As the Supreme Court begins to hear arguments about the constitutionality of the Affordable Care Act, I have a sick feeling in the pit of my stomach. I know that pretty much every legal scholar is predicting that the Court will uphold the law, but I wonder.
If I had to bet money, I’d probably agree with the consensus and predict an 8-1 decision in favor of Obamacare, with only Clarence Thomas objecting. But I also remember Bush v. Gore. And I think about how long and hard conservatives have worked to get a functional majority on the court. Right now, they seem to have a functional majority about half the time, with Justice Kennedy siding with big business at every opportunity, but not following along on many social and religious questions.
In this case, siding with big business means siding with the individual mandate, since the mandate provides millions of new customers to the insurance and pharmaceutical industries, and also makes the whole health care reform work financially for the insurers. Striking down the mandate would be a major blow to big business and cause all kinds of confusion and chaos. For these reasons, I foresee Justice Kennedy upholding the mandate.
If Alito and Roberts realize that the administration is going to win, they’ll probably fall in line. And Scalia will probably try to be as silent as possible since he won’t want to ruin his reputation among the wingnut faithful.
But if for some reason Kennedy is inclined to become a radical, I expect the rest of the conservative Justices to join him in striking down the individual mandate, and maybe even gutting the entire law. Conservatives have been waging an ideological war to the death, and the Court is their greatest weapon. Will they fail to use it now?
I can’t be certain. What I do feel confident about though is that Kennedy’s replacement on the Court will be the most influential Justice in a century or more. If a Republican replaces Kennedy, Roe v. Wade will be struck down. And you can go down the list of cases where Kennedy has sided with the liberals in 5-4 cases to see how things will change for the worse.
Ezra posted this tweet from a @conncarroll:
if Court strikes down Ocare, Romney has easy line to separate himself from Obama: “My law is constitutional. Yours was not.”
Since the only reason the modern GOP exists is to win elections, I expect the law to be struck down.
Necessity knows no law. And the only law is necessity.
But is Kennedy really part of this “modern GOP?”
If he had to run for his seat, the modern GOP would primary the living hell out of him.
Clearly the most important consequence of the upcoming presidential election, bar none. But a tough one to convince low-info voters about. Perhaps the attention to this case will get their attention and give them some more information (unlikely, though).
link
There is the argument that Roberts wants legacy bragging rights for bringing his court to a consensus and thus will bring this home for Obama. Slim argument when weighted against the money, power, influence and in the end arrogance the Court itself embraces.
These days you’re right, there just isn’t any security in knowing what the right thing to do is.
I want to scream at these opponents that crow that this is all about freedom…hey idiots some day a dire disease or accident will bring death a knockin at your family’s door and that will be the day that you will find out what losing your freedom really feels like. Ah yes, the social contract, their freedom does not equal social responsibility. I’m tired of paying through the nose for their irresponsible freedoms.
The way I see it, there are three votes for repeal (Thomas, Roberts, and Alito) but probably only one vote for repeal (Thomas) if repeal is not going to prevail.
There’s also a powerful incentive to punt the decision past the election, but the legal rational for doing it isn’t that strong and is made difficult because neither the plaintiffs nor the defendants are arguing for it.
Why would Roberts vote to uphold? Hasn’t the right made this a litmus test? Hasn’t Roberts been a faithful water carrier for the right? Why would that change now? Are you trying to say they have a guilty conscience after Citizens United?
There’s no doubt that the backlash from CU has taken Roberts by surprise. Hard to imagine a Supreme feeling guilt. But since the firestorm is still in his face, CU certainly does demand awareness of the moment.
On an average day I don’t doubt we’d lose this one in a heartbeat in this particular Court. But this is a legacy decision, history will be written. Boo linked earlier to this which lays it out.
He would probably vote to uphold if he realizes that Kennedy is going to vote to uphold. That would allow him to write the majority opinion or to decide who else writes it. And he’d rather have a 6-3, 7-2, or 8-1 decision than a 5-4 one.
I’d also expect Scalia and Alito to follow suit. There’s really no advantage to breaking all precedent unless you can prevail.
That’s the reality of it.
Why would Roberts vote to uphold?
He would vote to uphold if the law was going to be upheld regardless of how he voted, because (like Scott Brown) he values his image as someone who is reasonable and not just a partisan lackey, and uses situations in which his vote does not matter to cement that image.
Punting would solve their problem, though. There are many ways that ACA can fail to be implemented (e.g. President Romney could simply decline to enforce the act). If they punt, they can avoid pissing off their supporters too too much, and also avoid looking like self-contradictory idiots (as, for example, Scalia would if he voted to strike down the law).
The fact that it was SCOTUS itself rather than either of the parties who raised the ripeness issue — going so far as to have an independent attorney appointed to argue it — suggests that punting might turn out to be the preferred path for this court.
based on reports from inside the Court, they don’t seem interested in punting.
“Vanity, vanity, all is vanity.”
The only question is whether it is worth the outrage generated to crush Obama. If Citizens United had not happened Obama would lose instantly, but if they strike this law down they will lose institutional prestige in a very big way.
Follow the ego, thence goes the court.
Honest question because I don’t follow the personal or health lives of Supreme Court justices: who is likely to be replaced next? I know Ginsburg is not always in the best of health these days, but who might come after her?
Ginsburg is 79, Scalia is 76, Kennedy is 75, and Breyer is 73.
Other than Ginsburg, I am unaware of any health issues. So, age is all I have to go on.
So if we are lucky, the President might get to appoint 3 next term? And yes, I know what that means, but so be it.
this is a good primer.
It is. I suppose we could spend the next 4 days discussing the impact of reducing or expanding the role of the Commerce Act within govt (better than pacing I’m thinkin). It’s my understanding that the Court has ruled in favor of using the Commerce Act argument with items of smaller footprint, but after this ruling a whole lot could change.
And since the S’s aren’t biting for the concept that HCR is a ‘tax’ and so can’t be argued yet, that’s kind of an interesting morsel to chew. Not a tax eh?
So what do you think the chances are they strike down the mandate and NOTHING else?
almost zero.
Especially since both sides are arguing that the whole thing collapses without the mandate.
I think they will uphold the law.
I haven’t been right about a single damn thing this year so:
Yeah, they are SO going to knock it down and stomp the shit out of HCR.
I don’t see them striking down HCR. First off, they all realize the threat to the credibility of the court. Were that the only issue, following Bush v. Gore, one might wonder if it would be enough to carry the day. But this court is corporatist. I don’t see them squandering their credibility on something that doesn’t benefit their rich friends. Rather, I see them burnishing their credentials as distinguished, impartial jurists so they can vote as they please on a variety of other issues. Roberts doesn’t give a fig about the Tea Party. Neither does Kennedy. Alito might like appealing to them but he cares not for their agenda. Thomas is the only one crazy insane enough to put the court on the wrong side of a multi-generational battle that would severely undermine the court’s credibility in the short run and even worse in the long.
I expect this has been dealt with at length somewhere already, but in the event the ACA is struck down on account of the mandate, what implications would that have for Social Security (another gov’t mandated insurance program). How would that motivate the individual SCOTUS justices on the right? Are there implications for Medicare as well?
Interesting tac from the transcript is that they are claiming an injury to the states from the supposition that more people will be signing up to the medicaid they are entitled to.
http://www.politico.com/news/stories/0312/74477_Page3.html