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King v. Burwell — Is There Reason For Optimism?

[ 112 ] November 11, 2014 |

Since Dahlia Lithwick and Barry Freidman cite me (not inaccurately!) as a “purveyor of doom” based on my analysis of the Supreme Court’s cert grant in King v. Burwell, it’s worth given even stronger consideration than usual to the always extant possibility that things aren’t nearly as bad as I think they are.

There are two areas where more optimism may be warranted.  The first is the question of how the Supreme Court rule on the merits.  Lithwick and Friedman:

First, it is simply wrong to assert that the justices never take a case like this absent a split in the lower courts, unless—like the Big Bad Wolf in “Little Red Riding Hood”—they are licking their chops to kill something. To the contrary, as some have already argued, it makes perfect sense for the justices to take a case of this importance the first chance they get. If the subsidies ultimately are unlawful, there will be a lot of disruption; people need to know as early as possible what is going to happen, and states need to figure out how to react. Even though there is not a formal split in the circuits at this moment, some lower courts—both trial courts and the D.C. Circuit in its original ruling—have gone against the government. Therefore, there is room to wonder what the ACA means exactly, and it takes the Supreme Court to resolve this confusion definitively.

It’s possible, certainly. But I find the citation of Johnathan Adler on behalf of the proposition that the Supreme Court has good reason to settle this case right now more chilling that reassuring. (I will just observe that he’s still calling this a “a straightforward statutory case” while arguing that the clear intent of Congress was that the Moops invaded Spain and drop the mic.) It’s worth noting one reason why the architects of the latest challenge to the ACA want this decided quickly: the longer the exchanges are given to work, the harder it will be to repeal them, something we’ll return to in a second. Similarly, I’m not really persuaded that political calculations will stop Roberts from gutting the exchanges. I do think that Roberts would prefer not to have his name on a ruling that explicitly says that the Affordable Care Act is unconstitutional. (George Lovell and I tried to explain this dynamic in a paper that’s held up better than I would prefer.) But siding with the plaintiffs here wouldn’t do that, and the resulting chaos would more likely to be blamed on Obama than the Court. Finally, while I agree that the attitudinal model of judicial behavior is too simplistic the behavior of Republican nominees on the lower courts does not do much to make me think that this being a statutory rather than constitutional case will make it less political.

Having said all this, I don’t know that we disagree that much. The rule of four means we can’t be certain that there are five votes to reverse; it may be just the four Sebelius dissenters figuring they have nothing to lose. A justice leaning toward gutting the exchanges might change his (I’m comfortable with this assumption) mind. I think the smart money is that the Court will side with the plaintiffs — it would be very much of a piece with Roberts re-writing the Medicaid decision — but if you had told me Kennedy was going to vote to strike down the ACA I would have given it a 0% chance of survival, so I don’t claim any special ability as a Politburo watcher.

The second area where I may be excessively pessimistic concerns the aftermath of the Court ruling that the subsidies are not available on the federal exchanges. (See also Simon Miloy in Salon.) L/F:

Fourth, even if the justices did decide that the subsidies were invalid, that might actually help Obamacare, not hurt it. There’s going to be a lot of pushback to yanking the subsidies out of the hands of the 4.6 million people that are already getting them. In this scenario, many of these people would have had health insurance for one brief moment and then would again be unable to afford it. There is a difference between denying a benefit you never experienced and taking away a benefit that made your life immeasurably better for a brief period of time. If the court sides with the challengers, it is going to put pressure on the states that opted out of creating an exchange for ideological reasons to do something to ensure that those who can’t afford it can get insurance. Perversely, the existence of the sprawling federal exchange and subsidy made it easier for states to thumb their noses at the ACA. It gets a lot tougher if state exchanges are the only realistic possibility for many people. In the end, striking the federal subsidies may push more states into the Obamacare fold.

I certainly agree that the ultimate policy outcome of a Supreme Court opinion siding with the ACA truthers is uncertain. Denying people benefits they already have is a different political dynamic than passing health care reform in the first place. The combination of the Roberts Court’s inept re-writing of the Medicaid expansion and wrecking the exchanges in a majority of states would create interests — hospitals, medical providers, middle class people who have lost their insurance — more powerful than the uninsured who would be urging statehouses to fix things. If Democrats can maintain the White House and/or Senate to keep the ACA from being repealed or completely gutted, if Obama no longer being president makes opposition to the ACA less intense…it’s not entirely out of the question that red states would start building their own exchanges and take the Medicaid money.

But at least as far as the exchanges are concerned I’d still say it’s a longshot. Certainly, in the short term Republican state legislators have much more to fear from primary voters who would eject them from office for BAILING OUT OBAMACARE!!!!!!! than from any other group of voters or organized interest. Republican state legislators and governors didn’t pay a political price for refusing the Medicaid expansion, and they aren’t likely to think they have to fix the exchanges either. Again, the key problem here is the diffusion of accountability inherent to the American system — Obama will take most of the blame for the actions of a Republican-dominated Supreme Court and Republican statehouses. In this context, the short-term effects of the Court reversing King would be bleak.  And the fewer people that get the benefits of the ACA, the easier it would be for a unified Republican White House and Congress to severely damage or repeal it.

A bad Supreme Court outcome is not certain, and if we get one the only response is to fight — I agree with Lithwick and Friedman on both points. But I still think that a bad Supreme Court outcome is very likely, and I find it hard to envision a scenario in which such an outcome won’t be pretty disastrous. On both counts, I hope I’m wrong — it certainly wouldn’t be the first time.

“If neither the facts nor the law are on your side, pound the asinine right-wing talking points.”

[ 59 ] November 11, 2014 |

You may be aware of the latest ACA faux scandal, conveniently timed to distract people from the now very real possibility that the Supreme Court will use deeply silly arguments to strip health coverage from millions of people. It involves something someone said on a videotape that allegedly destroys the foundation of the ACA or some such.

Now, it probably won’t come as a surprise to you to know that this video involves Jontahan Gruber, the consultant who if I understand current Republican doctrine was solely responsible for initiating, writing, amending, and casting votes in Congress for the Affordable Care Act. He’s been cast in this vastly exaggerated role in part because his stray comments (contradicting his contemporaneous comments and assumptions) about the availability of subsidies on the federal exchanges have been used as the piece of cherry skin in the midst of 3,000 acres of apple trees that turn the land into a cherry orchard. Now, I’m sure Gruber is a very fine health care economist who played a valuable role in the creation of the ACA (just ask him!) And I will also say that I’m an academic, and if you go through the archives of this blog you’ll find any number of poorly-thought-out arguments that don’t hold up. If much of my extemporaneous speech was being recorded I’m sure the problem would be worse. On the other hand, I have never been a self-appointed PR person for major reform legislation. If you’re determined to take on that role, you really should choose your words with more care and be sure as possible that what you’re saying is accurate.  Don’t do things like calling voters who don’t pay careful attention to policy details “stupid,” not least because it’s not actually true. (Gruber seems to think of himself as a masterful rhetorical salesman; I’m sure his heart is in the right place, but I’ve seen strikingly little evidence of that.)

All this said, this controversy is almost as dumb as Halbig trooferism itself. If you look at the quote, what’s true or at least truish is not damning, and what isn’t true also isn’t damning:

This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO [Congressional Budget Office] scored the mandate as taxes, the bill dies. Okay, so it’s written to do that. In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass….Look, I wish Mark was right that we could make it all transparent, but I’d rather have this law than not.

On the CBO thing — look, at the margin legislation is going to be written so as to get the more favorable CBO projection. Having the mandate not scored as a tax for CBO purposes is a minor, largely arbitrary distinction in order to placate the arbitrary wishes of some conservative Democrats is absolutely bog-standard politics, not some sort of scandal. And for contemporary Republicans to complain about this…cool story, bro. And as for the fact that John Roberts declared this a tax rather than a penalty — 1)it’s a distinction with no actual substantive difference, and 2)it was made necessary only because of his refusal to apply more than 70 years of settled commerce clause precedent and more than 200 years of Necessary and Proper clause precedent, so not my problem as someone who would apply said precedents.

The second point Gruber is making isn’t really coherent enough to make sense of, but what Gruber seems to be describing here is not the Affordable Care Act per se, but “all public health care provision and all health care insurance.” Having the healthy pay for the sick is how all provision of health care works. Even in the absence of a mandate to purchase health insurance, this is how it works — Medicare is paid for by taxes on the more healthy, private insurance “overcharges” the more healthy to pay for the sick, and people who forego insurance voluntarily are covered by guarantees of emergency care that are paid for by taxes of the more healthy. I’m honestly baffled as to what Gruber is even getting at here; this aspect of essentially all health care provision is also common to the ACA, as is entirely transparent. The mandate was designed to prevent younger and healthier people from free riding, as was not only not a secret but the well-understood point. The fact that Medicare remains enormously popular despite having this feature would seem to suggest that this “news” “getting out” would not be fatal to the ACA.  Taken at face value, Gruber’s assertion is bizarre.

My guess is that what Gruber is getting at is that proponents of the ACA reemphasized its redistributive aspects and emphasized its benefits. Which…cue Claude Rains. I mean, this idea that people proposing legislation are responsible for making the case for it and an (exceedingly stupid) case against is just ludicrous bad faith.

But this does bring us to a further layer of derp. If the ACA must be discredited because the public didn’t know that…it functioned like all forms of insurance, what does that say about the opposition? If one can only make a case against the ACA by talking about DEATH PANELS and NATIONALIZING ONE SEVENTH OF THE NATIONAL ECONOMY and THE MOOPS INVADED SPAIN etc. etc. etc. then opposition to the ACA is super-ultra-extra discredited and clearly we must all concede that the Affordable Care Act is the greatest legislative enactment in known human history.

Serial

[ 23 ] November 11, 2014 |

So…should I be listening to this?  Is it as addictive as everyone says?

And Sometimes Bad News Is Probably Just Bad News

[ 126 ] November 10, 2014 |

It may well have been two whole hours since you’ve read one of my columns.  Fortunately, the suspense is over!  My take on the Supreme Court’s decision to jump the Halbig en banc and decide the ACA troofer case:

This is why the Supreme Court’s decision to step in is so disturbing. If there was still a circuit split, one couldn’t really infer very much about the position of the justices. But the court preempting the en banc hearing of Halbig is another story. “There was no reason to take this case in order to uphold the ACA, given the nearly certain result of the en banc,” Margo Schlanger of the University of Michigan Law School told me. “So that means there are four justices who want to strike it down who think they have five votes to do so.”

[...]

It’s very likely, in other words, that John Roberts is on a crusade to slowly poison the ACA to death without issuing a single high-profile ruling holding the ACA unconstitutional. First, he re-wrote the Medicaid expansion in a way that denies health insurance to millions of poor people (while not even meaningfully protecting state sovereignty). And now, Roberts might be ready to join the court’s other Republicans to destroy most of the exchanges based on legal arguments that are even more dubious.

Don’t be fooled. Such a ruling would not reflect any legal principles. Rather, it would reflect the Republican Party’s longstanding offer to people who lack health insurance: nothing.

But read the whole etc. if you want to be angry on a Monday morning.

I should note that some smart observers are more optimistic than I am: see for example Brianne Gorod and Ian Millhiser. The latter makes an interesting argument about how Roberts could use the arguments advanced by 18 states to save the subsides while advancing other reactionary federalist goals. It’s very possible, given his third way in Sebelius. And one might think that a large number of states filing briefs in favor of the federal government’s position, although I would caution that 36 states filing or signing amicus briefs supporting the federal government didn’t stop the Supreme Court from striking down part of the Violence Against Women Act in the name of “states’ rights.”

Let’s also be clear that this a life or death issue: see Beutler, and in a particularly heartbreaking essay, David Tedrow.

Finally, this twitter thread uncovered by Josh Marshall really tells you a great deal about modern Republicans. You have your Michael Cannons who are just straightforwardly giddy about people being stripped of their insurance. But then there are people who just think that it’s unpossible that someone could get their health insurance cancelled and be ineligible for Medicaid under the status quo ante, because Free Market Ponies! What can you say? It’s this moral and political universe in which it is quite likely that five Supreme Court justices will claim they’re enforcing the will of Congress by enforcing a nonsensical interpretation of a statute no member of Congress who voted for the legislation agrees with then or now.

…Bill Gardner is a fellow pessimist.

Today, Even Good News Takes the Form of Bad News

[ 50 ] November 10, 2014 |

6CA’s decision to force the Supreme Court’s hand is likely to ultimately have good consequences.  Sutton’s opinion unintentionally reveals why the bans can’t be defended:

Finally, Sutton reverts to the fancy theoretical means conservatives use to justify exclusionary traditions: originalism. One conservative legal blogger argues that Sutton’s claim that “[n]obody in this case…argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage” should “be the beginning and end of the analysis.”

Let’s leave aside the many problems with the originalist approach to constitutional interpretation. The fact is that relying on the particular policy expectations of individual framers isn’t even good originalism. The framers and ratifiers of the Fourteenth Amendment enacted a general principle of equal protection, not the specific policy expectations of individual lawmakers.

Indeed, most framers and ratifiers of the Fourteenth Amendment thought that segregated schools and bans on interracial marriage were consistent with the equal protection of the laws, but this doesn’t make Brown v. Board of Education and Loving v. Virginia wrong. The only question is whether the Fourteenth Amendment’s equal protection principles are consistent with excluding gays and lesbians from the fundamental right to marry. The answer to that question is “no.”

The most fundamental problem with Sutton’s argument, as Judge Daughtrey eloquently observes, is that “the majority treats both the issues and the litigants here as mere abstractions” while not “recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there.”

All of the hand-waving about federalism and judicial rights cannot disguise the fact that this case involved victims of unconstitutional, invidious discrimination that does very real harm to their lives. Hopefully, the Supreme Court will correct this injustice sooner rather than later.

 

 

Position-Taking is Not the Problem

[ 270 ] November 10, 2014 |

Rich Yeselson’s midterm postmortem should be read in its entirety. I’d particularly like to highlight this:

Based on number five, it would seem that Meyerson makes a strong point: Democrats need to act like, at the least, a party of leftist populism in order to galvanize its core constituency of the young, single women, and people of color, increase turnout, and more fully resist the GOP extremists. The problem is that while this is the right thing to do normatively, there is no particular evidence it would be that effective politically. The Democratic senators who got beat ran ahead of Obama’s approval percentage in their states. And a lot of them got killed.

It’s not the 1930s anymore — white people in Kentucky, Louisiana, and Arkansas despise anything that reminds them of the national Democratic party, which they already think is socialist as it is. They don’t want it to move left, they think it’s grotesquely left enough.

It was craven for Alison Grimes to not even say whether she voted for Obama, but there’s no social science or historical evidence that would indicate most Americans are intensely interested — as a matter of voter-motivated preference — in greater union bargaining rights, redistributive public programs, and the taxes that would be needed to pay for them.

This cuts the other way, too — Grimes probably didn’t gain much by running away from Obama and especially the ACA, since she’s tied with both anyway, so you might as well try to make a positive case (especially when many people in your state are benefiting from the Medicaid expansion.) But the idea that voters in most of the states where the Democrats lost are looking for full-throated left-wing populism is dreaming in technicolor. The number of voters in these races who don’t like Obama because they don’t think he’s liberal enough are essentially a rounding error. Enacting populist economic policies could well have substantial political benefits (although as the passage of the most important progressive legislation in nearly five decades shows, maybe not), but politicians talking about them more won’t.

I Am Pretty Sure That Lynch Ordered the Hit on Vince Foster, Though

[ 56 ] November 9, 2014 |

SHATTERING REVELATIONS FROM BREITBART:

New York federal prosecutor Loretta Lynch, the new nominee for attorney general, has a career filled with high profile cases — and she was a member of Bill Clinton’s defense team during the 1992 Whitewater corruption probe.

As he made his announcement Saturday afternoon, Obama called the two-time U.S. Attorney for the Eastern District of New York a “tough, fair and independent” lawyer.

“It’s pretty hard to be more qualified for this job than Loretta Lynch,” Obama said.

Indeed, the prosecutor has a long career built of some high profile cases but there is one case Lynch was involved in that few are talking about. Lynch was a part of Bill Clinton’s Whitewater probe defense team in 1992.

Let us pretend to be hackish enough to pretend that a young U.S. Attorney involved in drug prosecutions was, for some reason, part of Clinton’s Whitewater defense team. What remains unclear is precisely what this revelation is supposed to be telling us. So Lynch 1)served as a part of the Clintons’ defense team 2)during a non-scandal in which the Clintons did nothing wrong. What does this have to do with the price of poutine in Quebec City? It’s amazing that at this late date merely saying “Whitewater” is supposed to signify some kind of major scandal when there’s less than nothing there. (In fairness, you can also do this kind of thing in a Harper‘s cover story.)

You can probably see the punchline coming:

Correction: The Loretta Lynch identified earlier as the Whitewater attorney was, in fact, a different attorney.

In fairness, if you had told me a winger outlet had made this mistake my money would have been on Tucker Carlson.

…hopefully, Vanity Fair will append a similar correction to this headline soon.

Feels Like An Arby’s Night!

[ 25 ] November 9, 2014 |

I guess this only works as a first date if it’s the WORLD’S BIGGEST ARBY’S.

Nobody Expects the Starr Inquisition!

[ 11 ] November 8, 2014 |

When an institution is as indefensible and morally bankrupt as the NCAA, the list of people who can defend it and maintain any trace of self-respect must be rather small.  Small, but not a null set!

Kenneth W. Starr stepped onto Baylor’s football field before a game last month wearing a track suit. He looked in better shape — less paunchy, less stressed — than he did more than 15 years ago, when he became famous for investigating a sitting president.

[...]

In August, as the N.C.A.A. prepared to approve greater autonomy for five major conferences, Mr. Starr argued on MSNBC’s “Morning Joe” that universities were reforming themselves. In May, on Capitol Hill, he testified against unionization in a hearing that took on a partisan color.

To tweak Atrios’s joke slightly, apparently Lanny Davis is too busy defending Dan Snyder to participate at the present time.

Area Pundit Confuses Mitch McConnell With Everett Dirksen

[ 88 ] November 8, 2014 |

This assessment of the current relationship between Congress and the president is so remarkable it might surpass anything in the oeuvre of Ron Fournier himself:

Progressives have long said that Obama made a mistake in 2010 by admitting he took a “shellacking” in those midterms, and by retrenching rather than pushing harder and louder with a bold progressive message. Those people now seem to have the ear of the president. After naming some unobjectionable items he hoped to get through in the current session, such as fighting Ebola and curbing ISIS, he offered incoming Republicans the chance to work with him on a higher minimum wage and other longstanding Obama agenda items.

Most notably, of course, he said he would take executive action on immigration by year’s end unless Republicans passed a bill. It’s certainly a bold negotiating tactic: You can do what I want, or I’ll go ahead and do what I want anyway. This is how you “negotiate” with a seven-year old, not a Senate Majority Leader.

I’m not sure that isn’t what Obama thinks he’s doing, and I’m sure many of my left-leaning readers are chuckling right now at the comparison. But Mitch McConnell is not a seven year old; he’s an adult, and he just won an election in which voters repudiated Obama and his party. (Temporarily, I am sure, but just the same: As someone once said, “Elections have consequences.”) McConnell is not the proverbial Tea Party extremist who won’t negotiate; he’s an establishment guy, known as a strategist and a tactician, not an ideologue (which is why the Tea Party isn’t that fond of him). In short, he’s someone who can make deals. Responding to McConnell’s rather gracious remarks about finding common goals by announcing that you know what the American public wants, and you’re going to give it to them no matter what their elected representatives say, seems curiously brash. It might chill the atmosphere today when he sits down with congressional leaders.

I…just can’t even. Yes, it’s perfectly true that Mitch McConnell is more of a tactician and strategist than ideologue. This doesn’t mean what McArdle seems to think it does, because his strategic goal is to deny Obama any legislative accomplishments. This can be easily inferred from his tactics, but in case there was any doubt he is entirely upfont about it. The argument stands reality on its head. An ideologue you can potentially negotiate with, but someone who’s opposed in principle to making a deal with you is a different story. The idea that McConnell is going to suddenly drop his blanket opposition to giving Obama any legislative accomplishments now that he’s the majority leader is absurd. And even if Mitch McConnell suddenly turned into a 60s Republican minority leader, the chances that Boehner could deliver the votes for any significant non-budget legislation acceptable to Obama are less than nothing.

Obama’s negotiating posture doesn’t reflect him kowtowing to progressives so much as elementary game theory. When your attempts at cooperation end up with the other side defecting, you don’t keep playing the sucker. If you want to call that like negotiating with a 7-year-old, fine, but it’s also the only rational response. Executive action is Obama’s one and only source of leverage; he’s going to use it. Attempts by pundits to preemptively excuse Republicans for not passing anything by blaming Obama aren’t going to fly.

Nor is this the first time McArdle has made this basic error (via Roy):

If there is one thing that Obama should regret most deeply, it was this fateful quote: “Elections have consequences,” he said. “I won.” Republican intransigence has stymied the president for four years. But the seeds of that revolution were laid in the first two years of Obama’s term, when giddy Democrats decided that he was the second coming of FDR, and Republicans would just have to go along with the Democratic agenda or get left behind. “Bipartisanship” involved gracious offers to let them fiddle with minor details of various plans — the policy equivalent of being allowed to choose the drapes for your maiden cruise on the Titanic. And when Republicans protested, they were bluntly told that their input wasn’t necessary, thankyouverymuchandgoodbye.

His presidency has never recovered from that mistake. The Tea Party Republicans who unnecessarily brought the government to a halt, and double-unnecessarily cost their own party many key elections, have much to answer for. But the Democrats who helped create them have some accountability, too. Democrats who try to attribute all the backlash to Republican racism are fooling themselves, setting themselves up for future repeats of these mistakes.

This argument has not improved with time. The claim about “offers to let them fiddle with minor details of various plans” is rather strange, given that Republicans had lost the White House and both houses of Congress. “Bipartisanship” means that a decisively repudiated minority party should not only be given some influence over the shape of legislation but…control over the legislative agenda or at least the core features of legislation?  I think I can see why Democrats didn’t consider this attractive.

In addition to this, the timeline makes no sense. McConnell’s intransigence was clear during the entire process of passing the ACA; it wasn’t a result of it. Given the moderate and conservative Senate Democrats who were desperate for bipartisan cover and wasted a lot of time trying to get it, this isn’t a difficult counterfactual; there was nothing Democrats could have done to get Republican support without abandoning any significant health care reform altogether. In addition, the Tea Party was of course not a direct response to the ACA. The Rick Santelli rant that was the crucial catalyst was 1)about proposals to help struggling homeowners, not the ACA, and 1)was more than a year before the passage of the ACA. The ACA might have somewhat intensified the Tea Party but it certainly didn’t create it.  (The implicit assumptions have the some problem here as all backlash arguments; you can sometimes reduce backlash by just not winning policy victories, but what’s the point of trying to win elections at all?)  And, needless to say, the idea that not passing the ACA would have been worth the 50 seats the Democrats would have needed to maintain control of the House is absurd.

So, in other words, McArdle is suggesting that Democrats should have foregone trying to pass any substantive legislative agenda in order to 1)prevent two midterm election losses that would have happened anyway (we can quibble about magnitude, but not control of the respective houses) and 2)to secure Republican cooperation that had no chance of coming under any circumstances. It’s a real puzzle that Obama didn’t take this advice!

Supreme Court To Almost Certainly Deny Millions of People Health Insurance

[ 189 ] November 7, 2014 |

It’s not every day that the Roberts Court can be worse than even I expect, but here we are: the Court is about to rule that the Moops invaded Spain. It’s not 100% that King v. Burwell will be overruled, I guess, but I don’t know why else they would preempt the Halbig en banc hearing otherwise.

I will have a piece on this coming out Monday, but it’s hard to overstate how evil and insidious this is. The Roberts Court stops both key components of the ACA from functioning in red states, based on farcial ad hoc legal arguments, without a single high-profile ruling that the law is unconstitutional.

People with strong stomachs can look at Johnathan Adler, in his palpable excitement about millions of people about to be stripped of their health insurance, claiming that this case is about…deferring to Congress. The fact that not a single member of Congress involved in passing the ACA has believed at any time that the subsidies were not available on federally established exchanges and the interpretation of the statute saying otherwise is nonsensical on its face renders this rather dark comedy indeed.

Great First Paragraphs In Dissenting Opinion History

[ 96 ] November 6, 2014 |

Today’s award goes to Judge Martha Craig Daughtrey, dissenting from the 6CA opinion that will ensure that the Supreme Court takes up the same-sex marriage issue squarely:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise—that the question before us is “who should decide?”—and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority’s resolution of these questions based on its invocation of vox populi and its reverence for “proceeding with caution” (otherwise known as the “wait and see” approach), I dissent.

Well, in fairness, I can’t agree with the “engrossing” description, but otherwise yes.

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