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Tag: "Supreme Court"

The Fabulous Four

[ 67 ] June 28, 2012 |

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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A Little Story About an Ancient Montana Plutocrat

[ 51 ] June 25, 2012 |

A long, long time ago (the Gilded Age) in a land far, far away known as Montana there was a man named William Clark. Not the Lewis & Clark guy but instead a mining capitalist. Born in Pennsylvania in 1839, he followed his family to Iowa as a teenager and then went to the Colorado gold mines during the gold rush in 1859. Clark found he enjoyed the mining world and thus went north to Montana Territory to pan for gold in 1863. He quickly realized that panning gold was for suckers. The smart move was to invest in the mines or sell things to the miners. Clark began running a supply service between Montana and Salt Lake City and made a good bit of money in it. He used that capital to become a banker where he began buying up defaulted mining properties and by the 1870s was raking money in hand over fist in the copper industry.

Clark became one of Montana’s three Copper Kings, the territory’s (state in 1889) version of monopolists John D. Rockefeller or Andrew Carnegie. Unlike most of the period’s plutocrats, Clark had personal political ambitions. But very similarly to his fellow capitalists, he felt that he should just be able to purchase his political will. He started this by running a powerful Butte newspaper, where he had built a resplendent mansion while the miners who made his fortune lived in conditions nearing slavery. But that wasn’t enough for Clark. He wanted to be a senator. Now remember that before the passage of the 17th Amendment in 1913, state legislatures chose U.S. senators. One of the big reasons why reformers pushed this amendment was because of William Clark.

When Clark wanted to become senator, he figured the easiest way to do it was to get out his checkbook. Literally. He bought the votes of the Montana state legislature for the 1898 election for about $140,000. Even for the Gilded Age, this was beyond the pale of acceptable corruption. When this came to light early in 1899, the Senate refused to seat Clark. That didn’t stop him though; acting with slightly less obviousness, he managed to get the state legislature to reelect him in 1900 and he served a single term in the Senate. As Clark said, “I never bought a man who wasn’t for sale.”

For reformers, William Clark was Exhibit A for the terrible depths to which the American political and corporate world had sunk. Mark Twain hated Clark with special vigor, writing:

“He is as rotten a human being as can be found anywhere under the flag; he is a shame to the American nation, and no one has helped to send him to the Senate who did not know that his proper place was the penitentiary, with a ball and chain on his legs. To my mind he is the most disgusting creature that the republic has produced since Tweed’s time.”

When Clark died in 1925, he was worth $150 million. Today, that would equal $3.482 billion. His Butte mansion is now a bed and breakfast.

This is the world the 5 Republican Supreme Court justices long to recreate through Citizens United and today’s decision to overturn the century-old anti-corruption laws Montana passed to keep this embarrassment from happening again.

Article 1 Did Not Enact Mr. Paul Ryan’s War on the New Deal

[ 30 ] April 6, 2012 |

In attempting to rebut Koppleman’s point that the argument against the ACA has striking parallels with Hammer v. Dagenhart, amidst a bunch of other howlers Althouse inadvertently reaffirms his point:

But hospitals must treat emergency patients. It really is a problem that some people use this service and fail to pay their bills. But even if you assume the Commerce Clause empowers Congress to solve that market dysfunction — patients consuming a service they can’t pay for — the individual mandate requires a purchase of insurance that covers vastly more services than these required emergency hospital visits.

It seems to me that younger, healthier individuals are being swept in to accumulate an immense fund that will be used to cover the expenses of older, sicker folks. It’s the exploitation of the young, ironically. But Koppelman doesn’t want you think precisely about what the legislation does, and who’s really being required to pay for what. He’d like to roll you up into a big ball of emotion where you visualize poor little children….

While the acknowledgement of a collective action problem is one small step for Althouse, the policy argument here is still wrong. Had Congress merely required young people to purchase catastrophic insurance, this would address the free rider problem that makes arguments that people are being “forced” to enter the healthcare market a joke. But it wouldn’t be remotely adequate to address the adverse selection problem that would result if the insurance pool for most medical services didn’t contain the young and healthy and insurance companies weren’t allowed to discriminate against pre-existing conditions. In addition, Althouse seems to have joined one of the strangest Republican ideas to have emerged from the Tea Party era, the War On the Concept of Insurance. Why do we allow people to get into car accidents “exploit” those who don’t? Why do we allow people whose houses burn down “exploit” those whose houses don’t? Except that as applied to health care this argument is even dumber because while most people’s houses don’t burn down most people get old and everybody dies. The typical young person will only end up being “exploited” by universal insurance (or Medicare) if Althouse’s allies in Congress and the Supreme Court succeed in destroying the safety net (plans that always, it’s worth nothing, exclude Althouse’s demographic from the immense pain she would happily inflict on future generations. Now that’s exploitation.)

But leaving aside the merits of these policy arguments, they’re completely misplaced as applied to a commerce clause/necessary and proper clause case. Even if we assume that Althouse is right that the mandate should be narrower given Congress objectives — which of course she isn’t — it’s beside the point. As has been well-settled (a few utterly discredited anomalies like Dagenhart aside) for nearly 200 years that “any means adapted to the end, any means which tended directly to the execution of the Constitutional powers of the Government, were in themselves Constitutional.” As Toobin recently pointed out, the majority opinion in Heart of Atlanta upholding the Civil Rights Act is also directly on point:

It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress, not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

Althouse, in other words, seems to be smuggling a narrow tailoring requirement from fundamental rights or equal protection doctrines into a federal powers case, but this is completely inappropriate even if we ignore the fact that it’s wrong on its own terms. Congress needs only have ends that are rationally related to these means, and the ACA passes this minimal requirement at least as easily as the Civil Rights Act. Which, of course, is the point: like Dagenhart, the most prominent argument against the ACA doesn’t really have anything to do with state sovereignty; it’s a “liberty of contract” argument in a bad disguise. And (especially to people like Althouse who wouldn’t follow the libertarian premises where they logically lead and hold the Civil Rights Act and Social Security unconstitutional) it’s “liberty of contract” in the worst Dagenhart sense, meaning “the Supreme Court should randomly strike down some laws I don’t like based on really, really bad policy arguments.” For the Court to exhume Lochner like this would be outrageous.

…I agree with a commenter that Holbo’s classic Dead Right review remains the definitive analysis of the War on the Concept of Insurance.

The Key Precedent for the Anti-ACA Argument

[ 33 ] April 5, 2012 |

Andrew Koppelman is correct that Hammer v. Dagenhart would be the most obvious precedent for a Supreme Court decision striking down the ACA:

Both then and now, challengers to the statutes had to propose that the Supreme Court invent new constitutional rules in order to strike them down. At the time it considered the issue in 1918, there was nothing in the Supreme Court’s case law that suggested any limit on Congress’s authority over what crossed state lines. On the contrary, the Court had upheld bans on interstate transportation of lottery tickets, contaminated food and drugs, prostitutes, and alcoholic beverages.

That’s why the Supreme Court’s invalidation of the law in 1918 astounded even those who had most strenuously opposed enactment. Hammer v. Dagenhart declared—in tones reminiscent of the Broccoli Objection to Obamacare—that if it upheld the law “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” Justice Oliver Wendell Holmes, dissenting, wondered how it could make sense for congressional regulation to be “permissible as against strong drink but not as against the product of ruined lives.” The Court responded that unlike all the contraband that it had permitted Congress to block, the products of child labor “are of themselves harmless.” This meant a completely novel constitutional doctrine: The Court took unto itself the power to decide which harms Congress was permitted to consider when it regulated commerce.

[…]

What the Court actually accomplished in 1918 was to thwart democracy and consign large numbers of children to the textile mills for more than two decades. Health care is another context in which the fear of federal power creates a serious risk of ravaging the lives of large numbers of actual people. If the law is upheld, no one is going to be forced to buy broccoli. But if the law is struck down, large numbers of people will die of preventable or treatable diseases, or be bankrupted by medical expenses.

Of course, some Tea Partiers are indeed proud to say that the shoe made with child labor fits.

Another key reason the analogy works is that Hammer was really a “liberty of contract” case in disguise, like arguments against the ACA. The Supreme Court’s inconsistent application of commerce clause restrictions during this area made it clear that they objected to the ends, not the means, of the bans on shipping goods made with child labor. If they approved of the ends, the use of federal power was fine. In both cases, “state sovereignty” is not the real animating issue.

Obama’s DOJ And the Arbitrary Strip Search

[ 298 ] April 3, 2012 |

Glenn:

That there is such vehement condemnation over this strip-search ruling, almost all of which ignores the fact that the Obama administration was fully on board with it and helped to bring it about, is — as this VastLeft cartoon suggests — a microcosm for how and why that has happened.

A few points:

  • I actually don’t really think it’s terribly strange that the commentary on the Supreme Court’s decision didn’t focus on the amicus brief filed by the DOJ (in my case, I didn’t know about it.)   When there’s a bad Supreme Court decision that doesn’t actually involve an administration policy I think focusing on the Court rather than the president is pretty typical.   If you look through my archives for posts about bad Supreme Court decisions during the Bush administration, I think you’ll find that criticisms focused on the Court even in cases where the Bush administration filed an amicus brief on the wrong side, which I think is true of most people who write about the courts.
  • Making criticism of the Obama administration the primary takeaway in this case seems fairly odd, since 1)the causal connection is very weak, and 2)in terms of the most direct impact he had on the case, Obama’s two nominees both dissented.  Had one of the Democratic appointees provided the swing vote then I think the DOJ’s role would be much more central, and obviously had the swing vote come from Sotomayor or Kagan this would be even more true.   But it seems very unlikely that the DOJ brief had much influence on Kennedy.
  • I of course unreservedly condemn the Obama administration for supporting the reprehensible New Jersey policy and deplore even the slightest chance that it had an effect in leading to an awful Supreme Court decision.
  • As is usually the case, I don’t see what Glenn sees in the latest VastLeft strawman burning.  Omitted: any liberal critic of Florence v. County of Burlington who withdrew or moderated their criticism when informed that the Obama administration had supported the state’s position.   Personally, I reiterate my critique, which it’s safe to assume will be true of everybody else.   It also strikes me that a 5-4 Supreme Court decision that breaks along straight party lines is not the ideal basis for Gush-Borism, but to each their own.

Great Moments in Supreme Court Police Statism

[ 22 ] April 3, 2012 |

In addition to the appalling substantive merits, what is particularly striking about yesterday’s a-strip-search-for-jaywalking-is-reasonable case is that the quality of argumentation was shoddy above and beyond the indefensibility of the holding. The justifications offered by Kennedy and Alito were so weak the mere existence of the opinions makes the country stupider.

There’s something about attempts to evade the Fourth Amendment that tends to produce opinions that involve justifications  that consist of nothing but non-sequiturs, implausible speculation, and stunning leaps of illogic. As it happens, today I was teaching Board of Ed v. Earls, which has the same effect on me that the reasoning in Planned Parenthood v. Casey has on Paul.

In Earls, the court extended an already unwise precedent permitting schools to engage in not only warrantless but suspicionless random drug testing of student athletes to apply to the warrantless but suspicionless random drug testing of any student involved in extracurricular activities. As Ginsburg noted in her dissent, this is transparently “perverse” and “capricious,” as it singles out for testing a group less likely to engage in drug use than students as a whole. But the majority opinion doesn’t get really funny until it tries to argue that students participating in extracurriculars don’t necessarily have greater expectations of privacy or face less dangers than student athletes. The whole argument is such arrant nonsense that one imagines Thomas and his clerks guffawing throughout the whole thing; indeed, on the basis of the opinion they should all perhaps all be subject to lifetime random drug testing for their own saftey, because the alternative to my assumption that they wrote the whole thing on acid is too frightening. (Perhaps your high school experience was different than mine, but I don’t recall the debate club or yearbook planning committee to involve ferquent physical dangers and communal undress.) As Ginsburg said:

Notwithstanding nightmarish images of out-of-control flatware, livestock run amok, and colliding tubas disturbing the peace and quiet of Tecumseh, the great majority of students the School District seeks to test in truth are engaged in activities that are not safety sensitive to an unusual degree. There is a difference between imperfect tailoring and no tailoring at all.

In fairness, Thomas is on the record as saying that constitutional rights don’t apply to public school students at all, so at least he’s consistent. What excuse the justices who at least nominally believe that the Bill of Rights still applies to state schools have I can’t tell you. Special brickbats to the embarrassing swing vote cast by Stephen Breyer, whose dissent yesterday should tell you how weak the state’s case was.

Strip Search Sammy Comes Through For Authoritarianism

[ 84 ] April 3, 2012 |

Our liberty-loving Supreme Court has once again decided to use the Federalist Society Constitution, the one with the word “suckers” in it that omits the Fourth Amendment. You can now be subjected to a not merely warrantless but suspicionless strip-search for being guilty of a minor traffic offense.

The opinions bring to mind Scalia, back when he seemed to be willing for enforce the Fourth Amendment once in a while, critiquing another Kennedy assault on the Bill of Rights: “all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true.”   Except that this would be too generous to Kennedy, since the justifications offered by Kennedy, Roberts, and Alito as far as I can tell contain nothing that is relevant.    For example, as Liptak notes, Breyer explains the kind of menaces to society who can now be humilated:

According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

But wait — Kennedy has a response!

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.

Well, first of all, so what? Did McVeigh have a semiautomatic rifle stored in his rectum? Would any there have been any threat to public safety if he couldn’t be strip-searched? But leaving that aside, the strip searches authorized by the Court weren’t done by the side of the road (although we may be headed in that direction soon.) Presumably, McVeigh was detained because after being pulled over for driving without license plates the authorities found that he was the suspect in a mass terrorist killing. So what this has to do with people detained for minor nonviolent offenses I haven’t the slightest idea. As I say at the linked post, the arguments offered by the majority opinions are all pretty much at this level of bare assertion and non-sequitur.

Needless to say, this case is even more infuriating when you consider last week’s oral argument. It should be obvious that the Supreme Court owes much less deference to the arbitrary actions of local officials than it does to legislation passed by the United States Congress, but the conservatives on this Supreme Court get it exactly backwards.

…UPDATE: “the kind of logic that can turn a democracy into a police state.” More from Balko and Digby.

Sometimes A Devastating Defeat Is Just a Devastating Defeat

[ 141 ] March 30, 2012 |

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.

The Slippery Slope Argument Against the ACA: Unserious

[ 52 ] March 30, 2012 |

Akhil Reed Amar is making sense:

I start with the Constitution here. It’s the power to regulate interstate commerce. Is this a regulation? Yes. It’s just a regulation like regulating a well-regulated militia with a mandate. Is this interstate? Yes. And I’ve given you reasons why. Third, is it commercial? Yes, it’s purely about who is paying.

EK: In terms of liberty, I think what Barnett and other opponents of the mandate are arguing is that this is a slippery slope. First you’re saying I have to buy health insurance. Then you’re saying I have to eat broccoli.

ARA: The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? So if you ask me what the limits are, I’d say read McCulloch vs. Maryland. And reread it. And keep reading it till you understand it. The Constitution is a practical document,. it’s designed to work. And the powers are designed to be flexible in order to achieve the aims of the document.

On their economic ignorance, see Krugman.

Legitimacy and the ACA

[ 221 ] March 30, 2012 |

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

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

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

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

The Hidden Libertarianism of the Challenge to the ACA

[ 81 ] March 29, 2012 |

I have some thoughts at CIF about why the challengers to the ACA simultaneously argue that the mandate isn’t a regulation of interstate commerce and is so essential to a concededly constitutionalism regulation of interstate commerce that it can’t be severed:

Why would Clement advance this self-refuting argument? It tells us two things. First of all, there is a hidden libertarian agenda behind the modest-seeming argument that the mandate and only the mandate is unconstitutional. It’s no coincidence that one of the prime movers behind the constitutional challenge to the ACA – the esteemed Georgetown Law professor, Randy Barnett – is a radical libertarian who considers most of the modern regulatory state unconstitutional. The argument against the mandate is, at bottom, a libertarian one – comparable to pre-New Deal arguments that minimum wage laws and federal pensions are unconstitutional. It is necessary to conceal this to have any chance of getting five votes at the court, but the severance argument gives away the show.

There are also political reasons for opponents of the ACA to argue that the mandate cannot be severed from the rest of the statute. American political institutions, with their high number of veto points, very strongly privilege the status quo. Striking down the whole ACA would revert us to the status quo ante, in which the privileged interests favored by Republicans would make major changes to the American healthcare system nearly impossible.

Just striking down the mandate while leaving provisions such as the ban on discrimination based on pre-existing conditions, however, would create a status quo in which insurance companies would be desperate for change because they would be faced with a vicious circle in which healthy people fled the system, leading to ever-higher costs for everyone else. Nobody can predict what kind of fix Congress would create – it would depend on subsequent elections – but the challengers of the ACA could be faced with only a half-win or even a Pyrrhic victory. So, they would prefer that the act be struck down in its entirety.

The argument is really Lochner in disguise, which can also be seen in the recycled Glenn Beck Scalia and Alito favored us with throughout the oral argument.

One more point is that I would be cautious about excessive optimism should the mandate and only the mandate be struck down.   Barring an unusual Democratic landslide or huge transformations in American politics the fix would be far more likely to be a half-assed, weaker, less equitable version of the ACA than single-payer.   But the outcome would almost certainly be better than if the bill was struck down in its entirety.

You Are The Sucker, Forgetting Bush v. Gore Exists Edition

[ 213 ] March 29, 2012 |

Even if the ACA narrowly survives, David Frum is in for a rude awakening:

Even though the Solicitor General reportedly choked today, that doesn’t change the fact that the conservatives on the Court have spent most of their intellectual lives railing against judicial activism.

Well, this is technically true; conservatives on the court (and much more so off the court) do spend a lot of time railing against “judicial activism.” What the conservatives on the Court absolutely don’t do is oppose “judicial activism” in practice. And in this case, Scalia is virtually certain to vote to strike the law down.

One thing that the oral arguments in this case should accomplish is to make clear that when the Academy of the Overrated opens Scalia will get in on the first ballot. The performance of both Scalia and Alito throughout the oral arguments was an embarrassment — a succession of cranky and ignorant right-wing policy pronouncements and irrelevant hypotheticals with no pretense of engaging with the case law. Scalia’s attempt to invent a category of legislation that could be “necessary” but not “proper” — apparently because there might be alternative legislation that would be closer to the policy preferences Scalia got from listening to a third-rate winger talk show — was particularly special. If the Court wants to overrule McCulloch v. Maryland it really should do so explicitly…

UPDATE:  “On Tuesday, [Scalia] pursued the absurd “broccoli” analogy to the point where he sounded like a micro-rated evening-drive talk-show host from a dust-clotted station in southern Oklahoma.”

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