dance around in your bones:
I don’t suppose it would be very reassuring to your doc if you explained that you’ve done so many drugs in your time that if you were going to get addicted, it would have happened by now? ?
As DivF said, you should ask for a referral to a pain specialist. If nothing else, you should at least be able to get a medical MJ card.
Gretchen
@dance around in your bones: @dance around in your bones: maybe look for a different ortho? I dont see how you can be a competent ortho and not believe in narcotics. Broken bones really hurt!
Woodrowfan
@Davis X. Machina:
frighteningly spot on.
Woodrowfan
when established free governments collapse, they tend to fall to pressure from the right, not the left. We don;t have to be a repeat of Germany in 1932-33, we could more easily be Greece in the 1960s or Chile circa 1973.
dance around in your bones
@Mnemosyne (iPhone): @Gretchen:
Thanks for the suggestions, you two :)
Unfortunately, I am a poor at the moment, so I am reliant on the SB County Health Clinic (which in my opinion is pretty good) or I would definitely look around for another ortho doc, He has a stellar reputation and aside from his weird no narcs stance, I trust him.
I guess I am lucky I’m not getting my leg sawed off w/o ANY anesthesia like during the Civil War!
I did wrangle about 40 Tramadol ou of him which I picked up last night (non-narcotic pain reliever) but it definitely won’t last until Dec. 9th.I guess I’ll have to go beg my PCP for another Norco scrip before then, They have recently changed the schedule of hydrocodone/apap where you need an actual hard copy/triplicate form to take to the farmacy. No phone in refills anymore.
Fuck my life, at least until I get my hip replaced! THEN will be a productive worker bee once again, which we all aspire to, no? Hahahahahhaah!!!!
chopper
normally I wouldn’t worry too much about this sort of case, but the fact that the scrotus deliberately cock-blocked the dc court of appeals to take on a case that rests on a typo is setting off some alarm bells.
dance around in your bones
@Mnemosyne (iPhone): @Gretchen:
Ok. I composed a long and thoughtful reply to both of you, and FYWP it seemed to disappear into some black hole. Perhaps it will show up in the future.
But just know that am dealing with the pain and even though Google Maps sends me in circles to get bac I guess the extra 2 miles is good exercise on a fractured hip? Hahahahhahahah!!!!
I was crying by the time I got home.
Matt McIrvin
@Punchy:
No, only when it was passed by Democrats.
Matt McIrvin
@The Dangerman:
I see this change as potentially bringing base voters to the polls against Obamacare, because the un-subsidized mandate turns the ACA into something onerous.
Matt McIrvin
@beltane: I’ve said before that I see the United States possibly evolving into something like apartheid-era South Africa, ruled by a reactionary white minority who solely possess the franchise and live holed up in fortified estates.
kindness
@dance around in your bones:
I’m really sorry about your hip and the discomfort it causes you.
This thread is about something far more important than you or your hip though. Please try to understand where some of us are coming from.
shortstop
The money quote:
It’s been hugely interesting to me, these last several years, to observe the different ways long-time courtwatchers, especially judges and attorneys I know, have reacted to the increasingly blatant politicization of SCOTUS. Only a few have jumped to the conclusion that the court can always be assumed to behave politically. Most, like Greenhouse, have been correctly cautious of automatically reading ethical shadiness into the court’s actions, but have inevitably come to accept that we are dealing with real corruption now. And a very few who can’t separate the court’s reputation from their own insecurities and sense of validation as practitioners of the law are still in (or mostly in) denial. It’s all been as much a lesson in the emotional makeup and frailties of the opiners as it’s been a useful critique of the current court.
Samuel Knight
Actually agree that this decision to intervene is worse, but disagree with why.
It’s worse because it follows Bush vs Gore, Citizens United and lots of other nakedly corporate decisions.
Bush vs Gore was a clearly manufactured false panic – a classic example of one side forcing a decision when they knew what the results would be. The GOP pushed the hysteria and the Dems bought into it. Same here. So don’t really think there’s a lot of difference.
Simply fourteen years ago the Supremes felt completely comfortable stopping vote-counting, picking a President, without any convincing rationale – and got away with it.
They learned that lesson very well, and are doing it again, and again, and again.
Samuel Knight
Second Historical Note:
I think one can argue that the Roberts Court is returning to much more the historical norm – the Supreme Court upholds the interest of the entrenched establishment no matter what it has to do to twist logic to get there.
There really is no logical reason why corporations should have all the rights (and not all of the responsibities) of actual people.
Separate but equal was always ridiculous. Labor Unions never clearly violated rights to free contracting… etc., the New Deal was not unconstitutional, etc.
The Warren Court was the great exception – but it was an exception. We are returning to the historical norm and like FDR had to decide, now the Dems have to decide again – well what are you going to do about it?
Mnemosyne (iPhone)
@kindness:
Really, you’re upset that there were off-topic comments after midnight? Believe it or not, not everyone is up to thoughtful, measured discussion in the middle of the night. Sometimes they’re looking for a place to vent.
Jebediah, RBG
@Mnemosyne (iPhone):
I thought it was an official Balloon Juice tradition that after a certain amount of discussion, all threads become open threads.
The Tragically Flip
@shortstop:
It’s also interesting that even the non-wingnut people defending the Court will at best only predict a 5-4 save on this. Oh, everything’s all right, “only” four supreme court justices view their primary function as supporting the Republican Party/Movement Conservativism’s goals.
The Tragically Flip
I wonder if there are any typos or drafting errors in any Roberts court decisions that Obama could willfully misinterpret in his favour?
dance around in your bones
@kindness: And your nym is kindness?
Thanks for that shot at my heart/hip.