Home / General / Legitimacy and the ACA

Legitimacy and the ACA


Jon Cohn has a good post about a subject that’s on a lot of minds given the hostile reception the ACA received at the Supreme Court this week:  judicial legitimacy.  It’s worth unpacking the different things this might mean.   Certainly, from the standpoint of my personal normative evaluation, I agree with Jon that a decision striking down the ACA would not be legitimate.  If you’re going to strike down the centerpiece legislation of an incumbent administration, you’d better have better arguments than were on display over the last three days.  (I especially like the point that “if the justices strike down the Affordable Care Act, they would be stopping Congress and the President from achieving a constitutional goal via constitutional means just because they didn’t use constitutional phrasing to describe it.”)

Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public.   My guess is that it would not.   Certainly, I doubt that the 5-4 margin would matter, and nor do I think the fact that the ideological fault lines of the court now map precisely onto partisan divides means much.    I think Sandy Levinson is fundamentally right here:

So, when the five Republican conservatives decide how to vote, will they genuinely have to worry about a significant “backlash” against the Court in the country at large? The answer is almost definitely not. After all, the Republican base would praise the decision as “just what the Constitution means.” Another percentage would say something like “I ‘m not sure I agree with the decision, but, hey, I’m not a lawyer, and we hire the Supreme Court to tell us what the Constitution means, and even if they sometimes make mistakes, the country is blessed to have such an institution, and we should all accept its conclusion and move on.” Even partisan Democrats are likely only to fulminate, but how many will say, “You know, I think that Oliver Wendell Holmes and Mark Tushnet have gotten it right, and we should simply eliminate the very power of judicial review, at least with regard to any federal legislation. After all, we can always vote the congressional scoundrels out, but we don’t have that possibility with the politicians in robes who constitute the Supreme Court”?

Really, striking down the ACA isn’t even testing the far reaches of the Court’s power. The Court would have substantial support in Congress and, at least as of now, would appear to have the support of the majority of the public. I wish it weren’t so, but I don’t think the Court would face any significant loss of public legitimacy should they strike down the ACA.

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  • R Johnston

    The thing about public legitimacy is that if the Court strikes down the ACA then Medicare and Social Security are sure to follow in short order in lower courts. There is no principled way to avoid it unless you take an extreme lefty position and do something like declare social insurance to be a fundamental right and that privatization of core government functions is unconstitutional, and there are plenty of wingnut judges and litigants who would be happy to make it happen.

    Dealing with the resulting mess most certainly will affect the legitimacy of the Court in the eyes of the public. Reimposing Lochner has consequences beyond the particular case in which its reimposed and most of those consequences will not be popular at all.

    • Walt

      Don’t you think the SC will just invent some new principle that will allow Social Security and Medicare to stand? Declaring those un-Constitutional probably would destroy the Court’s legitimacy, and I’m sure they know it.

      A plausible scenario would be an entrepreneurial right-wing lower court that takes a shot at invalidating it. But I think higher courts would overturn.

      • R Johnston

        It’s not possible to invent such a principle and have it be at all coherent. You can’t believe otherwise after the debacle of the oral arguments where the complete tossing of the Necessary and Proper clause from the constitution was fully embraced. The Court might try, but the only fair interpretation of it’s ruling if it overturns the ACA will be a reimposition of Lochner, and there are hundreds of wingnut judges and hundreds of thousands of wingnut litigants out there who have no political savvy and will be eager to interpret it exactly that way.

        If the ACA goes down then at the very least the entire welfare state will be struck down, repeatedly, until the Supreme Court fixes its mistake or is otherwise made obsolete to the process.

        • shah8

          I also disagree with Scott, here.

          1) Even if the Court is not specifically delegitimized, the US system of gov’t as a whole will suffer a loss in prestige. Health care is far too much of a practical emergency in governance terms such that no such overturning will be forgotten.

          2) The Court wouldn’t really have the support of the public. They’d have the support of the loud crazies, but the inevitable walkback, like what we’re seeing from Citizens United via state courts, will put tremendous pressure on the Court to be rational.

          3) The Right Wing, just as much as it cares right now about Griswold, will almost certainly care about Lochner in the future. They *hate* the idea of Social Security, and there have been various stratagems, from means-testing (as a way to lower social acceptance), to straight up looting via personal accounts in the markets. A reversal of Lochner would be attempted next, and would put this judgment in question, should the justices decide to be crazy.

          4) There is no way we’re not having socialized medicine in the future, unless we expect to become a third world country. Attempting a rejection here delegitimizes a right-wing voice in any future construction of public health care. I think this will be a consideration.

          I think in general, what the Court is doing is asserting its prerogatives, make for some sloppy ass-kicking, and only make minor changes, for appearance’s sake (with negotiations happening behind closed doors).

          • Njorl

            A first world military and a first world ruling class in a third world country is the conservative ideal. It was inconceivable even a decade ago, but it is becoming more feasible each year.

            • Steve LaBonne

              Inconceivable? I’ve thought we were heading there since Reagan’s time, and the “progress” since then has been pretty steady. In many ways that’s what we are already. Shit, what are the first two things a lot of foreigners notice when they come here? First our fascist / surrealistic immigration procedures and then our shitty roads. Both have been proverbial characteristics of backward countries for may centuries.

              We are becoming what Helmut Kohl called the Soviet Union: Upper Volta with missiles.

              • DrDick

                I would agree with this.

              • Daragh McDowell

                The Russianist nerd in me cannot resist being slightly obnoxious, and correcting – Upper VOLGA with missiles.

                • mds

                  Upper VOLGA with missiles.

                  The third-world African nation to which the comparison is being made is called Upper Volga? That’s news.

                • rea

                  No, Kohl was comparing the USSR to the African country

                • Daragh McDowell

                  Urggh, my mistake. Working 12 hour shifts, 6 days a week at present…

                • rea

                  The fact that there has been no Upper Volta since ’84 excuses you.

                • Hogan

                  But we’ll always have Ouagadougou.

            • Uncle Kvetch

              A first world military and a first world ruling class in a third world country is the conservative ideal.

              I’m increasingly convinced that Putin’s Russia is the template for our future.

              • DocAmazing

                And Larry Summers is here to help us achieve that goal.

                • DrDick

                  I want to thank all of our cowardly anonytrolls for their generous donations to the NAACP, Planned Parenthood, and the Human Rights campaign. Everytime you post here, our hosts collect add revenues, which they use to fund organizations that make you even crazier than you already are. Have a great day!

              • Lee

                They have better transit and train service.

        • Walt

          Why? I see lots of possible distinctions the court could draw — tax versus penalty, activity versus inactivity, creating commerce versus existing commerce. These are all _stupid_, but they don’t entail throwing out the New Deal.

          • Timb

            How is Medicare different from those “ideas”?

            • John

              Medicare is a government program. It’s not “forcing” people to buy private insurance.

              • R Johnston

                It’s forcing people to buy Medicare. There is a zero percent chance that an arch-conservative court will see privatization as a point against a government program.

                • Furious Jorge

                  I would think an arch-conservative court will just see whatever it needs to see in order to protect the GOP.

                • joe from Lowell

                  It’s forcing people to buy Medicare.

                  You don’t think the courts can find a Constitutional distinction between the government compelling you to pay taxes, and the government compelling you to purchase a product from a private party?

              • timb

                Seriously? You know anyone with Medicare who doesn’t have private insurance subsidized by the government (Part D)?

        • Murc

          It’s not possible to invent such a principle and have it be at all coherent.

          Why is that going to stop them?

          The Court only answers to the Senate and the Senate has demonstrated it has no interest in ever exercising its oversight. Given that, if enough justices decide that their principle is “We’ll do what we can, but not self-destruct in the process” what’s to stop them? Gutting the entire welfare state is beyond their reach, but if promulgating a completely bizarre and incoherent legal theory lets them chip away at it, why should they worry about coherence?

          I mean, if we were dealing with honorable men, or at least justices who felt they should apply a consistent legal rubric, that would be different. There are four justices who are openly complete tools, and a fifth who, while I don’t think he’s a bad man per se, is deeply uncomfortable with this little thing called ‘modernity.’

          • I don’t believe in this selective formalism. They’ll only rule the entire New Deal unconstitutional if they want to. The silly “inactivity/activity” distinction is a signal that they don’t want to. If Republicans decide they want to be reduced to an electoral rump they can do it irrespective of how they decide this case.

            • Njorl

              If Republicans decide they want to be reduced to an electoral rump they can do it irrespective of how they decide this case.

              If conservatives could significantly damage the welfare state in a way which wasn’t ephemeral, it would be worth the electoral backlash to them. That would require holding 34 senate seats and 5 supreme court justices. If they could hold those long enough, (8 years?) the backlash would fade.

              Alternatively, if conservatives can hold onto those offices, 34 state legislatures could call for a Constitutional convention, nominally to recreate the welfare state via amendments. They could do that during the simultaneous brokered presidential nominating conventions.

              • kth

                What you are missing is that the Republican opposition (at the Senatorial/SCOTUS level) is not ideological but is purely political. If the ACA were passed by a Republican Congress (perfectly conceivable given its Heritage heritage), the Supremes would not have even agreed to hear the case.

                • Republicans never would have passed ACA. They developed those policies as an answer to more liberal ideas like single-payer, so that they could claim to be engaged and serious about the problem. Picking up those ideas and passing them was a brilliant low-down dirty trick, frankly.

                • joe from Lowell

                  If the ACA were passed by a Republican Congress (perfectly conceivable given its Heritage heritage)

                  What is it that makes people so credulous when conservatives claim to support something?

                  If it’s so conceivable that the Republicans would pass this bill, why didn’t they when they had the chance?

                • Njorl

                  Just because Heritage came up with the plan doesn’t mean they wanted it enacted. I believe it was supposed to be the “reasonable alternative” to whatever plan Democrats tried to pass. It’s easier to kill a popular bill when you offer congressmen an out.

                  The Democrats actually trying to pass that plan was a bit of a surprise. You now see that conservatives are always sure to make their alternative plans absolutely insane, so that there is no chance Democrats will adopt them – like Paul Ryan’s budget ideas.

            • Murc

              They’ll only rule the entire New Deal unconstitutional if they want to.

              that’s… kind of my point?

              Johnston is arguing that the Court wouldn’t want to be incoherent; that since they can’t come up with a coherent rationale to strike down the ACA without also gutting the New Deal, they’ll chose to leave both up.

              I’m saying that they don’t want to gut the New Deal (well, they do, but they would rather not deal with that fallout) but they DO want to gut the ACA, and that they don’t give a damn how.

          • I’m not sure “gutting the entire welfare state” really would be beyond their reach. The Republicans on the bench certainly have that as one of their ultimate goals, and I don’t doubt they could get Kennedy on board just for shits and giggles.

            If the Court announced no more ACA, no more Social Security, no more welfare, no more Medicare or Medicaid, and Sarah Palin should’ve won the last election, Congress would shrug and say “What can we do?” and the media would start asking when Presidente-for-Life Palin would be moving into the White House.

            • Scott Lemieux

              I didn’t say it was beyond their reach. I said that there’s no reason to believe they want to do it. If they did, they would use this case to just overrule Wickard rather than make these silly distinctions.

        • kth

          I’m kind of with the judicial realists here: the abolition of Social Security is not something John Roberts wants (because it isn’t in the institutional interest of the Republican party), so jurisprudence can be and will be crafted that kills ACA but spares Social Security.

          • Njorl

            I think you’re wrong about this. Killing Social Security is the single most important policy objective of the Republican party. I should say that it’s tied for first, along with getting away with killing Social Security. The latter is the tricky part.

            “To be thus is nothing; But to be safely thus. “

            • Holden Pattern

              What they’d have to do is borrow the “all deliberate speed” requirement from Brown for reforming SSRI and Medicare, or maybe they’d declare that “certain people” have a vested property interest, like, say the old people who vote Republican. That way, you can kill SSRI and Medicare for everyone except your target demographic. And the only “reform” that would survive subsequent challenges would be one that they like — IOW, complete destruction or naked privatization.

              I retract my prior disagreement with R Johnston on this front — the Wingtard SCOTUS can and will do anything they like/.

              • R Johnston

                Today is my favorite day on the internet. Thanks!

          • R Johnston

            How is that realistic? What is the potential distinction? Privatization is bad isn’t it, and there’s not much once you get beyond that that makes any sense at all. Even if the Supreme Court decides the case that way it will be based on an incoherent distinction that offers no significant direction to lower courts and leaves every individual government action in question until the Supreme Court decides the matter.

        • mpowell

          I think this is a very important observation. It is a big mistake to think of something like the Republican party as a single, even slightly rational, actor. It is many actors working towards different, frequently personal, ends. And many of them are morons. I’m not 100% what will happen if the ACA is overturned, but it is possible that the result will be very messy. What the public thinks is, of course, irrelevant. But I think you might start seeing some DC elites notice a problem with the way Republicans have been doing business. Those who are 100% committed to attaining a banana republic will always just double down, but you might see some centrists start backing away from accomodation. That would be the hope, anyways.

  • Incontinentia Buttocks

    Agree 100%.

    I’m not convinced the court will overturn the ACA.

    But if they do, the two commonly proposed silver linings–a huge backlash that will benefit the Dems or the swift arrival of single payer–both seem like the most foolish sort of wishful thinking.

    It seems clear to me that, as Dahlia Lithwick wrote in her pre-oral argument piece in Slate, the terrible public understanding and overwhelming dislike of the ACA is very significant…possibly even to the SCOTUS’s deliberation.

    [snark] Good thing that only Green Lantern Theorists believe that messaging has any effect on public opinion! Otherwise, one might be prone to hold the Democrats responsible for their utter failure to sell the ACA to the general public before or after its passage. [/snark]

    • UserGoogol

      Explaining how complex legislation works seems like an incredibly difficult for the bully pulpit to accomplish even if you assume that the bully pulpit is a relatively powerful institution. It’s one thing to try to shape the debate or whatever, but actually teaching people about how the world works is much harder. Teaching is hard enough for professional teachers to do in a classroom setting, one person giving a speech on TV has a much harder task.

      • Ben

        I think the idea is that the Democrats have not played the “build ideological institutions that work the media so that your framing and your arguments get to be treated as the default/conventional wisdom or repeated ad nauseum or introductions to topics that get covered” game nearly as well as the Republicans have. Not even the same class of game; Republicans are playing football while Democrats are playing jacks.

        Because the Republican party owns a 24-hour cable network. Dominates a medium tens of millions of people access every day. Runs dozens of think tanks that churn out spin on every topic. Magazines. Funds resume-building ideological internships and jobs which pump cadres of partisan warriors into the media ecosystem. Funds conferences and festivals to expose upper-echelon media types to their ideological commitments. The fucking Tea Party.

        And what does the Democratic party have in response? ThinkProgress? A website founded by a guy with a funny name that gained prominence because there was a giant vacuum that wasn’t being filled? A website that is devoted to mainly documenting the spin the Republican apparatus pumps out, which was founded by a Republican who grew a conscience? An advocacy group/PAC founded with a bipartisan focus by the flying toaster screensaver people which also grew into a vacuum and is spurned by the Administration?

        Please. Now, it may be true that Presidential speeches can’t effectively teach people about issues the vast majority of the team. But it’s impossible to maintain that the disparity in ideological media institutions doesn’t have an effect on the way people think about issues.

        This is mainly a criticism of the Democratic party as a whole, and it’s a criticism of the way it’s performed over the past thirty-ish years or so. No one person or group of people is primarily to blame, I think. (There’s a case to be made for Al From, but I’m not sure how convincing it is). And it’s a criticism from hindsight; it’s easy now to say “oh shoulda done that” but harder to have done so at the time. Yet there were more than a few people in the Republican party who realized the advantage to be gained, so the hindsight thing isn’t that large of an excuse.

        Nevertheless, we know those things now, and Obama has exacerbated those trends or at least took steps so that they would not be mitigated. He could have turned the ’08 campaign organization into a real grassroots advocacy force but made it lie fallow until he could use it for another election. He could have coordinated with MoveOn more closely so that they weren’t working at cross purposes while crafting the health care bill. Etc.

        These things by themselves aren’t enormous double-crosses or anything. But they’re detrimental actions indicative of an attitude that has created the huge disparity between Democrat and Republican ideological institutions which have a non-negligible effect on how people think about issues. So he deserves some criticism.

        • Lee

          Can the Democratic Party play the “build ideological institutions that work the media” game as well as the Republican Party? The ideological institutions built by the Republican Party work because they are filled with hacks who are ultimately most loyal to the GOP rather the conservative ideology.

          IMO this really won’t work well with liberals and progressive ideologues because most of us view ourselves as being liberal/progressive first and Democratic Party members second it at that. The people who will be attracted to liberal/progressive ideological institutitons aren’t going to be necessarily devoted the Democratic Party int the same way that conservative think tankers are loyal to the GOP.

          If liberals and progressives are going to play at the ideological game, there is going to have to be a certain amount of change in thought. Near absolute loyalty to the Democratic Party is one of them. Another one is a willingness to be disingenous when necessary.

          • mark f

            They also work because their disingenuosness appeals pretty easily to uninformed instincts. I don’t know how many people I know who said that insurance needed some reform but not the hugely expensive government takeover of the best healthcare system in the world.

            • Lee

              This to.

        • JoyfulA

          Or just kept Howard Dean and his community organizers at the DNC. In those years, we could turn on a rally at a moment’s notice here in the red zone.

      • DocAmazing

        “I’m just a bill, yes, I’m only a bill…”

        You know,there was a time when communicating fairly complex ideas simply and memorably was cone routinely. If only those technologies still existed…

        • I still hear Schoolhouse Rock in my head when I read the Preamble to the Constitution.

          • L.M.

            “There’s a lot of flag burners who have got too much freedom . . . “

            • S. cerevisiae

              “I wanna make it legal for police men to beat ’em…”

      • Heron

        You don’t have to go into the minutia, sticking to sloganized talking points is enough to inform people of what the ACA does.

        “Cheap insurance plans.”
        “No getting kicked off your plan due to illness.”
        “Health insurance whether you have a job or not.”
        “Your kids get your plan, no extra charge.”
        “No more HMO-Approved Doctors; choose the one you want.”
        “Everybody pays their share.”

        That’s all the argument that needs to be made. Complexity isn’t needed; indeed, it’d be counter-productive. Repeat this stuff ad infinitum, pay people to plaster posters and signs with these arguments all over major cities, send out emails, send out mass-mailings, do everything possible in modern marketing to get these simple arguments out there. The DNC had the resources to do a campaign like this and they chose not to.

        • Incontinentia Buttocks

          + 1,000

          What was needed was a powerful series of soundbites in favor of the ACA, ruthlessly and consistently repeated. This would have been entirely possible.

          But if one honestly feels that a law with powerful enemies is too complicated to explain in simplified terms, than it probably isn’t worth passing that law in the first place, even if one has the votes in Congress.

          You simply can’t take the politics out of politics, however much many Democrats might like to do so.

        • Sebastian Dangerfield

          This, this, this.

          I would add: “No co-pays for sexytime pills that also can treat acne!”

          I mean, how pathetic is it that it took red-beanie-brigade backlash to highlight this actually quite awesome part of the law? Hell, I didn’t know about it and I like to think I was paying attention.

          Instead we got talk about “bending the cost curve” — as if the intended audience consisted of Ezra Klein and Matt Yglesias.

        • DrDick

          Exactly. You do not have to explain the actual mechanics, only the benefits to the people.

    • Walt

      They really did mishandle this. They could have produced the identical policy outcome with a) a tax break for buying insurance that you get even if it’s your employer buying insurance, b) increasing some other tax, and c) using the tax revenues to offer a subsided reinsurance policy for insurance companies to cover the costs of moral hazard. Given the recession, they could have just skipped b for now.

      • Given the recession, they could have just skipped b for now.

        Is there any reason to believe that the Wanker Caucus would have supported this? It wasn’t done by accident.

      • Given the recession, they could have just skipped b for now.

        No, you have to pay for liberal policies by cutting funding for other liberal policies.

    • John

      If a mistake was made, it was not about messaging. It was about allowing years to go by before most of the bill’s provisions went into effect.

      • R Johnston

        Other things too, but definitely this. Not having the exchanges come online ASAP was political malpractice of the highest order. It’s much easier to demonize a minor downside to something–and a maxed out at $750 penalty to your tax refund for the failure to buy insurance is extremely minor on the scale of health care costs–when people can’t see the tangible benefits.

        • mds

          Not having the exchanges come online ASAP was political malpractice of the highest order.

          It made the projected ten-year cost of the plan lower, and hence was actually politically savvy … What’s that, you say? Now that the ten-year window has shifted, conservatives are flinging mendacious horseshit about how the cost of Obamacare has increased enormously? Never mind.

          • joe from Lowell

            You do know the bill passed Congress and became law, right?

            Ohnoes, Republicans saying things!

  • Constitution doesn’t say there have to be only nine justices on the Supreme Court…

    • Tcaalaw

      Unless you’re claiming the president has the power to unilaterally appoint justices whenever he feels like it, that point is completely irrelevant. The Democrats won’t hold 60+ votes in the Senate until the 2016 election at the absolute earliest. And you’d probably need Democrats to hold 65+ of the seats to be sure of breaking a filibuster given that at least some would be scared off by the inevitable court packing allegations.

      • rea

        Or, they could jsut kill the filibuster.

        • Tcaalaw

          And the evidence of any willingness on the part of Democratic Senators to do that is what exactly?

      • At any rate, court-packing is only relevant if you could repass the ACA, but putting that coalition back together would take a long time.

        • The threat of court-packing might be worth trying before going the full Jackson “Mr Marshall has made his ruling…” route.

          • Hogan

            It would help if the threat weren’t completely empty, which it would be given the current makeup of Congress.

  • Ben

    I’m just spitballing here, but could there be a way for there to be consequences among elite opinion that affect the court’s legitimacy? The oral arguments left some non-ideologues like Charles Fried, a Reagan SG who said Alito’s no radical and less conservative than Scalia, almost offended that the conservative justices would stoop to considering the Tea Party questions they asked legitimate. And if they strike down the ACA, those feelings would be even more concentrated.

    So could there be consequences to the Court’s legitimacy from large swaths of moderate legal elites thinking that the conservative majority is not exercising the Court’s duties with the intellectual honesty it requires? It feels like there might be, but the only thing I can think of is some non-negligible portion of the legal profession endorsing some sort of “Roberts has made his decision, let’s see him enforce it” move from Obama. And Obama ain’t doing that, and even if he did I don’t think it would change anything if some portion of the legal elites went along with it.

    So, I don’t know. Just throwing it out there.

    • Rarely Posts

      This. I wonder if striking down the ACA would hurt the Court’s legitimacy with:

      1) Lawyers and the bar;
      2) Elites in America;
      3) Elites abroad.

      I suspect striking it down would the hurt the Court a lot with the first, and it would particularly hurt the Court with (1) the non-conservative bar and (2) legal academics. Unfortunately, I don’t know how much this matters. Certainly, Bush v. Gore already did a lot to damage the Court in that way. Striking down ACA may do even more damage. Striking down ACA (like Bush v. Gore) would really be different in kind than simply a decision that one might disagree with (such as Citizens United).

      Personally, my faith in the law was really shaken by the oral arguments, and that’s a big deal to me personally–I find a lot of meaning in the idea that the law means something (i.e., that we, through social mores and values, create and maintain a legal system that achieves a certain amount of fairness, rationality, and impartiality, within the limits of human institutions). If ACA is struck down after those arguments, it would really shake my faith in the ability of the law to achieve that. Similarly, it would shake my faith in our Democratic system, for obvious reasons.

      I doubt that it would hurt the Court much with most elites–most are either no more sophisticated in their analysis than the average American (and Scott’s analysis of their reaction is probably right) or they already view the Court as merely a political Constitution.

      It would hurt the Court’s legitimacy with elites abroad, but they would barely care because it involves domestic policy within the United States.

      I do think that Anthony Kennedy may care about the above things, and hopefully this worry about legitimacy will give him pause.

      • Timb

        I was gonna ask if Scott thought we lawyers would ever respect those hacks. I’m in administrative hearing several times a week and judges who do not follow the rules, even the ones who just blatantly help my clients, are less respected than fair judges who apply the rules correctly.

        How an asshole like Scalia shows his head around lawyers is beyond me. One could characterize his defense of Bush v Gore as defensive, if one liked to use under-statements, but there should be no end to him violating HIS own precedents.

        What an asshole.

      • Lee

        Even if striking down the ACA, hurts the reputation of the Supreme Court with most lawyers in the country it will not amount to much. There will still be a Supreme Court of the United States and lawyers will still have to work with it and their decisions even if they don’t respect the institution.

    • Bart

      Those with the most to lose are without a voice: the uninsured, the under-insured, the poor with preexisting conditions, the 99% who pay too much for health care.

    • If Bush v. Gore — which even fewer conservatives were willing to defend — didn’t undermine the Court’s legitimacy, it’s hard to see that this would.

      • rea

        Bush v Gore did undermine the Court’s legitimacy–just not fatally.

        • Scott Lemieux


          • rea

            It’s no longer inconceivable that the Court would engage in transparent political hackery, and half the country believes that the 2000 election was stolen.

          • timb

            Was obvious in my law school classes

      • timb

        Yes, it did. i went to law school after that decision and there was no one who believed in the high and mighty Supreme Court. All decisions were political, just some more than others.

        Look, I was old for my class (35) and I remember what most people thought of the Court.

        If you don’t think elite opinion has changed toward the Court, Scott, then you will be surprised with andy jackson’s quote makes a re-appearance under the next C+ Augustus

      • R Johnston

        Bush v Gore was plausible as a one off. IT was a trashing of the law in a specific, very important case, but not a systematic trashing of the law that amounted to a revolutionary moment.

        Overturning the ACA would be a revolutionary act as well as a trashing of the law. It is inconceivable that overturning the ACA won’t be used as precedent to strangle the government in a bathtub.

        • Holden Pattern

          Bush v Gore was plausible as a one off. IT was a trashing of the law in a specific, very important case, but not a systematic trashing of the law that amounted to a revolutionary moment.

          I gotta disagree here. The final authority on law in the country decided that they got to pick the executive in a decision that they stated had NO precedential value — just a deus ex machina in favor of the wingtards. That’s revolutionary and irrevocable.

          • R Johnston

            Except for two things: 1) it was plausible, if wildly unprincipled, to actually give Bush v. Gore no precedential value, while overturning the ACA, if it happens, will have widespread precedential value however the Court decides it, and 2) contrary to popular belief, Bush v. Gore did not actually change the results of the 2000 election. If the recount had proceeded then you can bet your bottom dollar that the Florida legislature would have rushed to pass a law that declared the decision an abuse of power and assigned electoral delegates to Bush. With competing electoral delegations each claiming legitimacy, it would have fallen to a Congress controlled by Republicans to count the votes and to House state delegations, a majority controlled by Republicans, to vote on a President if neither Florida delegation’s votes were counted and Gore and Bush were both deprived of a majority of electoral votes. The 12th Amendment makes pretty sure that one way or another, none of them pretty or particularly legitimate, Bush was winning in 2000.

            Bush v. Gore
            was awful, illegitimate, and an abuse of power, but it didn’t change a thing and wasn’t in-and-of itself revolutionary. It highlighted the ridiculousness and anti-democratic nature of the electoral college, and it highlighted the political nature of the Supreme Court, but both of those things had long been there. Lacking any chagned result and any precedential value Bush v. Gore was an educational moment, not a revolutionary one, albeit a legitimately frightening educational moment. It shined a light on the cliff and showed it in all its glory, but it didn’t push us over.

            • Holden Pattern

              So you’re basing your assessment of the effect of Bush v. Gore on a counterfactual subsequent legislative response? Well, maybe.

              I think we’re using “revolutionary” differently here. The extent to which Bush v. Gore was revolutionary in my view was that SCOTUS picked the next president AND basically picked the ideology of its own membership for the next 4 to 8 years, and did so in a nakedly political way, without any legal justification at all, because the precedent they would have set would have been GOOD FOR LIBERALS AND/OR DEMOCRATS.

              That is in my view, revolutionary, and (among other things) is responsible for the train wreck we’re seeing today.

        • L.M.

          I agree with this. I think Bush v. Gore did hurt the Court’s legitimacy in legal circles, but it was still possible for some people to believe that decision was basically a one-off. In the following decade, comparably bad decisions (Parents Involved, etc.) simply didn’t get enough attention to hurt the Court’s reputation, except amongst legal professionals who already had a dim view of this Court anyway. And there were enough good decisions (Boumediene and Padilla v. Kentucky are the ones I would I think of; I’m sure other people would have other interests) that even those people could have been content to believe that this Court was still capable of doing good things in certain areas, and that we just needed to keep this Court from reaching other particular kinds of issues.

          The constellation of three high-profile decisions from three different areas of law–Bush v. Gore, Citizens United, and this case–would make it very hard to pretend that this Court had any scruples left at all.

          • Scott Lemieux

            I don’t deny that liberal academics will like the Court less if they strike down the ACA. What I still don’t see is how this will actually undermine the legitimacy of the Court in a more meaningful sense.

      • L2P

        After Bush v. Gore, no practicing lawyer believes that on a conservative issue they can rely on precedent to rein in the Court. The actual bar now couches their arguments more in terms of policy, less in terms of precedent. There is a REAL CHANGE in how people view the legitimacy of the court.

        You need to distinguish practicing lawyers from law professors. Law professors seem to still believe the court is “legitimate” in the sense that it follows precedent. When we send our cases up for review, though, we would fire any firm that wasn’t arguing mostly on policy if the case had any political ramifications.

        • Scott Lemieux

          It’s not bad legal practice for the Supreme Court to not follow its own precedents, even if we assume that the precedents completely foreclose the outcome. Do you think Lawrence v. Texas destroyed the legitimacy of the Court?

  • wengler

    Ever since they started picking Presidents and declared money is speech, I stopped caring much about what they say. Their power only goes as far as the Executive’s willingness to abide by their rulings.

    • DrDick

      And Congresses unwillingness to remove them from office for grievous misconduct (which Bus v. Gore most certainly was).

  • skidmarx

    If they fail to strike it down, will they lose legitimacy among Republicans, and might this suggest that “the fact that the ideological fault lines of the court now map precisely onto partisan divides means much”?

    Should be “than” not “that” in “you’d better have better arguments that were on display”.

    • Scott Lemieux

      No, because they would lose exactly the same amount of legitimacy among Republicans if two Republican appointees were in the majority. Cf. Kelo.

  • Jim Lynch

    “Declaring those un-Constitutional probably would destroy the Court’s legitimacy, and I’m sure they know it”.

    Perhaps. But I don’t think the GOP purists of The Court give a damn about that. Do you?

    • DrDick

      Not for a minute, nor do they care about legal consistency. As several commenters have noted, overturning ACA would require Scalia to rule in contradiction to several prior decisions of his.

    • L.M.

      In fact, I think destroying the Court’s legitimacy is probably a feature, not a bug, as far as these people are concerned. The current majority wants to make sure that the Supreme Court is discredited for future generations, in case the Court is ever again controlled by anyone other than right-wing ideologues.

  • JMG

    You’re probably right, Mr. Lemieux, but I am not so sure as you. Polling shows a great deal of dissatisfaction with Citizens United and the belief the Court is a political institution, which of course is a pejorative to the American people (although really, what the hell else could it be). I wouldn’t say the decision would CAUSE a lack of legitimacy, but it would feed an existing sentiment.

  • John Quiggin

    I think you’re underestimating the role of cognitive dissonance/doublethink. Assume the Court overturns ACA on a 5-4 vote. I think most Americans will then give a positive answer to the following to questions

    “Do you recognise the legitimacy of Supreme Court decisions”
    “On politically contentious issues, do you expect the SC to divide on party lines?”

    The implied result is that the Supreme Court is recognised as a legitimate part of the US political system, like the Electoral College. But that kind of legitimacy is a lot different from the legitimacy courts typically hope to command.

    In particular, an obvious implication is that, if the Administration can get away with ignoring Supreme Court decisions, there is nothing wrong with doing so – it’s just one more political manoeuvre.

    An equally clear implication is that future Supreme Court appointments from either side should be chosen on the basis of life expectancy and party loyalty rather than any legal merits – this is already happening to some extent, but it’s likely to become explicit.

  • c u n d gulag

    Scalia, Thomas, and Alito, were specifically put on the court for just an occasion like this – a law passed by Democrats that benefits people.

    R Presidents get to nominate and put on the SC at least one rubber-stamping Conservative idealoue. D Presidents, on the other hand, only get to nominate Center/Center-right Justices, who are then treated as traitorous Communist “Fifth Columnists” by R’s by the Senate Judicial Committee.

    If “De-evolution” Reagan, “Papa Doc” Bush, “Baby Doc” Bush (Hell – Dole/McCain) signed this very same bill, and it was written and passed by R’s, the only question is, would this VERY SAME SC pass it unanimously, or 8-1/7-2 – with one or two of the more Liberal justices voted “no” because it’s inefficient, and “Medicare For All” is what the Congress should be steering for?

    Scalia’s behavior during questioning was beyond disgusting, and childish, grandstanding – it was openly mocking, churlish, boorish, and pointless, except to keep the spotlight on himself. I think even Roberts was a bit shocked, and had to chastise him to tone it down, and stay on point.

    Thomas, as usual sat there like some robed Sphinx.
    And Alito chimed in with more talk-radio, Scalia-like questioning.

    After this naked display of partisan judicial politics, I’ll pass-out if this law is passed.
    The only hopes are slim: Kennedy and Roberts – yeah, I know, but hear me out:
    Both men may have an eye on their legacies. Kennedy was on the wrong side of two of the most egregiously horrible decision in the history of the SC: Bush v. Gore, and CU. Roberts was the CJ on CU.
    Kennedy, if there’s any sense of decency left in him after constant exposure to “The Terrible Three,” may want to make amends for the two disasters he was one of the deciding votes on. And Roberts, who everyone already knows never met legislation that put money in corporations pockets that he wouldn’t openly salivate to pass, could use that as cover to make-up for “Citizens,” which is now no longer considered an albatross for the SC by Liberals, but also a growing number of Conservatives, who are shocked at the excess that decision allows. Besides all of his hot air, they’ve now seen a single billionaire, ONE MAN’s money, keep that rogue, Gingrich, afloat like a Thankless-giving Day Parade balloon.

    And yeah, I know this is a stretch – to the point where “Rubberman” might snap back or break, but I need SOME hope.

    Another factor might be, what happens to the millions of people, like those with preexisting conditions, and young adults covered by their parents policies? THAT might very well rebound back on the SC and Republicans – especially in this election. Except for that consequence, no Conservative would care for a nanosecond.

    My bet is that they kill the mandate, but leave enough of ACA that R’s can use as a cudgel to continue to use in the coming election. Or, force the D’s to walk-away from their (really the R’s – since it was basically written by Heritage as an answer to HillaryCare) bill.

    Without Kennedy and Roberts, ACA is dead.

    And Scalia, Thomas, and Alito will have performed exactly what they were put on the SC to do.

    Maybe they’ll unfurl a “Mission Accomplished” banner over the bench, and toast one another with vintage champagne for a job well-done.

    • c u n d gulag

      Oh, and lest I forget – maybe someone should ask all of the “Constitutional Originalists,” and “Federal Society” folks out there how they feel about John Adams, a member of the Federalist Party – and the ONLY one to be President, signing a law MANDATING insurance for ALL seamen?


      Adams and that Congress were a lot closer to the “origins “of the Constitution, so, if they decided they could MANDATE insurance for ALL seamen in 1798, why we can’t we do that for everyone in 2012?

      Well, Antonin, you (supposedly) great legal scholar – what say you?

      • rea

        He woud say that law was an application of a different enumerated power–the power to make admiralty law rather than the Interstate Commerce Clause.

    • John

      If “De-evolution” Reagan, “Papa Doc” Bush, “Baby Doc” Bush (Hell – Dole/McCain) signed this very same bill, and it was written and passed by R’s, the only question is, would this VERY SAME SC pass it unanimously, or 8-1/7-2 – with one or two of the more Liberal justices voted “no” because it’s inefficient, and “Medicare For All” is what the Congress should be steering for?

      No. The liberal justices don’t overturn legislation because it’s inefficient or because they prefer another way of getting to the same goals. That’s not how they work. If this plan had passed under Dubya, the only real question would be if it’s 9-0 or if Thomas dissents. Justices like Breyer and Ginsburg don’t rule laws unconstitutional because they don’t like them.

    • Njorl

      It’s an interesting idea, that Scalia’s behaviour could nudge Roberts into wanting to disassociate himself from him. I think this would be expressed by voting to overturn, then not socializing with him, though.

      • rea

        It’s an interesting idea, that Scalia’s behaviour could nudge Roberts into wanting to disassociate himself from him

        Roberts actually asked Scalia to stop with the frivilous questions during the argument.

        • Scott Lemieux

          Rehnquist used to get intensely annoyed with Scalia at oral argument too. It doesn’t stop them from voting together.

  • david mizner

    Backlash? The law hasn’t even kicked in yet. And it’s unpopular. And there’s little question that unpopularity of the law makes the SC more willing to do away with it.

    • c u n d gulag

      “You don’t know what you’ve got ’til it’s gone…”

      If the SC decided against the law, and millions of people who had preexisting conditions, and young adults under 26 covered by their parent’s plans, are thrown back to “market forces,” not only will THEY know, but so will their friends and relatives.

      As I said in my comment above, by guess is that the SC will cherry-pick parts of ACA to decide against (like the mandate), to put Democrats in the worst possible position, and save the Republicans the embarrassment (with potentially devastating consequences) of having to openly repeal the law if they’re in position to do so after January of 2013.

      • Josh G.

        As I said in my comment above, by guess is that the SC will cherry-pick parts of ACA to decide against (like the mandate), to put Democrats in the worst possible position

        Striking down only the mandate and leaving the rest of the law intact would actually be the best possible outcome from a progressive standpoint, since it would put the insurance industry in a very unfavorable situation and give Democrats a lot of leverage in deciding what the fix will be. Sadly, for that reason, the Court is unlikely to do this.

        • joe from Lowell

          What if the insurance companies respond to the struck-down mandate by jacking premiums through the roof? Don’t you think that would leave the law’s supporters in a tough spot with the public?

          • Njorl

            It would raise the stakes for all sides. There would be intense pressure to get something done.

            It’s the least likely outcome, though, in my opinion. Letting it stand, striking down the whole thing, or striking down the mandate and the parts of the plan the mandate is designed to support are all much more likely.

      • david mizner

        “Don’t know what you’ve got till it’s gone.”

        Point is, most people don’t have it yet.

    • Sherm

      Only the mandate is unpopular. All other crucial aspects are quite popular. And if people understood that mandate was necessary to pay for the portions they like, opinions on the mandate would surely change.

      • Incontinentia Buttocks

        Other aspects of the law are popular….if you ask people about them as separate propositions. People’s overall understanding of the law, however, is that it won’t help them, will cost them more money, may further limit their medical choices, will cut their Medicare, and will increase the budget deficit and the size of government.

        In short, the problem is not simply that the mandate is unpopular (though it is). The problem is that people fundamentally don’t understand what this law does. And they don’t like what they think it does at all.

        • david mizner

          Right, the overall bill is unpopular. The latest NY Times poll had 36 percent approval, 47 percent disapproval.

          The reasons for this are various — public ignorance, the fact that much of it hasn’t kicked in yet, the hatred of the mandate, general anxiety over the cost of health care (which the bill does all too little to address — but there’s long been denial among liberals and Dems about the bill’s unpopularity.

          The other night, Rachel Maddow did a segment showing that while people say they dislike the bill, they liked the individual components. Problem is, she didn’t even mention the mandate. Maybe if we keep saying people like the bill, they’ll start liking it.

          • mark f

            Honestly, as someone who’s experienced the Massachusetts law, I think dissatisfaction with the mandate will vanish once people realize that all it means for most people is handing another piece of paper to the guy at H&R Block.

            • joe from Lowell

              Agreed. Mizner said, up above, you don’t know what you’ve got until it’s gone. Here in Massachusetts, people didn’t know what they were getting until they had it for a couple of years.

              I’ve yet to have anyone plausibly explain to me why the same thing wouldn’t happen on a national level by 2014 or 2015.

              • david mizner

                I think it could. I think the bill could eventually become popular if the Court or the GOP (is that’s not redundant) doesn’t kill it first, and if people’s lingering anxiety about the cost of health care doesn’t overshadow the bill positives.

            • Incontinentia Buttocks

              The problem is that if the law gets tossed by the SCOTUS, people will never discover what was actually in the ACA. A near majority will instead continue to believe that it would have hurt them and that it’s a good thing they don’t have to put up with it.

          • Sherm

            Largely public ignorance. The same poll showed 85% support for provision requiring carriers to cover pre-existing conditions and 68% support for provision allowing children to stay on parents’ plan until age 26.

            The public disapproves of the ACA as misrepresented and twisted by the republicans and the right-wing noise machine. When asked about specific attributes of the plan, the public approves, with the sole exception being the mandate, and then only because they are never asked the obvious follow-up: do you approve of the mandate if required to pay for the other aspects of the plan?

            Also, the poll doesn’t account for people like me who disapprove because the plan doesn’t do enough, although its an improvement over the status quo. How many people disapprove because they prefer a public option or medicare for all?

            • david mizner

              I assume that a lot of disenchantment over health care adheres to the health care bill in the way that disenchantment about the economy adheres to the stimulus. That’s why it’s bad for liberalism to implement mediocre measures. Or put another way: liberalism will be blamed for neoliberalism’s failure.

              • That’s why it’s bad for liberalism to implement mediocre measures.

                The history of Social Security is a powerful counter-argument to this.

                • Scott Lemieux

                  Every major social welfare provision ever enacted by the United States Congress is a powerful counter-example to this. The idea that the New Deal emerged as a fully-hatched progressive program is very odd. Even the most enduring parts of the New Deal started as what would now be called “neoliberal compromises,” granting that “compromises with conservative white supremacists” isn’t exactly the same thing.

                • R Johnston

                  What was true 40 years ago and more is not true today. It used to be much more possible to advance causes like Social Security incrementally. That’s not really possible any longer given how dedicated the Republican party is to smearing and tearing down incremental change before it takes root. There’s still some traction for incremental change in civil rights–gay rights in particular has seen a lot lately, although incremental change on women’s rights and racial equality isn’t looking so good these days–but there’s been no traction for incremental improvements to the welfare state since Nixon took office.

                • joe from Lowell


                  Medicare drug benefit?

                  Transitional housing and other efforts to combat homelessness?

                  There have been incremental, and not so incremental, improvements to the welfare state on many fronts over the past 20 years.

                • david mizner

                  There you go again, comparing a government program to a product provided by a corporation. To call Social Security — even a limited version of it — neo-liberal is to render the term meaningless.

                  Social Security initially and immediately covered 60 percent of the workforce. Because of its wide reach, and because it didn’t force people to purchase a mediocore product from a corporation, it had a pretty good chance of being popular. Lo and behold.

                  What’s more, it was something to build on. I supported a public option because it was crack in the system – was a possible avenue to single payer. Now how do we get there from here?

                  By the way, by the latest estimates, this “universal” health care plan will cover only half the uninsured.

                • Hogan

                  there’s been no traction for incremental improvements to the welfare state since Nixon took office.

                  Expansion of Pell grants, Earned Income Tax Credit, CHIP, Medicare Part D . . . that’s not really true.

                • david mizner

                  I have no problem with incrementalism, which is essential. I have a problem with unpopular, corporate friendly (Heritage Foundation backed) legislation.

                  Of course, this isn’t all the fault of the Democrats. The GOP neuters Democratic legislation enough so that it can then claim it didn’t work.

                • joe from Lowell

                  Then the opposition of the Heritage Foundation, which did not back the Affordable Care Act, but rather opposed it, should have lead you to support it.

                  If that – I’m the opposite of what they say – is how you go about deciding these things.

                  And no, the fact that they pretended to support it 20 years ago does not cause their extensive, well-documented opposition to this bill disappear. Talk is cheap.

                • joe from Lowell
              • R Johnston

                I’ve long been waiting for the day when liberals and moderates realize that only conservatives can win with bad policy. Liberals and moderates both need actual results to justify their policy because they’re not the one’s claiming “policy can’t work well so lets just not even bother and let’s not worry when it doesn’t work well and instead let’s spend our time worrying about more important things like giving the Koch brothers a tax cut, commandeering women’s uteri for the state, and pissing ourselves in fear about the gay.”

          • Ed

            Reminding me of the people who kept saying have no fear, the bill would be wildly popular once it was passed. (There’s a possibility that might have been true had it all kicked in immediately.)

    • ploeg

      Not quite true: for example, dependents are now allowed to remain on their parents’ insurance plan until their 26th birthday. And this is something that is appreciated by middle-aged people who typically vote.

      • Incontinentia Buttocks

        But do most people understand that the law does this? Polling suggests that they do not.

        • John

          I would assume the people affected understand it. And they’ll understand it even better if the Court overturns the whole law and takes it away.

          • Holden Pattern

            No, I think most people will just chalk it up to “gummint is like the weather, except it’s always just different kinds of rain”.

            And to the extent they blame SCOTUS, it will be in the general category of “gummint sucks, can’t do anything right”. Because that’s the general vibe that movement conservatives have worked for decades to create, without any countervailing force.

    • rea

      It’s the Death Panel part that’s unpopular. Which, of course, does not exist.

      • mark f

        Don’t forget the Cornhusker Kickback!

  • rea

    The Supreme Court’s legitimacy comes from it being seen as applying objective standards in a non-partisan manner. Its legitimacy in the long run comes from professional and academic acceptance of its decisions, not simply transient public reaction. If the consensus of the legal profession is that the majority of the Court consists of partisan hacks, that will damage the Court’s legitimacy, regardless of what the general public now thinks about the outcome of particular cases.

    There are two ways the ACA can be overturned. One involves a very narrow, case-specific ruling that won’t be applicable to almost any other situation (a slightly less overt Bush v Gore). The problem with doing it that way is that the decision will be regarded as ridiculous by anyone familiar with the Court’s Commerce Clause jurisprudence. That damages the Court’s legitimacy.

    The other is to create a precedent that strikes down much of the New Deal and Great Society. That’s at least less obviously political hackery, but fundamentally remaking the country by a 5-4 decision is not going to be will received, particulary as the consequences of the decision become apparent.

    • Scott Lemieux

      The problem with doing it that way is that the decision will be regarded as ridiculous by anyone familiar with the Court’s Commerce Clause jurisprudence. That damages the Court’s legitimacy.

      What’s the evidence for this? There’s no way a decision striking down the ACA could be as legally indefensible as Bush v. Gore, which was almost universally derided by the academic community, and yet the Court’s legitimacy wasn’t damaged to any meaningful extent. For that matter, liberal legal academics were bizarrely critical of Brown v. Board, and yet it’s now sacrosanct. Legal opinions are evaluated by the result and how it holds up.

      • You seem to be equating “legitimacy” with “broad popularity.” I’m really not sure that’s a good metric.

        • Scott Lemieux

          Well, what metric are you using? Supreme COurt opinions are certainly “legitimate” in the Weberian sense; the rulings are followed. They’re legitimate in that their authority is respected by the public and the institution is respected.

          • timb

            for now

          • I think Supreme Court authority may well be on the verge of “doing a Congress”: becoming so associated with the negative aspects of its work that normal function becomes compromised.

            I think there’s about to be a huge split between “respecting the office” and respect for the SC as constituted.

            We’re already seeing both other branches of government heavily gaming the court: Rejecting the legitimacy of specific decisions, trying to take the court’s functions into their own hands (eg signing statements), making public statements to influence ongoing debates.

            So I don’t think it’s fair to say, as a blanket statement, that the institution is respected, or that their authority is respected by the public.

            They still have power within the system, but it’s a lot less secure than it used to be.

          • Njorl

            If people take the nearly unimaginable step of electing 67 Senators willing to impeach a justice for politicizing his position, that would be a declaration that the court had lost legitimacy. If lower court judges stop treating SC findings as precedents, and manage to keep their jobs, that would mean the court lost legitimacy.

            If every Attorny General and District Attorny and everyone who owns a black robe and a gavel writes a letter to the editor saying that the Supreme court has lost legitimacy, that doesn’t mean so much.

      • timb

        Yeah, i have to agree with the comment above this. What is your definition of legitimacy if lawyers openly laugh at the Court?

        Is ignoring their rulings the only definition?

        • Hogan

          Call me when they stop getting invited to speak at law schools and conferences and commencements. Or when they start having to pay their parking tickets, even.

    • R Johnston

      Well said. The two possible principles that could be drawn from this Court overturning the ACA are a return to Lochner and more-or-less the abandonment of Commerce Clause juriprudence in order to decide matters on a case-by-case basis with no real precedential value. Either way signals serious trouble ahead, and either way gives license to lower court wingnut judges to make war against the government.

  • Josh G.

    Another element of the question, however, is whether a decision striking down the ACA would significantly effect the legitimacy of the Court among the general public.

    I think this is looking at things the wrong way. How many members of the “general public” can even name a single Supreme Court Justice?

    A decision against the ACA, on the heels of Bush v. Gore and Citizens United, would amount to a declaration of war against the Democratic Party. Almost everyone active in the Party, from the local level on up, is going to see this as a serious threat to future legislation and react accordingly. If five conservative Justices are willing to strike down our President’s signature legislative accomplishment, one that took about a year of hard work and heavy lifting to achieve, and to do so with legal arguments that would have been considered frivolous just months before – what won’t they do? Opposition to the Court as presently constituted becomes a matter of political self-defense.

    • Holden Pattern

      If the Dems haven’t figured out by now that the Republicans are waging a war without rules for control of the country, they’re never going to figure it out. Even rats fucking learn.

      Me, I think that a lot of them like being the Washington Generals.

      • Josh G.

        I think Obama has finally figured it out, in the last six months or so. It took him a long time, but I think he’s finally starting to realize that he’s not going to be the bipartisan healer he wanted to be, and that ultimately he is the leader not only of the country but also of the Democratic Party.

        • joe from Lowell

          I think he figured it out during the legislative process over the ACA, and has been merely posturing as a would-be-bipartisan healer ever since, because it’s a popular brand.

          • John

            The evidence of what was going on in his negotiations with Boehner last year ought to complicate your picture.

            • joe from Lowell

              You mean when Obama insisted on a trillion dollar tax increase, and then when it looked like the Republicans might actually swallow that poison pill, insisted on another $400 billion?

              The punking of Boehner and Cantor in the debt ceiling “negotiations” is the strongest evidence there is that he’s been doing this for show.

  • Even if the court’s legitimacy is cast in doubt, what does that mean? If it’s a 5-4 decision on getting rid of the ACA, and their opinion consists of a video of Tony Scalia peeing on a photo of the President, and everyone says “Gee whiz, that’s horrible, what a bunch of clowns,” why does that even matter? Congress would never impeach them, lawyers would still bring cases and argue before them, and anything they said would still basically be the law.

    • Scott Lemieux

      This. Obviously a lot of Dems will (correctly!) be outraged by a decision striking down the ACA. But what can they do exactly?

      • gmack

        The Supreme Court, perhaps more than the other branches of the Federal Government, relies on authority (i.e., on a kind of unquestioning assumption that they have a deeper insight into the nature of the law and the Constitution). If that authority wholly erodes, as it surely would in the hypothetical here, it is frankly hard to predict what the consequence would be. Things that are unthinkable now might become quite thinkable in the near future. I mean, I understand that the Scott’s example is hyperbole, but to assume that Scalia could literally urinate on a picture of Obama saying “suck it Libs!” and produce no consequences is to assume that our institutions and sources of authority are far less fragile than they are.

        • Scott Lemieux

          Right. To be clear, my argument is that “no Supreme Court opinion with substantial support among the public and especially powerful elites will undermine its legitimacy.” People seem to be ignoring the fact that a decision striking down the ACA would be well within these bounds.

      • Structurally, not very much (barring sudden retirements or filibuster-proof margins).

        But politically, you’d be surprised what “OMG, we’re an embattled minority” can do to energize the base. (cf “War on Christmas”, etc.)

      • rea

        At some point, the president and congress recognize that they, too, have the power to determine what is and is not constitutional. The Andrew Jackson solution. Or they recognize that they have the power to modify the Court’s size and jurisdiction–the FDR solution.

        • Incontinentia Buttocks

          They could start much more simply: fill all the vacancies on the federal courts by blowing up the filibuster.

          But, of course, they won’t even do this.

  • BradP

    Am I correct in thinking that the SC striking down the mandate would create a precedent that effects a very narrow set of possible congressional powers?

    It seems the hair-splitting nature of the argument put forward against the mandate would lead to a decision that would not be particularly relevatory or important.

    At this point, I have no great attachment to seeing this decision going either way, and it seems like all of this conflict is over a decision that doesn’t accomplish much for either side.

    • rea

      It depends on how they decide it. Bear in mind that some of the same justices’ comments on Day 3 of argument might suggest that Medicaid is unconstitutional.

      • timb

        not to mention over-ruling the second oldest/important precedent in Federal law (McCullough)

  • Holden Pattern


    significantly effect the legitimacy

    Pretty sure you mean ‘Affect’ there.


  • rea

    “Dawn take you and be stone to you.”

  • I think it will kill the Supreme Court’s legitimacy for Democrats… which has no practical impact on the Court’s functioning, but may finally end the liberal love affair with achieving progressive aims through judicial review. I think we’ve always viewed nominations as life and death with Roe v. Wade, but maybe now we’ll be a little more cutthroat about it since it appears they are just Senators by another name. I don’t know how effective railing against “activist judges” has been for energizing the conservative base, but if we have any shot at all at retaking the House I would think it would have to be on the heels of a 5-4 overturning of the ACA.

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  • Scott Lemieux

    It’s sure great that multiple people will leap to feed the trolls whenever a useful discussion threatens to break out.

    • Guilty, my apologies.

      • mark f

        Over 71% of my comments in this thread have been troll feeding. Sorry.

        • Apologies for giving in temptation here as well.

    • Njorl

      I opened my bag of troll kibble, then thought better of it. I don’t want my kibble to go bad, though, so start a Tim Tebow thread.

    • (the other) Davis

      Guilty as charged. It’s tough to resist a soft target.

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