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The Fabulous Four


Steve Benen on the scary part of today’s Supreme Court ruling:

And yet, as of this morning, four justices — Alito, Kennedy, Scalia, and Thomas — insisted on doing exactly that. The four dissenters demanded that the Supreme Court effectively throw out the entirety of the law — the mandate, the consumer protections, the tax cuts, the subsidies, the benefits, everything.

To reach this conclusion, these four not only had to reject a century of Commerce Clause jurisprudence, they also had ignore the Necessary and Proper clause, and Congress’ taxation power. I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks — had Kennedy been willing to strike down the mandate while leaving the rest of the law intact, this may well have been a 5-4 ruling the other way.

Roberts’ motivations notwithstanding, it’s important that Americans understand that there are now four justices on the Supreme Court who effectively want to overturn the 20th century. Based on the flimsiest of arguments, the four dissenters want to kill progressive legislation basically because their political ideologies tell them to do so.

There are some who argue that this year’s presidential election isn’t especially important. I hope those who believe this consider what today’s court minority was prepared to do, and what they will do with just one more vote.

I have a lot of criticisms of this administration, but anyone who says that this election doesn’t matter or that Romney and Obama are basically the same need to think again. The radical right on the Supreme Court and in Congress want to return the nation to the Gilded Age. Obama does not. That’s a pretty freaking huge difference.

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  • howard

    this has been touched on in other threads, but it’s worth repeating: that there are 4 justices who want to throw out commerce clause precedent is no surprise, we simply thought they were roberts, scalia, thomas, and alito.

    but that kennedy also thinks that way? that was the surprise (bearing in mind that kennedy is not a particularly clear-minded or logical thinker).

    • Holden Pattern

      I think that the other Opus Dei judges have been working on Kennedy.

    • Incontinentia Buttocks

      Actually there appear to be five Justices who want to throw out commerce clause precedent. One of them just thought that the ACA could be treated as a tax and upheld.

      • Craigo

        All snark aside, I am impressed that John Roberts (who no doubt hates this law like Scalia hates consistency) was able to remember that not everything that one dislikes in necessarily unconstitutional. That’s difficult for everybody, but especially for a guy who had the power to enact his wishes so.

        And he had to know that he was sealing his fate as History’s Greatest Monster since Earl Warren. You could correctly point out that he’s only earned the opprobrium of people who miss McKinleynomics and poll taxes, but it was still a brave act.

        • Incontinentia Buttocks

          I’m not denying Roberts’s bravery. I’m just noting that he shares the minority’s reading of the Commerce Clause.

          • Craigo

            Oh, of course. And I agree that they’re flatly wrong, some of them more egregiously so than the others. (Since Thomas likes to pretend that the clause basically doesn’t exist, he gets a pass for being consistent.)

            • Pseudonym

              So in turn you like to pretend that Thomas basically doesn’t exist?

          • Richard

            Not quite. Although they agree on the outcome, he did not join in the dissent and the dissent did not join in the Roberts opinion. And the reasoning of the two is different. I dont think this restriction on the scope of the Commerce Clause will matter. No precedent was overruled (or even questioned) and it is very unlikely that Congress is going to go out and regulate what Roberts and the dissent call “inactivity”. It wasn’t done before ACA and its unlikely to be done in the future.

        • John

          Do non-insane Republicans actually hate this law? Like, does Chuck Grassley or Orrin Hatch (or Mitt Romney) actually hate the content of the Health Care law? Isn’t the real issue that they hate Barack Obama?

          I think it gaves way too much credit to the objections to this law to assume that non-insane Republicans actually have any particularly strong objections to its content. Republican opposition is almost entirely political.

          I suppose maybe some of these people have convinced themselves that they actually hate the content of the PPACA. But that just means they’re lying to themselves. Republicans had no interest in passing a health care law, and no particular actual liking for “their” idea of the mandate, but they had no real objection to it either, four years ago. If they’ve convinced themselves otherwise today, it has little to do with the content of the law.

          • Ken

            Inasmuch as many of them were trying to pass this law (mandate and all) just a few years ago, I would have to go with “hate Barack Obama”.

            Or wait – is this one of those trick questions, where it turns out the real answer is “there are no non-insane Republicans”?

            • John

              I would say that they weren’t in any sense “trying” to pass a health care law like the ACA. In the 90s, they floated a health care plan somewhat like the ACA so as to have an alternative to Hillarycare, but they never made any effort to actually turn that plan into law.

              That being said, the fact that they suggested such a plan shows to me that they didn’t have a particular ideological objection to it – they just don’t really care about helping uninsured people, so, given the choice, they’d rather just not pass anything.

              But that’s not the same thing as thinking that the ACA is a gigantic threat to freedom, something Grassley, for one, obviously didn’t think as recently as 2009.

              And, while others might disagree, I’d say that I don’t think most of the congressional leadership of the Republican Party is insane. They’re happy to demagogue on the tea party opposition to the ACA, but I have a very, very hard time thinking that they actually believe any of that nonsense. Mitch McConnell is a shrewd man with no discernible principles. The idea that his opposition to the ACA has to do with deeply held ideological distaste for it is hard to credit.

          • DrDick

            Do non-insane Republicans actually hate this law?

            That is like asking how unicorns feel about it.

            • John

              I don’t think people like Grassley or Mitch McConnell or John Boehner are insane. They are awful people who have no compassion for the less fortunate and mostly care about preserving their own privileges and those of their friends. But they’re not lunatics or radical ideologues in the Paul Ryan vein.

            • Haystack Calhoun

              Speaking as a Greatwhitenorthian, single-payer, government-run plans, from a practical point of view, are just a better way to address healthcare, whatever one’s feelings about the less fortunate. It’s about helping everyone avoid catastrophic medical bills. Helping the poor is a bug, not a feature.

          • Icarus Wright

            +1. The conservative opposition here is entirely about rejecting Obama.

          • Pseudonym

            If it were sold as a way to punish the uninsured loochers and mooters the Republicans would be scrambling over each other to support it.

      • Not throw out – carve out a distinction – regulation of inactivity vs. activity. That’s a test that turns this type of issue into a semantic game, which shouldn’t be the court’s role. If Congress is acting within the scope of its legitimate power for legitimate purposes, legislation should not succeed or fail based upon the Supreme Court’s determination that it used the wrong wording when exercising its indisputably legitimate power.

        • Yeah, the applicability of this distinction seems so narrow that I think, if anything, Roberts was only trying to keep it from being misconstrued as commerce precedent than anything. It doesn’t seem like there’s any obvious danger for commerce clause precedent, or at least no more so than we already knew there was yesterday.

  • Alan Tomlinson

    ” . . . [I]s not a particularly clear-minded or logical thinker . . .” could apply to Scalia, Thomas, and Alito as well.


    Alan Tomlinson

    • (the other) Davis

      Say what you want about the tenets of Clarence Thomas. Dude, at least he has an ethos (see his dissent in Raich, for example).

      • Adam

        Agreed. I may totally disagree with Thomas but at least he is consistent.

  • Halloween Jack

    anyone who says that this election doesn’t matter or that Romney and Obama are basically the same need to think again.

    Hell, I’ve been making this point since aught-four, but you’d be surprised (or maybe not) who think that President Kerry would have put the same people in SCOTUS–not justices like Roberts and Alito, but those guys.

    • Halloween Jack

      “maybe not) at the people who think”

    • Incontinentia Buttocks

      The other ridiculous thing I’ve been hearing recently is that the whichever party doesn’t control the White House will be so intransigent in the Senate confirmation process that, despite their different desires, Romney and Obama would end up getting more or less identical Justices confirmed to the SCOTUS.

      This has the pseudo-virtue of complexity (at least it doesn’t posit that Romney and Obama would want the same folks on the bench…tho’ there’s a Romney-in-his-heart-of-hearts-is-a-centrist variation that does), but it’s still complete and utter bullshit.

      • Craigo

        I do think that if Obama wins, the Republican rage will be such that they will filibuster his next Supreme Court nominee.

        Hell, any federal judge he nominates between now and next January just got put in the waiting room.

        • Just got put? You missed this?

          • Craigo

            I did.

            sorry for the short response, must go throw up

          • John

            Well, that was only two weeks ago, which might be considered to have “just” happened.

        • NonyNony

          If the Dems control the Senate and the GOP goes through with a filibuster of an SC nominee, the nuclear option will be rolled out. It really would be the final straw – especially if the Dems put together another “Gang of 14” compromise attempt and are rebuffed by the GOPers. The GOP will whine, but they were the ones who proposed it in the first place under W, and so I think enough of the Senate Dems will come around to allow it. (It’s the right thing to do anyway – “advice and consent of the Senate” should really not mean “60% of the Senate agrees with your selection” – and that was true under W as well, as much as I hate that fact).

          If the Dems don’t control the Senate then it won’t matter because Obama’s second term will involve him doing as much damage control as possible anyway.

          What are the odds of losing the Senate but Obama wins the election this time around?

          • Incontinentia Buttocks

            Actually, the nuclear option is the wrong thing to do. The right thing to do is get rid of the filibuster by adopting new Senate rules by a simple majority vote at the start of the next term.

            The idea that filibustering judicial nominees is unconstitutional (which is the centerpiece of the GOP’s nuclear option) is ridiculous.

          • Craigo

            As much flack as Matt Yglesias gets sometimes (often deservedly so), I started reading him way back when because he was one of the few people online who actually agreed with me that we should have just let them use the option. (It was not a popular position on Daily Kos, trust me.)

            As for your last question: That’s basically up to Angus King. If I had to guess it will be 49D, 50R, and one narcissist.

            • John

              It seems fairly certain that King will caucus with the Dems, doesn’t it?

              • Craigo

                “It’s all going to depend on what the situation is when I get there, and that will depend to some extent on what the numbers are…”

                Translation: Whoever’s willing to make me number two in seniority.

    • I must be older than you. I’ve been making that argument since the mid-80’s.

    • John

      Who are these people? Are they people who follow politics at all closely? Because that’s actively insane.

      • Craigo

        One of my college roommates, who was in college, was unsure in 2004 as to which party was on the left and which was on the right. Not in a hipster way, but in a “I thought the Democrats were the conservative ones” kinda way.

        And oh, yes, he has a college degree.

        • Holden Pattern

          Conservative in the sense of “generally trying to preserve the status quo”, yes.

          Conservative in the sense of “batshit insane coterie of Gilded Age Revivalists and Cultural Revanchists”, no.

  • rea

    that there are 4 justices who want to throw out commerce clause precedent is no surprise

    Oh, it’s worse than that.

    They want to throw out their own prior opinions for no beter reason than transient political advantage. And there is not the slightest hint of what would follow after.

    • Is it truly political advantage?

      Even if you presuppose that the justices who would have voted down the ACA were motivated by their sincere interpretation of the Constitution, not by ideology, they were aware that overturning the ACA would be viewed as political partisanship, and would be analyzed for decades to come as an example of judicial overreach. In this case they seem willing to give up some political advantage – to diminish the reputation of the court – in favor of advancing their preferred interpretation of the Constitution.

    • howard

      rea, when i was a mere lad, no one doubted that the right wanted earl warren impeached (and william o. douglas impeached and beheaded), and i, for one, want scalia impeached.

      and what you just said is one of 3 reasons why, the other two being his generally dismissive attitude towards stare decisis and his growing habit of inserting right-wing talking points into his opinions without them actually being of issue before the court.

      to me, those are all high crimes and misdemeanors for a supreme court justice.

      • rea

        Howard, I may actually be a bit older than you–I remember thsoe “Impeach Earl Warren” signs too.

        Rather than impeach Scalia, I think we should help him. The workload for Supreme Court justices, particularly elderly ones–is too big to handle–the Court needs to be expanded to 11 Justices. :)

  • wengler

    The real scary thing is that Justice Thomas gets payments directly into his family’s bank account from the same people that are constructing the new Gilded Age. And no one seems to care.

    • Uh it’s his wife’s bank account.

      I’m surprised at the level of venality attributed to a Supreme Court Justice, whom we all know are not motivated by the baser urges which drive the mass of lower humanity it is their honor and responsibility to marshal toward the sunlit uplands of truth, reason and light.

  • I can’t read Chief Justice John Roberts’ mind, but it wouldn’t surprise me if the extremism of the four dissenters effectively forced him to break ranks…

    Just as Roberts crafted an opinion in which those who joined with him in upholding the ACA did not join his Commerce Clause analysis, he could have crafted an opinion that struck down the mandate (and perhaps some other provisions) while upholding others – it would likely have been an unholy mess of a plurality decision, but he could have done it.

    I think Roberts’ opinion highlights the concern of those who railed about “liberal law professors trying to intimidate Roberts” – that Roberts is very much aware of the fact that this is his court and his legacy. He crafted an opinion that future generations cannot view as a dramatic overreach, as he upheld the legislation. Odds are that this opinion will either end up as an interesting footnote in future ConLaw textbooks, or it will become the cornerstone of a series of new cases that redefine the Commerce Clause and move us… if not directly back toward Lochner, certainly in a direction away from the New Deal cases. His embrace of the “activity/inactivity” distinction is a nod to the political right, although it’s a semantic game and thus not likely to again be raised during any of our lifetimes, but it sets a tone for how the court will address future Commerce Cause issues. And as some have noted, Roberts’ Spending Clause analysis is pretty radical – if future cases follow that lead, he can claim to have laid the cornerstone.

    In contrast, the reversal of the ACA, or a partial reversal with five justices picking and choosing which sections should stay and which should go, would likely always be regarded as a controversial decision, a textbook example for future discussion of where the Court’s powers legitimately begin and end. Roberts now bears no responsibility for history – the ACA succeeds or fails on its merits, and he bears no responsibility for the chaos and uncertainty that would have followed its full or partial reversal.

    It’s fair to say that the biggest winners in this outcome are the uninsured, because there are so many of them. But if you are looking for the one individual who had the most to gain from this outcome, its probably John Roberts.

    • John

      Can anyone explain why Breyer and Kagan joined Roberts’s spending clause analysis?

    • H-Bob

      Since the mandate was upheld based on the tax power, the Commerce Clause analysis is merely dicta as it is unnecessary for the result. Of course, if the Court’s composition doesn’t change, then that dicta will be used to support a decision actually limiting the Commerce Clause. However, if the Court’s composition does change, Roberts’s analysis of the Commerce Clause is not precedent.

  • The radical right on the Supreme Court and in Congress want to return the nation to the Gilded Age. Obama does not. That’s a pretty freaking huge difference.

    Yea, but you know what would be even better? A candidate who wants to move the country forward into the 21st Century versus Romney.

    • Steve LaBonne

      I can drive my Honda Fit to work, so that I can afford health care and food. But you know what would be even better? A Lamborghini.

      Neither of us is going to get his wish any time soon. So I’ll keep driving the Fit and I’ll vote for Obama.

  • David Hunt

    I have a lot of criticisms of this administration, but anyone who says that this election doesn’t matter or that Romney and Obama are basically the same need to think again.

    I’ve been voting in Presidential elections based on the type of Supreme Court nominations that I expect from since ’92. In my first election in ’88, I supported GHWB to my everlasting shame. I console myself by remembering that I live in Texas and that my vote has absolutely no meaning in any practical sense.

  • Larry

    Six months ago (yes, Friedman unit), I said Roberts would decide the vote in favor. How did I guess right? Because big insurance, big hospitals, and big doctors wanted the plan as is to forestall a Medicare for All type plan later. Roberts more than anything else is a corporate courtier. Simple. You may applaud me now.

    • shah8

      I was much louder than you.

  • I would say the 4 horsemen remain the worse reactionary wing of the Supreme Court in history if only because the circumstances of the 1930s were so much worse. But boy, the modern conservative wing is something else.

  • jonnybutter

    Actually, the nuclear option is the wrong thing to do. The right thing to do is get rid of the filibuster by adopting new Senate rules by a simple majority vote at the start of the next term.

    Thank you @IntercontentiaButtocks. I grow more convinced everyday that the Dem’s problem is that people hate, despise them for their spinelessness, not their policies per se. It makes perfect sense for a relatively unpolitical person to reason that if dems won’t defend themselves, they won’t defend YOU – it makes sense because it’s true, unfortunately! Republican pooh bahs, I’m sure, roar with (Rovian) laughter about how pathetically bad the dems are at politics, not to mention how cowardly and inertial. I would also bet money that those pooh bahs and pols have been amazed more than once at what they’ve been able to get away with. There has been just so little real resistance.

    There are hundreds of examples I could give you or you could come up with off the top of your head. A couple recent ones: 1.) Obama (and Reid) not making a deal on the debt limit while they could because they thought they were making a sly maneuver. Yes, really. And, 2.) the dems didn’t take their last opportunity to change the Senate rules. Sometimes I just want to slap the reading glasses off some of these fat old faces and remind them that this is a political war whether they like it or not, and by the way they have grown a little too comfortable with losing.

  • Josh G.

    I agree that the Court is one of the most important reasons why Obama must be re-elected. I wonder, though, if he will actually get to make any decisive changes in a second term. The oldest Justice is Ruth Bader Ginsburg (79), and while it would obviously be good for Obama to replace her with a younger individual, it wouldn’t actually change the decisions substantially.
    Tony Scalia is 76. I doubt he leaves the bench under a Democratic President unless he has no choice. At his age, it could go either way.
    Kennedy is only a few months younger than Scalia, and it’s at least conceivable that he might voluntarily step down sometime in the next few years.
    One of the worst things about life tenure on the Supreme Court is that it pretty much mandates discrimination on the basis of age and health (if you’re too old or too ill, you’ll never get a court nomination from either party now, regardless of your merits). It also encourages macabre spectacles such as waiting around (or praying) for people to die. Someday, someone (probably on the far right) is going to decide they want to do more than just wait. Maybe, just as the assassination of Garfield ended the spoils system, such an event would generate the public outrage needed to end Supreme Court life tenure.

    • Incontinentia Buttocks

      In fact, Obama would almost certainly replace Ginsburg with someone to her right…though obviously with someone much less far to her right than Romney would.

      • howard

        are kagan and sotomayor demonstrably to ginsberg’s right? not as far as i’ve seen….

        • Yeah, I was wondering about that too. Esp. Sotomayor. She seems to have been an affirmatively good pick, period.

          Kagan is also much better than many feared, afaict.

          A lot will depend on the structure and composition of the Senate. If dems are in control and Ried follows through on the filibuster, Obama might have more space and perhaps some will to aim for some balance. Or to pull an inverse Roberts/ Alito.

        • Richard

          Kagan and Sotomayor are turning out to be great picks. Allied with Ginsburg on most issues but not all the time and not even with each other on every case. But on the important cases, they share a common viewpoint and each is able to express it very well. They also seem to be able to make common ground with Roberts on important issues. And they are going to be on the court for a very long time.

          • Cody

            I agree that Obama has been very shrewd with his SCOTUS picks. I doubt Republicans realized just how smart these judges were going to be.

            They represent themselves as conservative “Democrats” to get nominated, then seem to consistently hold progressive opinions with real logical reasoning.

  • jonnybutter

    [slaps forehead] not to mention the reason we’re blogging today. Everybody remember the health care bill fight? Everybody remember that the dems almost gave up at the last minute, with a wan little puppy-whine? Really, unbelievable.

    It is insane to pretend that it doesn’t matter who wins the pres. in the fall. It matters a hell of a lot that any member of the Republic party doesn’t win. But I have to admit that, going forward, the arguments one hears to the effect that we are just ‘enabling’ a rotten system by voting for dems, are starting to have a very big ring of truth to them, afaic. Our duopoly smells a lot like ‘good cop, bad cop’ – or ‘bad cop, worse cop’.

  • Murc

    Maybe this is just me, but… I think this is the wrong argument.

    I’ve seen article after article decrying elements of the Supreme Court as radical, with a clear agenda that they’re hell-bent on pushing. And honestly, the only thing I can think of is “Yeah? So?”

    Radicalism in and of itself means shit, and in fact is often necessary. The Founders were radicals. The Republican Party of 1860 had a shit-ton of radicals and they were the ones with all the best ideas. The Warren Court and the New Deal courts radically re-shaped our understanding of civil rights and the extent of the govenrments ability to regulate the economy.

    So I could give a fuck about radicalism, and in fact I get a little bit huffy when people argue from a standpoint that makes it clear they think merely being radical should disqualify a person or an idea from serious consideration.

    I’m not angry at the “bring back the Gilded Age” faction on the court because they’re radical. I’m angry at them because they are WRONG. Substantively. They subscribe to a vision of government power that is actively pernicious and would make the country worse in a lot of ways. Whether that vision is radical or not is beside the point.

    • howard

      the issue with radicalism from the right is that there are far too many people who think that right-wing activist jurisprudence is the same as conservative stare decisis minimalist jurisprudence, and the public needs to be reminded, over and over.

  • Richard

    I just spent a half hour reading the opinion and although Roberts and the dissent find that the provision cutting off all medicaid funds if a state does not agree to the medicaid expansion is unconstituionally coercive, there are major differences between the two opinions.

    The dissent says that any conditions imposed by Congress that , in the Court’s view, make refusal not a practical option are unconstituional. In other words, the Court gets to make the ultimate finding based on its feeling about practicality versus impracticality (and considering extrinsic factors that are not part of the judicial record).

    Roberts has a much more limited view. Congress can impose conditions on the states willing to enroll in new programs. But it can’t impose a condition of losing funding for old programs if the state doesn’t enroll in the new program (even if, as in this case, the new program is given the same name as the old program). I don’t buy this argument but it is a much more limited one, and unlikely to apply to much legislation.

    • Pseudonym

      How does this work? Do states have a right to the funding for the old program under the old rules? Does that apply to any other law?

  • Richard

    One other point. Although I agree with Benen that the dissent takes us back a 100 years regarding the power of the federal government, it seems not to have been written by Scalia or, at least, in his current rant and rave style. At one point, it even talks about its “respectful response’ to Ginsburg’s opinion. Not sure what to make of that.

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  • Cody

    Isn’t it pretty telling that Obama’s stated desire to give everyone the “same opportunities” is considered socialism now?

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