Home / General / Sometimes A Devastating Defeat Is Just a Devastating Defeat

Sometimes A Devastating Defeat Is Just a Devastating Defeat


Given the amount of pushback, I decided to make my argument about legitimacy and the ACA at much greater length. A lot of people seem to think that this particular politically controversial decision with substantial elite support will somehow be different than the many other politically controversial decision with substantial elite support the Supreme Court has made. I don’t see it:

It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision. The problem here is that evidence that the vote lineup influences public or elite support for judicial opinions is scant. Consider the most divisive Supreme Court decisions in recent history. Miranda v. Arizona was 5-4, but that’s the exception. Brown v. Board and Cooper v. Aaron—both of which the directly affected states and their representatives not only bitterly opposed but refused to implement—were of course unanimous. Engel v. Vitale—the 1962 school prayer case that generated more hate mail than any case in the Warren Court era and also had serious implantation problems—had a mild solo dissent. Roe v. Wade was 7-2. It’s substantive results—not the number of dissents—that determines the reaction to Supreme Court decisions.

One potential counter to this is that a decision striking down the ACA would be different, it would be a 5-4 decision that would break down along strict partisan lines. By showing the Court to be nakedly political, it might undermine the Court in a way that previous rulings have not. My response to that would be simple: Kelo v. New London. The fact that the opinion was written by one Republican nominee and joined by two others didn’t stop it from being fiercely criticized by Republicans and sparking a legislative reaction in many states. And this makes sense when you think about it. In essence, the argument that the partisan breakdown changes things assumes an audience sophisticated enough to be aware of recurrent ideological vote patterns on the Supreme Court but unsophisticated enough to think that the Court is nonetheless apolitical if these ideological divisions map onto 1950s party coalitions rather than 2010s party coalitions. I’m not sure how big this audience is, but I’m confident that it could comfortably fit in a single-occupancy freshman dorm room. No conservative Republicans think of John Paul Stevens or David Souter as being on their team no matter who appointed them.

This is not to say that the Court can do anything it wants and remain its standing with elites and the public. A decision completely lacking in elite or popular support might have this effect. Unfortunately, this scenario wouldn’t describe a decision striking down the ACA. Such a decision would have the strong support of the political party that controls the House of Representatives and 48 seats in the Senate, and if current polling holds up would have the support of a majority of the public as well.

I also think some people are way too optimistic about the policy that would emerge should the Court just strike down the mandate, but…well, read the whole etc.

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  • c u n d gulag

    When the SC ruled against Lilly Ledbetter in her case against Goodyear, Congress wrote a new law addressing the issue of equal pay for women, and President Obama signed it into law.

    If that decision happened now with the present House, Ledbetter, and women, would be SOL.

    If the SC decides all, or enough, of the ACA law is not Constitutional, I wonder what Republicans will come up with to replace it?
    They’ve been screaming “Repeal and replace” for over two years now.

    Besides, I mean, tort reform, and companies crossing state lines.
    Or nothing.

    Yeah, I know – it’s either those two, or nothing.

    Anyone have any ideas?

    • Davis X. Machina

      Freedom™. Lots of it.

      That’s what will replace a stricken ACA.

      • Holden Pattern

        And lots of insurance company money flowing into the pockets of lobbyists and campaign coffers for both parties. To keep the Freedumb alive, donchaknow.

    • Richard

      Nothing. Absolutely nothing.

    • joe from Lowell

      There was an election in between the Ledbetter decision and the passage of the Ledbetter law – the elections of 2008.

    • The ruling in the Lilly Ledbetter case did not involve a constitutionality issue. It was a ruling on the statute of limitations.

  • Linnaeus

    I also think some people are way too optimistic about the policy that would emerge should the Court just strike down the mandate, but…well, read the whole etc.

    I’m not optimistic, but there’s no other real choice than to work for a better policy (which is necessary even if the ACA is upheld, in part or in full).

    • Incontinentia Buttocks

      [T]there’s no other real choice than to work for a better policy (which is necessary even if the ACA is upheld, in part or in full).

      No other choice for whom?

      The most likely path that the Democrats will follow in the near future is the path they’re taking on, e.g., global warming and card check: occasionally making the right noises about it while shaking their heads and saying that it’s politically impossible to deal with it.

      The other real choice is to ignore the problem and to focus on other things…especially on things about which there is significant bipartisan consensus: trade deals; invading smaller countries; building the national surveillance state, attacking school teachers, and so forth.

      In fact, ignoring problems is usually the preferred choice for our political and social elites, especially when, like the issue of healthcare access, the problem in question doesn’t much affect them.

      • Linnaeus

        I meant “no other real choice’ in the sense of “no other real choice for progressives”. No doubt that there will be impediments to that.

        • Scott Lemieux

          I’m definitely not saying we shouldn’t try…

          • Rarely Posts

            No, but the upshot is that maybe we shouldn’t. If the United States’ political institutions are increasingly unable to react to the problems of the day, then trying is mostly just an exercise in futility that detracts from personal happiness.

            If the Supreme Court strikes down ACA based on these types of arguments (which are, in numerous ways, a total reversal of its normal approach to constitutional interpretation),* then they would likely strike down the next thing too. There’s no point in trying as long as the Court stays stacked with 5 conservatives, which it likely will for the foreseeable future (unless Democrats manage to buck the historic trends in presidential elections). Moreover, the chances that Democrats manage to capture 60 votes in the Senate anytime soon are minimal (the Senate is rigged against progressive majorities). Finally, based on your own positions (which are likely correct), major politicians have little effect on public opinion, and indeed, it’s very difficult to shift public opinion at all.

            Seriously, a little fatalism may be the mentally healthy way to go here. We may be entering or in the midst of the early 1900s, and the next opportunity for real change may not come for another 30 years when demographic change combined with the death of our current locked-in incumbent elites may actually give us a shot.

            I’m very happy that LGBT rights seem to be bucking this trend (so activism there makes sense). However, in terms of economic growth (competition policy, pro-growth regulation), economic equality, labor protections, environmental protection, and the welfare net, we may be in a period of stagnation that no amount of effort will shake us out of (until the elites die off or a true crisis along WWII levels hits).

            * First, the proposed activity/inactivity distinction has no basis in the constitutional text, precedent, history, or reason. Second, the questions revealed a radical reversal of normal constitutional interpretation: Kennedy seemed to believe that Congress bore a heavy burden to establish constitutionality, not the challenger bearing a heavy burden to establish the opposite. Similarly, everyone grilled the S.G. to provide a limiting principle to address absurd laws that have not passed, but in fact, the challenger should have born a heavy burden to explain why this challenge would not justify invalidating numerous “necessary and proper” provisions of broader regulatory schemes that currently exist (the mandate is certainly not the only provision or application of a broader law that can only be justified in terms of the broader scheme). Which means that one can expect the next 20 years to consist of selective application of the ACA precedent to strike down provisions and statutes that Republicans don’t like.

    • Holden Pattern

      I think the realistic other choice, if one has the ability, is to focus on making enough money to allow your family be somewhat better insulated from the long grey suck, and vote Dem because they’ll probably sort of sometimes slow the decline, which will allow you to sock away more over time.

      • mpowell

        Sad but true. I have a family member who needs the ACA. Hopefully CA will follow MA’s example if the court strikes the ACA.

        • Holden Pattern

          If it requires revenue, it won’t happen. See Prop 13 superminority requirements.

  • DrDick

    I have to agree here. I do not think the conservatives care about their reputations, just results and there does not seem to be any institutional will to act by either Congress or the President. Popular opinion does not really enter into this, for reasons you and others have elucidated.

  • Blue Neponset

    If the Democrats had the kind of propaganda machine that the Repubs do then overturning ACA could be a political golden goose. However, a party that can’t manage to convince the nation there are no death panels in Obamacare won’t be able to do sh!t about losing this case.

    Instead of giving Obama $1 billion to win the election it might have been better spent investing in think tanks and a half way decent propaganda apparatus.

    • Holden Pattern

      That’s just stupid bully pulpit thinking. If you could change what people believe by just talking at them, don’t you think the Dems would have done that? Beliefs about the world are innate — they come from God or nature, or something, and the way people’s beliefs change is a mysterious process that nobody really understands. It’s probably midi-chlorians.

      It’s clear that none of billions of dollars the movement conservatives have spent on changing beliefs over the last 40 years have done any good for them, so it’s simply common sense that we should instead put money into the pockets of the Dem consultant class in order to reach this, the best of all possible worlds.

      • Anderson

        If you could change what people believe by just talking at them

        Talking isn’t sufficient, Holden, but it is necessary if one is to persuade.

        Obama and the Dems have made no serious effort to educate the public about anything. I see Michelle Obama pushing fitness more often.

        • Holden Pattern

          Should I have added sarcasm tags?

          • Anderson

            Oh. No, I probably would’ve ignored those too. Sorry.

          • AcademicLurker

            Sure, but you should call the Yglesias tags.

      • Blue Neponset

        No way. You’re more stupid.

        • Holden Pattern


      • mpowell

        I know this is sarcastic, but this is actually much different than bully pulpit thinking and that is important. Instead of screeching about how Obama should have used his bully pulpit, liberals need to build a better communications organization. Right now we have the problem that all the alledgedly liberal media members are almost entirely careerists power-worshippers.

        • Holden Pattern

          Also, the nominally liberal sane billionaires don’t want to change the status quo and they’re basically starfuckers who want to get close to politicians, unlike the conservative billionaires (sane and insane) who understand the that the politicians are simply members of the servant class — the butlers of the servant class, if you will.

        • joe from Lowell

          Instead of screeching about how Obama should have used his bully pulpit, liberals need to build a better communications organization.

          Isn’t that what happened in the runup to 2006 and 2008?

          I don’t think that looking only at 2009-2010, a period when the economy went down the tubes and barely budged for over a year, gives us the best measure of the effectiveness of liberal and Democratic communications infrastructure. Clearly, there were other factors at play influencing their ability their message out, and the willingness of the public to listen to them.

          Take a look at how the contraception coverage debate has played out, or the coverage of the Trayvon Martin case for that matter. It seems to me that liberals are engaging in some pretty effective communication. Funny how this revitalization just happened to take place at the same time the economy picked up steam, eh?

          • catclub

            Quite true. When the left side wanted to keep Iraq in the news, it stayed in the news. Now, when neither side wants it there, it is gone.

            BTW, which side of the Syria conflict is the independent government of Iraq taking? I would assume they are close to the Iranian position.

            • joe from Lowell

              You would assume correctly. Malaki is running interference for the Assad regime at the Arab League meeting. Iraq blocked a proposal calling for him to step down. This was expected, so many of the member sent only their ambassadors, not their foreign ministers, as is usually done.

      • joe from Lowell

        Oh, now we’re pretending that Obama didn’t talk up the ACA?

        I suppose that’s sort of like how he didn’t talk up the stimulus and remind people about the Republicans’ economic management during the 2010 campaign.

        • Anderson

          No, we’re acknowledging that he didn’t. And I don’t mean “talk up” – I mean EXPLAIN IT.

          It was a bad sign when polls found the public against the ACA in general, even though they favored its specific provisions when quizzed about them.

          Your reverence for Obama is the kind of thing that’s going to help him lose in November. Let’s be real here.

          • joe from Lowell

            Explain it?

            There is a saying in politics, and it goes, “If you’re explaining, you’re losing.”

            The idea that selling a policy is an exercise in explaining its workings is deeply misguided.

            Your reverence for Obama…

            Blah blah blah. It would be nice to occasionally discuss politics with someone capable of better than this.

            • Walt

              Joe, you are just as responsible for the low-level of discourse here as anyone else. You turn to insults and caricaturing your opponents position just as quickly as everyone else does.

          • joe from Lowell

            And I don’t mean “talk up” – I mean EXPLAIN IT…Let’s be real here.

            Yes, let’s.

            EXPLAIN IT. Uh huh, that’s how political debates are won. Through explanations.

            Not “talking up.” Not “selling.” “EXPLAIN IT.”

            Yes, let’s be real here. This isn’t the West Wing.

            • If you prefer a different term, then “sell it”. Or “educate people”. Or “advertise the benefits”.

              It seems silly to deny that this matters; the Presidency isn’t called a “bully pulpit” for nothing. And Lincoln didn’t write those letters and give those speeches to no point — he knew he had to convince the public to move.

              • joe from Lowell

                What is this “bully pulpit” of which you speak? Lol.

                The point is, Obama did work to sell the ACA to the public, and it is revisionist history to pretend he didn’t. He made a primary talking point in his SOTU speeches and other public messaging.

                • It’s curious how much criticism of Obama seems to rest on the assumption that he can never fail. If he does something that doesn’t succeed, it must be because he never intended it to succeed.

                • That’s a pretty impressive swing and miss to the point Anderson and I are making. The point isn’t that selling health care would guarantee success, it’s that failing to sell it pretty certainly guarantees failure. As Wayne Gretzky said, “you miss 100% of the shots you don’t take.”

                  Look, politics consists in selling your ideas to the public. That’s what it is; in an election, that’s pretty much all it is. TR and Lincoln understood that — they were constantly promoting their policy goals to the public.

                  Since politics is a relative game, the amount of promotion one side needs to undertake depends in part on what the other side is doing. If the other side is spending 2 entire years attacking your signature policy achievement with lies and propaganda, then you’d damn well be spending a lot of time and energy defending it.

                  Especially when the Court is stacked with partisans for the opposing team.

    • UserGoogol

      Republicans do not have a “propaganda machine.” Fox News and talk radio etc flagrantly exist to preach to the choir. The idea that conservative media in any way achieve the mass persuasion of the public is radically contradictory with the facts, and is motivated by a desire to hope that conservatives only win elections because they have special election-winning powers.

      • R Johnston

        On the contrary, the idea that conservative media in any way achieve the mass persuasion of the public is entirely consistent with the well proven fact that appealing to idiots through propaganda has special election-winning powers.

  • JMG

    I repeat my point Mr. Lemieux that this may be one of a series of decisions, one of which (we of course don’t know which one) will result in a legitimacy crisis for the current majority on the Court. No one thought at the time that the Terri Schiavo case would be the tipping point in the legitimacy of the Bush administration and the Republican Congressional majority in 2005, but in retrospect it was.

    • Josh G.

      I’d put Hurricane Katrina as the tipping point, though the Schiavo case certainly didn’t help Bush’s popularity any.

      • Njorl

        I’d hang Katrina on Bush, and Schiavo on Republican Congressmen. They were “My God, they really are buffoons, and not just money grubbers” moments.

      • joe from Lowell

        Social Security reform predated both of them, iirc. Bush really put it all on the line for it, too.

    • Wang-Chung

      It is true that a decision striking down the ACA would inevitably be 5-4, which many legal observers believe would decrease the legitimacy of the decision.

      I repeat my point Mr. Lemieux that this may be one of a series of decisions, one of which (we of course don’t know which one) will result in a legitimacy crisis for the current majority on the Court.

      My…MY….All of this caterwallling about the “legitimacy crisis” of the court.

      Where was all of this concern when Roe v Wade was decided in a 5-4 majority?


      Where was the concern and crisis then?

      • Hogan

        Which Roe v. Wade are you talking about? Because the one dealing with abortion was a 7-2 decision. Was there another one?

        • joe from Lowell

          He must mean the one that dealt with an effort to overturn a bill passed by Congress called “Roe v. Wade.”

        • scanner

          *golf clap*

          well done, good sir

    • Incontinentia Buttocks

      Depends on what one means by a “legitimacy crisis for the current majority on the Court.”

      The strongest meaning of that phrase — that decisions of that majority will somehow lack the force of law — obviously will not happen (what’s the mechanism? impeachment of a majority of the SCOTUS?)

      The weakest meaning of that phrase — that some will see that majority as miserable political hacks dispensing ideology not the rule of law — has long since been the case.

      The interesting questions, I suppose, are whether other, intermediate senses of “legitimacy crisis” might obtain. I’m thinking of times in the past when attitudes toward the supposed illigitimacy of the Court’s decisions have resulted in real political change of a sort not currently taking place. The two most recent examples, I think, are the Roosevelt administration’s dealings with the Court in the ’30s and conservative responses to the Warren Court and its rulings in the ’50s,’60s, and beyond.

      In the first case, Roosevelt and his supporters openly accused the Court of trying to politically obstruct the New Deal and the will of the voters. In response, FDR pushed the Judicial Proceedures Reform Bill of 1937, which would have, among other things, “packed” the Court. The results were mixed. The Bill failed, which contributed to the New Deal’s running out of steam in Congress. But the Court became less obstructionist, both due to changes in its membership and (possibly) response to political pressure.

      In the second case, anger at the Warren Court led to decades of conservative legal organizing and political pressure which eventually resulted in the federal judicialry of today.

      I think there’s zero chance that we’ll see a repeat of the Roosevelt story (or some variation of it), in part because Roosevelt’s courtpacking is widely seen (for pretty good reasons) as a huge political blunder.

      Will we see a progressive version of the conservative response to the Warren Court? I doubt it very much. It would entail a radical reorientation of the way progressives and especially the mainstream of the Democratic Party think about judicial appointments and the relationship of ideology to judging. Outside of the left fringe of the Democratic Party which has been calling for this kind of thing for decades, I see no movement in this direction. And even if it were to happen, such a response would take decades to ripen. And it would lack the funding base available to the conservative legal movement of the ’70s and beyond.

      So, in short, I’m not sure what a “crisis of legitimacy” would look like and I doubt very much that anything that might bear this name and might actually happen would make any political difference.

  • Incontinentia Buttocks

    Though I don’t think the game of of ¿Quien es mas progressive? is all that meaningful, if the ACA gets overturned and he’s unable to craft any sort of replacement for it, Obama presumably can no longer be seriously called the second most progressive President since FDR (if we’re talking about achievements).

    • joe from Lowell

      Lily Ledbetter Act.

      Dodd-Frank, including CFPA.


      GHG regulations.

      DADT Repeal.

      Food Safety Overhaul.

      SCHIP expansion.

      Credit Card Bill of Rights.


      Ended the Iraq War.

      Eliminated the missile defense bases.

      Increased CAFE standards.

      Saved the auto industry.

      Mercury/Toxics regs, and the rest of the EPA’s anti-coal agenda.

      Appointed two women to the Supreme Court.

      Hate Crimes Bill.

      Swiss Bank Accounts.

      Eliminated Abstinence Only education funding.

      I don’t see what post-war President, except Johnson, even comes close to that record. The distance between Obama and Clinton, Carter, Truman, and Kennedy was so great that he probably still comes out ahead even without the ACA.

      • R Johnston

        It’s a good thing you led with Lily Ledbetter, because everything else on there was either the result of massive foot dragging or was at best marginal in actual impact.

        The first significant bill Obama signed was a good sign, but it was all downhill from there.

        • joe from Lowell

          OK, even if we pretend that’s true, then judging the other liberal Presidents since World War II by your totally-not-nuts criteria still doesn’t move any of them ahead of him.

          • lists are fun

            depends on what happens with the tax cuts and any kind of deficit deal or entitlement reform

            Abolished Restrictions on Medical Research and the Right to Choose

            Family and Medical Leave Act

            “Reinventing Government” Initiative Launched

            Motor Voter Registration Signed

            Earned Income Tax Credit

            Expansion/Working Family Tax Cut

            Childhood Immunization Initiative

            AmeriCorps Community Service

            Brady Act Signed

            Head Start Reform and Creation of Early Head Start

            Assault Weapons Ban

            Community Police Officers

            Violence Against Women Act

            Community Development Financial Institutions (CDFI) Fund Created

            California Desert Protection Act

            Prevented Economic Collapse of Mexico

            Child Support Enforcement Expanded

            Preventing Permanent Striker Replacement Issued

            Prohibited Religious Coercion in Schools

            Dayton Peace Accords Signed

            Food Quality Protection Act

            Safe Drinking Water Act

            Minimum Wage Increased

            Health Insurance Portability and Accountability Act

            Mental Health Parity

            Protections for Mothers and Newborns

            Fairer Tax Treatment of the Self- Employed

            Fighting Fraud and Waste in Medicare

            Patients’ Bill of Rights

            Grand Staircase-Escalante National Monument

            • joe from Lowell

              I think the case against Clinton here rests not so much on a lack of achievements, but on the demerits. Welfare reform signed, Don’t Ask Don’t Tell, the other parts of the Crime Bill, etc. You have to look at both sides of the ledger.

              I, unlike you, didn’t include accomplishments that, while necessary and impressive, aren’t particularly progressive. Fighting Fraud and Waste in Medicare, for instance – very nice, but not exactly progressive. I could have included decimating al Qaeda and killing bin Laden, but the discussion was supposed to be about progressive accomplishments.

              • Scott Lemieux

                This. When you look at what Clinton did on balance, there’s no way his record is more progressive than Obama’s even if the ACA is struck down.

          • R Johnston

            I noticed the entire lack of an argument there.

            Assertion is not an argument.

            Dodd Frank is pathetic gibberish at the best.

            ARRA was a concession to right wing lunatics who wanted to reject the notion that government spending can do good, who wanted several years of recession and barely nominal growth, and who got what they wanted.

            The idea that the Obama administration has regulated greenhouse gasses in a manner that’s improved our outlook is so far beyond insane as to demand that you kill yourself for proposing it. At best Obama’s done less harm than some alternative and hasn’t even pretended to try to do good.

            I’d continue, but I know a losing cause when I see it.

            • joe from Lowell

              Your judgement about this EPA’s actions is even worse than your level of factual knowledge, and it carries over to everything else.

              BTW, the “argument” that who, amazingly, managed to miss was that your rather forced, rather selective high standards, if applied to the other post-war Presidents, don’t move any of them ahead of Obama.

              • R Johnston

                I still notice the complete lack of an argument from you.

                Seriously, what about Obama’s EPA actually makes the world better as opposed to making it worse somewhat less quickly than a Republican would?

                Meekly proposing grossly inadequate regulations at a time of crisis and doing nothing to actually make them happen isn’t particularly better than no regulations at all, especially given the tendency to just give up when Republicans whine like babies.

            • Anonymous

              Assertion is not an argument.

              Dodd Frank is pathetic gibberish at the best.

              Let’s just note the irony of typing those two sentences, back to back, presumably mere seconds apart, with no sense of irony whatsoever.

      • gmack

        ¿Quien es mas progressive?

        No doubt, in the Progressive Death Match, Obama is totally going to kick Clinton, Truman, Kennedy, and Carter’s ass, even if they try to do like a tag-team or some shit.

        ‘Cause Obama is so fucking progressive that the future can’t look far enough ahead to see him.

        • R Johnston

          Obama’s so progressive that he loops back upon himself and shoots beyond that, bypassing regressive conservatism to be be a meandering nonideological squish who doesn’t give a fuck about anything.

          • Fap fap fap

            God, I’m so awesome. There’s nothing in this world good enough for me!

      • Furious Jorge

        Is “saving the auto industry” really something that can be considered a progressive achievement?

        I agree that it was important, of course, and it’s certainly one of the things Obama has done right. But I guess I’m having trouble understanding why this in particular would help support the claim that Obama’s the 2nd-most progressive president since FDR.

        • R Johnston

          It’s something a Republican wouldn’t do. If you take your cure from the republican party and become tribalistic enough then Obama can be seen as progressive.

        • Is “saving the auto industry” really something that can be considered a progressive achievement?

          “Good jobs at good wages” is hardly a conservative slogan.

          • R Johnston

            True, but it’s a center-right technocratic slogan as much as it’s a liberal or progressive one. Progressives don’t own people just because they’re not right-wing lunatics.

          • Scott Lemieux

            Saving union jobs and addressing market failures in an intelligent way is progressive policy. The auto bailout most definitely counts. And the idea that DADT repeal doesn’t count because you’d prefer that he have used a methods that would have permitted the next Republican president to reinstate the policy with the stroke of a pen while accomplishing it all of a few months earlier is idiotic.

  • Josh G.

    I have to disagree. With the exception of Bush v. Gore, the other cases you mentioned just didn’t break down on strictly partisan lines like the ACA case does. At the time Brown v. Board was decided, both northern Democrats and Republicans had generally gotten tired of the South’s backwardness, which shamed America in front of the world and damaged our standing in the Cold War; only the Dixiecrats were strongly in favor of segregation. The school prayer case was indeed quite unpopular, but not in a sharply partisan sense; staunchly Democratic Catholics were just as likely to oppose it as Republicans, perhaps more so; remember, the modern Religious Right coalition didn’t then yet exist. As for the criminal justice cases like Miranda, again this was not a strictly partisan issue at the time it was decided; it was Nixon who made “law and order” a Republican slogan in his 1968 campaign.

    Furthermore, again with the exception of Bush v. Gore, most of the cases mentioned could plausibly be reconciled with existing precedent. (That won’t matter with the general public, as you note, but it will definitely get the attention of Democratic policymakers, many of whom are lawyers.) And Bush v. Gore could be at least explained (if not excused) by saying that it was an unusual emergency situation (how often does a presidential election hinge on a couple dozen miscounted votes in one single state?) and that the chaos might have been worse if the Court had not stepped in. I don’t buy that for a second, and it’s hard to avoid the fact that Scalia et al. violated their own previously expressed judicial views in their opinion in this case, but Democratic officials could at least take solace in the fact that as long as our Party got a solid win in future elections, we’d be fine. That would not be the case with a strikedown of ACA; there would be no safe harbor, no Democratic political achievement protected from the Republican Five.

    This is not a sustainable situation. The last time the Supreme Court declared open war on a particular political party was during the FDR administration. And, ultimately, the Court had to back down. I doubt another attempt at packing the Court is something most Democrats really want to do, but if it’s that or be forever consigned to the political wilderness, it becomes much more thinkable.

    • Holden Pattern

      And which Dems exactly do you think will take action (if they ever again have the ability)?

      Because the Dems cut their own throats when they decided that they would go centrist/corporatist back in the early 1990’s, rather than rebuild their coalition, and there just aren’t enough Dems with the guts to do much beyond make some regretful noises and then go back to dialing for dollars.

      • Josh G.

        Many of the worst centrist, corporatist Blue Dog Democrats have already retired (Dodd, Bayh), are retiring (Nelson, this means you) or were defeated in 2010. If we win the House in 2010, and/or keep the Senate, it will probably be with a better and more progressive coalition than we had in previous years. The revitalization of the Democratic Party is proceeding slowly, but it is proceeding.

        • Josh G.

          Oops, should have been “If we win the House in 2012…”

          • joe from Lowell

            I wonder about this. If we win the House in 2012, wouldn’t that require winning quite a few purple and light red districts? Who do you think would be winning them?

            • Furious Jorge

              Fair enough, but how many GOP freshmen represent more-or-less blue districts?

              Honest question, but if it’s a significant number, then there you go.

              And even if it’s not, the winning candidate doesn’t necessarily represent a midpoint of the views of his constituents. Which should be apparent from the fact that there *are* Republicans representing blue districts.

        • Holden Pattern

          Maybe. But in most of those states, you’re seeing deliberate legislative campaigns to make it structurally impossible for anyone except a Republican to win, and I think you’re discounting Citizens United and the next case, which will be striking down any restriction on campaign spending by corporations, including direct contributions.

          • joe from Lowell

            Tom Delay thought he was making it structurally impossible for Democrats to win through the 2005 Texas redistricting plan. What he ended up doing was making a whole bunch of solid red seats into purple seats, and the Democrats won his seat in the next election.

            These things are tough to predict. Who thought that Citizens United would mean that the best-funded, most corporate Republican would have a harder time nailing down the nomination?

            • Holden Pattern

              Not that it matters, but I would have predicted exactly that, since I am aware of the number of insane billionaires in the world. There’s always an insane billionaire willing to spend their equivalent of a hundred dollars to pull the discourse even further right.

              And what is being done nationally is much different than Delay’s redistricting plan — redistricting is the least of what’s being done.

              And that is my one-a-day limit of responding to JFL.

              • joe from Lowell

                I would have predicted exactly that

                Then why didn’t you? Why didn’t anyone? Why didn’t any of the people you read?

                Everyone’s a genius in hindsight.

              • joe from Lowell

                And what is being done nationally is much different than Delay’s redistricting plan

                It is indeed: none of Delay’s redistricting was blocked by the DoJ or the courts.

        • John

          Dodd should not be discussed in the same breath with Bayh or Nelson. Bayh and Nelson were centrist, corporatist hacks who opposed Democratic legislation for kicks or to stroke their own egos. Dodd was a totally reliable vote for mainstream liberal proposals. You could, I suppose, argue that he neverhtless counts as centrist and corporate, but in that case so does virtually every other Democrat in the Senate.

    • Anderson

      The Court in 1936 faced a popular, if polarizing, president with a strongly Democratic Congress. No such constraints hinder today’s Court.

      If Roberts et al. can throw this decision and help get Obama out of office, Romney will likely get to replace Ginsburg and perhaps even Breyer, as well as assure right-wing replacements for Scalia and Kennedy if they step down. They have the chance to keep the Court on the Republicans’ side for at least another generation. Versus the likelihood that Obama would get to appoint at least one replacement for a Republican justice in a second term, and tilt the Court’s balance with incalculable effects.

      You think they give a fuck about “legitimacy” when the stakes are that high? I don’t.

      • Holden Pattern

        Which is why Bush v. Gore was so revolutionary — the court directly intervened in an election which would determine the ideology of the court itself.

        • Anderson

          And that shit worked, too.

          When something works, you keep doing it. Human nature.

        • Holden Pattern

          In fact, maybe one way to think about Bush v. Gore is as the anti-Marbury. The court asserted jurisdiction, chose to act in a way that benefitted the majority’s political preferences, but refused to set a precedent that others could rely on because that would not have been in accord with the political preferences of the majority.

      • joe from Lowell

        This comment assumes that the court overturning the ACA would harm Obama’s reelection chances. I’m not so certain.

        Can you name any other Presidents whose reelections turned on a Supreme Court decision?

        • Anderson

          This comment assumes that the court overturning the ACA would harm Obama’s reelection chances. I’m not so certain.

          Of course you aren’t, because your view of Obama differs from that of 70% of the population, at least.

          The ACA should be what he’s running for re-election on. Having it declared unconstitutional – seeing the Dems condemned by the Court as power-mad enemies of American liberty – will tell independent voters that the GOP has been right all along about this guy.

          And it will do Romney a HUGE favor. Instead of having to answer questions about how the Dems’ plan is based on his plan, there will be no ACA left to beat him over the head with.

          • joe from Lowell

            Of course you aren’t, because your view of Obama differs from that of 70% of the population, at least.

            Huh? Obama’s favorables are in positive territory – but putting that aside: how about actually answer the question, rather than your dodge about my wrongthink?

            Can you name any other Presidents whose reelections turned on a Supreme Court decision?

            You’re making these very confident predictions about how this would turn out, and I didn’t ask if you could repeat them. I asked if you had any evidence you could point to.

            • Furious Jorge

              I think, aside from that opening comment, he actually did engage the underlying point – certainly it addressed the section of your comment that he included in italics.

              If you’re going to accuse people of dodging, perhaps your own dodges should be a bit less transparent.

          • socraticsilence

            Wait, that goes both ways though- if the ACA is overturned its a bit hard to make “Obamacare” the centerpiece of your campaign against the man. Additionally, kicking 2.5 million young adults off of thier parents insurance months before the election seems shortsighted.

        • mark f

          George W. Bush, Bush v. Gore.


          • joe from Lowell


            I meant a case comparable to this, in which a President’s legislation was overturned.

            It seems to me that the biggest political outcome of that happening has been Republicans getting mileage out of bashing “judicial activists.” I’m wondering if there are counterexamples.

    • What makes you think court packing would work? This Congress can’t get magistrate judges appointed.

  • Karate Bearfighter

    Isn’t there a sort of functional loss of legitimacy if the Court creates an incoherent jurisprudence that cannot be used by lower courts to guide their decisions?

    • Anderson

      As the collected jurisprudence of Justice O’Connor demonstrates, the Court has never worried too much about what the lower courts think.

    • Holden Pattern

      No, there’s a loss of consistency, as lower court judges (also packed with Federalist wingtards) make up their own rules.

      But legitimacy is based on actual power, and there’s no loss of that.

      • Karate Bearfighter

        Sure, but one of the Court’s most important powers is its ability effectively decide lower court cases through clear precedent. A SCOTUS decision that does not announce a clear rule won’t decide future cases.

        • R Johnston

          This is a more important point than most people acknowledge. Very few cases make their way up to the Supreme Court. A Supreme Court that doesn’t guide lower courts cedes its most widely applied power. A Supreme Court may decide that’s worth it because honest guidance is politically untenable or because the lower courts are stacked in its favor, but that doesn’t change the fact that a Supreme Court that doesn’t guide lower courts is ceding an important power and fundamentally not doing its job.

          • Holden Pattern

            I don’t disagree with this. So maybe it loses “legitimacy” for some lawyers and some cognerati.

            But it won’t lose POWER, and that is ultimately what confers legitimacy on its decisions — the jurisprudence might be incoherent, but it will be incoherently wingtarded, and will provide power to the wingtards.

            • mpowell

              No, you’re still missing the point. Part of the power that SCOTUS currently yields is that lower courts follow the principles SCOTUS has set in ruling on a variety of issues that SCOTUS will never rule on directly. If you don’t have a coherent set of principles, this is impossible. It may not be a problem for this court, though, if they think that the most likely result will be to empower reactionaries in the lower courts to start doing whatever they want.

              • Holden Pattern

                It may not be a problem for this court, though, if they think that the most likely result will be to empower reactionaries in the lower courts to start doing whatever they want.

                I think this is exactly what they think, because they’re right. They understand the following things:

                1) The Dems in the Senate are mostly a stew of fecklessness, institutionalism, and corporatist conservativism, so they won’t even try to appoint a lot of liberal judges to the lower courts, let alone try to break the Republican willingness to use “comity” and procedure as a weapon to prevent anything like that from actually happening.

                2) Similarly, the Republicans will appoint a metric fuckton of Federalist Society wingtards every chance they get, and the Dems won’t try to stop them.

                3) As a consequence, the deck is already stacked in the lower courts.

                4) The Republicans are busy stacking the deck electorally, both legislatively and in the wingtard-stacked courts. Screw that “demographic destiny” noise.

                5) So the wingtards in the lower courts will basically do whatever is best for movement conservatism — not universally, since they have lifetime tenure, but consistently enough to make a difference. And anyone who doesn’t conform will have their decision slapped down by the Wingtard SCOTUS with some bullshit rationalizations and distinctions-without-differences.

                This is the bet they’re making — I think it’s a pretty safe bet given the interlocking power structures among our ruling classes.

                • mpowell

                  Okay, I mostly agree with this. But its still the case that for SCOTUS to directly exercise power they need to maintain a coherent set of legal principles that drive appelate court decisions.

  • Lee

    If the Supreme Court declares the ACA unconstitutional, it will be a disaster on multiple levels. Not only would we return to the pre-ACA status quo but further HCR would be put off for at least a generation. This is the immediate disaster.

    The other issue is that we really do not know how the Supreme Court conservatives are going to declare the ACA. At best they do it a narrow fashion that really only ends the ACA. At worse, the five conservatives on the Court could join forces to issue a decision that really hinders the ability to pass liberal legislation like they did during the Lochner era with the doctrine of substantive due process.

    Even a narrow ruling against the ACA would be bad because the Supreme Court would have established itself as another veto point in a political system filled with veto points.

    • Richard

      I agree that a decision striking ACA down will be a disaster and that there won’t be heallth care reform for another decade at least.

      but I think the chances of a sweeping SCOTUS decision that endangers other government programs is very remote because Kennedy and most likely Roberts won’t join in. If its an adverse ruling, I think Roberts will write it, joined by four others, which focuses on the activity/inactivity distinction which would make it applicable to ACA and almost nothing else. I think there will be three, more sweeping concurring opinions but they won’t constitute a majority ruling or precedent.

      I’m still hopeful that Kennedy will vote against overturning the law but not as hopeful as I was before the arguments were held

      • Everyone keeps assuming Roberts won’t act like a crazy Republican, apparently on the Mitt Romney principle — he looks nice and doesn’t roll his eyes and rant, so he must be a normal guy.

        Rove didn’t nominate anyone for any position unless they were guaranteed to put the Party first and everything else dead last.

        • Richard

          There’s that but there’s also the fact that his opinions on the court so far haven’t been crazy and that he hasn’t joined the Thomas view that we need to go back to the 19th century (although I certainly disagree with many of them). But it is not to the Republican party’s advantage to have an opinion that questions the validity of all federal programs. A narrow decision overturning the not very popular ACA, on the other hand, is arguably to the Party’s advantage. I just don’t see any argument for the proposition that the Republicans stand to gain from a fire and brimstone decision that questions Medicare and other government programs that ARE popular.

      • R Johnston

        The inactivity/activity distinction is incoherent gobbledygook that depends 100% on framing and can be manipulated however a judge wants to in any case. Basing the overturning of the ACA on it would give lower courts unlimited license to invalidate whatever they hell they feel like. On top of having no legal basis to begin with, it is a useless distinction for narrowing the scope of an invalidation of the ACA.

        • Richard

          I agree with you that the distinction can’t be justified on constitutional grounds but I don’t think that a decision that says you cant mandate persons who are inactive to be active (by requiring purchase of insurance) is going to be easily manipulated. As all parties conceded before the Supreme Court, the mandate of the ACA was unprecedented (although, in my opinion, clearly premitted under the Commerce Clause) and there are not going to be any new laws that mandate purchase of anything. I still think that any decision to overturn will be narrowly written and, like Bush v. Gore, never used again

          • joe from Lowell

            I don’t feel at all confident about making predictions, but Justice Kennedy appears to be someone motivated by a conservative legal/constitutional philosophy that he applies to cases, as opposed to a movement conservative motivated purely by results, like the other four.

            If this is the case, then he is more likely to support a narrow ruling.

            • Richard

              That certainly has been Kennedy’s whole history

              • joe from Lowell

                It’s been his history to a much greater degree than the four on his right.

                • Richard


            • John

              I’m dubious. If I had to nominate a conservative justice as one motivated by a conservative legal/constitutional philosophy that he applies to cases, as opposed to being motivated purely by results, I’d say that Thomas comes closest. His philosophy is insane and awful, but it really does seem like he applies it consistently and without too much regard for outcomes.

              Kennedy, it seems to me, is one of the most results-oriented of all the justices. The issue isn’t that he’s more principled than Scalia or Alito. It’s that he’s less conservative, so the results he’s pushing are not always ones movement conservatives would agree with.

              • Richard

                But assuming your analysis is correct, the result that he would like is one that overturns ACA and helps the Republican party, not one that can potentially question Medicare and other popular programs and potentially harm the Republican party. I agree that he’s results oriented in a practical way, not in favor of sweeping decisions, and is likely to join in a narrow opinion and, since he wuold be the deciding vote in a decision to overturn, be able to insist on a narrow opinion. Then again, he may join in a narrow opinion upholding the ACA on the ground that there is a limiting principal that can be applied to the insurance mandate but not extended to other mandates.

                • John

                  I agree with that. I was objecting to Joe’s characterization of Kennedy as someone actuated by principles rather than hackery. Kennedy is at least as big a hack as anyone else on the court, it’s just that his politics are somewhat different.

            • R Johnston

              There is no such thing as a narrow ruling contradictory to every Commerce Clause case of the last 75 years.

              • Richard

                We disagree. I think there can be a very narrow decision that says mandates to buy are not allowed without overruling or distinguishing any of the prior Commerce Clause decisions. Just like Bush v. Gore is a narrow decision in that it is contrary to prior law but limited to that one presidential election and will never be cited again

                • R Johnston

                  You think so? How? Please be explicit.

                  It’s not possible, not by a longshot.

                • Richard

                  I think I have explained but let me set it forth again. You have a Roberts decision, joined by Kennedy, that buys the inactivity/activity distinction. Congress can do whatever it wants under the Commerce Clause as long as it doesn’t force people to enter the marketplace and mandates it to buy insurance (or broccoli or cell phones). Since there isn’t any other federal law other than ACA that does this right now (conceded by all sides in the briefs filed with the Supreme Court) and since I can’t think of any other legislation other than ACA likely to be passed that would mandate anybody to buy anything, such a decision wouldn’t have any effect in challenging other legislation, current or future.

                  This seems very possible to me, even likely. But I’m hoping that Kennedy writes a decision, joined by the four liberals/moderates, that upolds the law with some sort of limiting principal. (Of course, I would prefer he join an opinion by Breyer with no limiting principal but that seems unlikely)

                • R Johnston

                  It doesn’t matter in the slightest if the Court claims that the activity/inactivity distinction is sensible. It’s not. If your immediately prior state of activity is sitting still then sitting still is inactivity. If your immediately prior state of activity is driving at 100 MPH directly into a brick wall then sitting still means you are quite dead.

                  The activity/inactivity distinction is phenomenally and indisputably utter bullshit that appeals to only those who don’t give a fuck about logic or reality

                • R Johnston

                  To clarify, from an infinite possibility of choices, sucking your thumb and doing nothing is just another choice that may or may not lead to desirable consequences and that has no legally desirable or rationally requirable consequences in any possible universe absent some specific argument that doesn’t refer to the activity/inactivity distinction.

                • R Johnston

                  100% of the time, plus or minus 0% of the time, with a margin of error of 0%, the activity/inactivity distinction is relative to a baseline. A legal rule that the activity/inactivity distinction matters is a declaration that baselines do not exist and is universally recognized as utter bullshit among sentient beings who give a fuck about logic.

                • Richard

                  Hey I’m not justifying the activity/inactivity distinction so stop swearing at me.. Get a fucking grip. I agree with you that it makes little sense. What I am saying, in response to your question, is that a decision based on that distinction which prohibits mandating people to buy insurance will not effect any other current legislation or any other legislation likely to be passed in my lifetime

              • joe from Lowell

                “Narrow” in the sense of “how much judicial action is taken based on the finding of a constitutional violation.”

                If the mandate is found to be unconstitutional, the Court could decide to rule narrowly, and only strike down the mandate, or broadly, all the way to striking down the entire Act.

                • R Johnston

                  And in the sense of how it will be interpreted and applied as precedent? In the sense that precedent matters? What are are possibilities there? Have you no understanding at all of the degree to which the courts are filed with right wing lunatics?

        • Hogan

          Is there such a thing as “lawful chaotic evil”?

          • Linnaeus

            I believe that’s “neutral evil”.

        • Scott Lemieux

          Plenty of Supreme Court standards are incoherent or vacuous. I remained baffled by your selective legal formalism.

          • R Johnston

            Overturning the ACA is blood in the water to wingnut sharks eager to look for any excuse to overturn the welfare state.

            Anyway, incoherent vacuousness results in effective dismantling of preexisting law, even when it claims to be narrow change. Consider, for example, “undue burden” as opposed to the standards of Roe v. Wade. Sure, it took a while for legislatures and judges to understand how thoroughly Roe was dismantled by P.P. v Casey, but they most definitely learned. It won’t take them nearly that long this time if the ACA is struck down incoherently and vacuously.

            Incoherent vacuousness that overturns existing relatively clear law is never a good sign, even if incoherent vacuousness itself is mostly common and benign.

      • I think the chances of a sweeping SCOTUS decision that endangers other government programs is very remote because Kennedy and most likely Roberts won’t join in.

        Yeah, but if there’s a concurring opinion that’s more aggressive than the narrow decision, it gives lower court Federalist Societistas material to use in their next round of decisions which force further SC clarification…. by which time Scalia could be the median vote.

  • Honorable….BOB

    This is pretty fun stuff.

    I can’t think of when I have been so entertained for so little.

    Thanks, guys.

  • L2P

    You lost me at Kelo. I haven’t looked at Kelo in years, but my recollection is that althought it was controversial politically, it wasn’t controversial legally. It was hardly overturning 200 years of precedent. It was at best an open question whether eminent domain was limited in any way; I doubt Alexander Hamilton thought that the government couldn’t use its eminent domain power to create railroads, for instance. That should have mattered to Scalia and Thomas, right?

    On the other hand, if the Court strikes down the ACA they are clearly creating new law and getting rid of 200 years of consistent interpretation of the Necessary and Proper clause, and 70 years of consistent application of the Commerce Clause. That’s controversial. And they’re doing it for clearly political reasons.

    This is very different. Extremely different.

    • R Johnston


    • Scott Lemieux

      it wasn’t controversial legally.


      Sure it was. Leaving aside the 4 dissenters, it’s not hard to find legal scholars who are critical of it. I happen to think it was correct, but it’s hardly self-evident.

      • R Johnston

        Unadulterated nonsense. Fake outrage is fake. Kelo was controversial legally the way that FOX News is fair and balanced. Legally speaking Kelo was the bland application of continuous uncontroverted precedent of the last 200+ years.

  • scanner

    Just to clarify, is the logic behind the “it’ll be another decade before we get a chance at HCR” claim mostly a statistical guess at the difficulty of cobbling together another Democratic Congress and President?

    • Richard

      Its based on what happened after HilaryCare in 1992. Sixteen years before another attempt. If the Supreme Court knocks down ACA, Obama won’t have the votes or the incentive to pass a new broad law in his second term (assuming of couse he gets reelected) And assuming a Democrat gets elected in 2016 with a Democratic majority in Congress (a big assumption), there still wouldn’t be votes for single payer (not even close) and I don’t see how you get reform that accomplishes the goals of comprehensive health care (mandated coverage for pre-existing conditions, coverage for more of the currently uninsured and some incentives to reduce the price of health care) without an individual mandate.

      • Mark

        Maybe, but that sixteen-year gap required that some very unlikely things happen. Had Gore been allowed to take office in 2001, he probably would have attempted some sort of HCR. The mess in Florida made clear some of the most important weaknesses in our electoral system, but the odds were against something so weird actually occurring.

        Secondly, if the 9/11 attacks had not occurred there’s a good chance we would have inaugurated President HRC in 2005. It would not have taken some crazy impossible changes for the attacks to fail or for the plot to be detected in time.

        I realize that this is pure speculation on my part, but the claim that we could not attempt HCR for another generation is pretty arbitrary and the sixteen-year gap was the result of two sorts of contingencies that are not likely to be repeated.

        As always, the outcome depends on what American voters do and that is not easy to predict.

        • Richard

          I fully agree that what American voters do is not easy to predict but it’s pretty certain that a second Obama term or a first Romney term won’t lead to comprehensive health care reform. So the earliest we could have it is the first term of a Dem elected in 2016. Is it likely , given what we’ve seen that Obama went through,that health care reform would be high the first priority for a newly elected Democrat?
          So the earliest an administration could take this up is five years from now and that is a real stretch. An estimate that this topic won’t be brought up in any meaningful way for another ten years seems to be a fai

          • Richard

            Seems to be well within the realm of probability. – is how that last sentence from above should have ended

          • scanner

            Is it likely, given what we’ve seen that Obama went through, that health care reform would be high the first priority for a newly elected Democrat?

            Two things,

            first being that while 1995 and 2013 both may lack a Health Care Reform law, using the state of the Democratic party post HillaryCare as a comparison for the Democratic party post ACA seems a bit apples-and-oranges. ACA represents a successful legislative action. While obviously neither state would be preferable, I think a post-ACA Democratic party would be at least a bit stronger by virtue of having previously accomplished a pretty remarkable feat.

            second, obviously convincing the party of the logic of single payer/ignoring the incumbent stakeholders would be difficult, and that should not be understated. But the quoted section implies a bit of….I don’t know, ennui with even tackling the notion, even if we do manage to elect the right people. Part of the reason HillaryCare and the ACA dragged out for a whole year was because they took a lot of pages to write. My understanding of a single payer bill is that the meaningful section would be approximately one page long.

            Again, #2 would take a while, which is why I don’t think even carbon-duplicating 2008’s results in 2012 would lead to Medicare for all….but, against your quote, once the party wants to do it I don’t see why it’s not straightforward just to do it.

            • scanner

              Oops, re-reading your original post I don’t think I’m really disagreeing with you. Ignore that! Just the use of HillaryCare as a reference point, mostly.

              • Richard

                My point on HilaryCare is only that bringing the issue up and failing doesn’t seem to lead to an opportunity in the short term to bring it up again and succeed. If the court overturns ACA, I think it’s unlikely the Dems will bring it up again soon

                And given Obama’s troubles with getting health care passed during the first year of his presidency, I don’t think a Dem taking over in 2016 will make health care his first priority

                I hope I’m wrong but overturning the law is very likely to mean no health care reform over the next ten years

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