ACA Trooferism: Team Pessimism

I regret to say that Rick Hasen, Hank Greely, and Linda Greenhouse all in some measure share my dark view of what the Supreme Court granting cert in King means.

There is simply no way to describe what the court did last Friday as a neutral act. Now that the justices have blown their own cover, I notice the hint of a slightly defensive tone creeping into the commentary of some of those who have been cheering the prospect of rendering the Affordable Care Act unworkable: that as a statutory case, without major constitutional implications, any problems for ordinary Americans that result from a ruling against the government can be fixed by Congress (where House Republicans have voted 50 times to repeal the entire law) or by the states themselves (36 of which failed to set up their own exchanges, thus requiring the federal government to step in as provided by the law).

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So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Should the Roberts Court use this case to go even further down the road paved by Bush v. Gore and Shelby County, my suggestion is that Ginsburg, Breyer, Sotomayor and Kagan all file separate dissents quoting the relevant language of the Sebelius dissent. Or, perhaps, in addition to separate arguments a joint dissent consisting of nothing but the quotes…