Balkinization: The "legitimacy" of the Supreme Court--or, as an empirical matter, can the Court pretty much do whatever five of its members want?

Comments:

They're particularly not going to be worrying about a backlash for striking down a widely *unpopular* law.

# posted by

Brett : 8:04 PM

If protecting basic equality and privacy rights for the needy among us from sectarian legislation (Roe) is not a reason to be concerned ("obsessed"), why have judicial review? Judicial review is something many countries have adopted. It's not like the presidency and the filibuster on that front.

It is not like only one side is "hurt" by limited government in which the limits in some fashion are defined by the courts. Many think states should deny gays basic rights. Every major tool will be abused. Should we do away with fire because of arson?

Let's say the so-called "mandate" is tossed out but the rest of the law stands (if it is tossed out, i think there is a good chance that will happen, even if it is a bad idea on some level). The appointed advocate for that position made a decent chance that the law isn't a "shell" and since the penalty kicks in over time between '14-16 and insurance companies will be hurt w/o it, who is to say that some alternative (like a "tax" penalty) won't be passed eventually?

BTW, sorry Brett, the public actually likes chunks of this law, so striking down, e.g., denying parents to have their college age students to be on their plans will be you know "unpopular" or contraceptives coverage or protection of pre-existing conditions coverage or ... or ... or ... or ...

# posted by

Joe : 8:07 PM

Sandy:

Are you calling for the elimination of judicial review?

# posted by

Bart DePalma : 8:14 PM

For me this is a moot question -- this Court lost its legitimacy after Bush v. Gore. Decisions like Citizens United are just another nail in that coffin, as will be the health care decision (assuming they strike it down).

That doesn't mean that no Court can ever again be legitimate. It does mean, in my view, that we need to modify the appointment and confirmation process. As others have suggested, a system of 18 year appointments, staggered every two years, would be beneficial.

There are other changes that would probably be helpful too.

# posted by

Mark Field : 8:31 PM

They're particularly not going to be worrying about a backlash for striking down a widely *unpopular* law.

That's a misreading of the polls. Most show a majority either in support of the law or believing it didn't go far enough. I doubt that those in the latter category will be pleased with the Supreme Court overturning it on the grounds that it goes too far.

And Obama supporters are unlikely to be happy with the Court overturning what is widely viewed as his major domestic achievement. I think the issue of "activist judges" on the right is going to be a whole new life.

# posted by

bratschewurst : 9:06 PM

Even FDR, as historians have pointed out, deliberately refrained from going after the Court in the 1936 election and waited until afterward to embark on his politically disastrous Court-packing plan.

If I recall correctly, though, the Court-packing plan was widely credited with convincing the Court to change direction regarding New Deal legislation. That suggests that the Court knew then - although it may not know now - that there can be costs in doing whatever the majority wants.

# posted by

bratschewurst : 9:09 PM

Bart,

re: "Are you calling for the elimination of judicial review?"

Well, of course not. There is obviously a big difference between judicial reveiw and a five member majority following their political beliefs and not the constituion.

Certainly you don't think Gore v. Bush and Citizens United were based on judicial review do you?

# posted by

Terri : 11:05 PM

Any human institution is fallible and will wander far from its optimal path given time. The idea that the legislative and/or executive branches of the government are any less fallible or any less subject to extreme pathological behavior goes against what we know from history, even during the times we retrospectively consider to be the Court's low points. In fact, it is precisely the Court's ability to be the most stable and conscientious of government fixtures that we hold it responsible and reel so when it fails us. Perhaps that explains some of our resistance to reject it as illegitimate even when it is as sick as it appears to be today.

It's important to understand the Supreme Court as the governmental structure that is most stable and most resistant to short-lived whims. The House, Senate and Presidency can completely turn over in two, six and four years, at the whim of the voters, while the Court can theoretically survive an entire generation without a single change, and often does last an entire generation or more without a major substantive shift.

The Court is, if you will, a low-pass filter in the grand process-control loop that is our system of government. This is a critically important aspect of its functionality, and it is for this reason I cringe when I hear calls to shorten its time constant by limiting the term of its judges. The disease of our time, and by extension our Court, is transient. We are experiencing a reflexive fear-based response to a massive cultural/technological shift. To make the Court more responsive to such transients is to weaken our ability to survive them, even if it may occasionally prolong the misery on the waning end. And to assign illegitimacy to an institution simply because a single of its instantiations is dysfunctional, even disturbingly so, is perhaps to have too high an expectation of human behavior.

And BTW, thank you and the other posters here for some of the most thoughtful and insightful legal posts I'm aware of.

# posted by

Unknown : 11:28 PM

I'm not sure how responsive this is, but this is what I think. A decision to strike down ACA would be legally wrong, inasmuch as there's enough there there in the Commerce Clause in order for a decision interpreting it to be wrong or right. However, I strenuously disagree that such a decision would be countermajoritarian. Polling says that 70% of voters think it's unconstitutional, Obama ran against the mandate in the 2008 primary, voters rejected Obama's legislative agenda, of which healthcare was an enormous part, by record-setting margins in 2010. The mandate happened because insurers liked it; there was no popular groundswell for a mandate. Now, striking down guaranteed issue would be a somewhat countermajoritarian result, although a completely valid one under traditional severability analysis; given the peculiar politics of healthcare, probably the most majoritiarian thing the Court could do is invalidate the mandate and nothing else, leaving Congress to bring it back as a tax credit, something more honestly labeled as a tax, or just a direct subsidy to insurers.

# posted by

Asher : 11:32 PM

I do think that striking down the ACA (especially in its entirety) would cause the Court to lose a great deal of legitimacy among Democrats and liberals.

This Court's previous unpopular decisions had at least a fig-leaf of justification. Bush v. Gore could be (weakly) justified as a response to an unusual and unprecedented emergency situation, and Citizens United, while it was and is terrible policy, could plausibly be fit into the Court's existing First Amendment jurisprudence - in other words, it could be considered a normal exercise of "high politics" by the Court. But to strike down the ACA would be to defecate all over existing precedent (including this Court's own recent precedent, such as Raich), and to do so for clearly partisan political aims - it would be "low politics" in the rawest and most unadulterated sense. Moreover, it would eliminate President Obama's signature domestic policy achievement. This kind of thing from any Court is quite rare; most laws struck down by the Court are marginal enactments which were done for purposes of pandering, not serious attempts to address longstanding public policy issues. It's one thing to strike down an Internet censorship bill as a violation of the First Amendment, quite another to declare by judicial fiat that millions of Americans must remain without health insurance.

There are only a few previous cases I can think of where the Court voided hard-fought signature legislative achievements. In the 20th century, only FDR had to deal with a hostile Court hell-bent on denying him victory at any cost. It is this, not temperament, that led FDR to try to pack the Court. It's naive to think that the Court can declare all-but-open war on the Democratic Party and the Party will not fight back.

# posted by

Josh G. : 11:47 PM

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# posted by

Jon : 12:07 AM

This comment has been removed by the author.

# posted by

Joe : 12:15 AM

I'm not sure looking at polls is the correct approach. The issue of the legitimacy of the court goes beyond that.

If the decision (whatever it is) causes one political party to believe that the Court is using the Constitution to reject that party's broad ideology, it won't just be the court that loses legitimacy. It will be the concept of judicial review.

This may not happen right away (and of course it may not happen at all). But looking back at history, that is exactly what happened the last time the court attempted to assert that the Constitution requires policies that match the one of the predominant ideologies in the country. If one side thinks the game is rigged against them, their entire philosophy is going to shift over time. If history is any guide, legitimacy from only one side is not a stable equilibrium. Such periods have presaged massive political and jurisprudential shifts that lasted decades (and to a certain extent through the present).

As the four horsemen were replaced, much of their jurisprudence in various areas (and more generally the previous few decades of similar jurisprudence) became radioactive. Much of it remains radioactive to this day. But beyond that, the justices appointed at the time to replace the horsemen were far more skeptical of striking down an act of Congress (as a general matter) than they likely would have been otherwise -- even beyond the sphere of "liberty of contract."

It took many years and decades for the legitimacy of the court and judicial review (at least on one side) to gradually get even close to the point where it once was.

I don't know if the decision produced by the court will have these kinds of effects. But if they rule as their oral arguments suggested they might (throwing out all 2700 pages, rejecting Medicaid expansions since 1965, making up new magic-words tests and novel theories to do so, etc), the conservatives might one day (probably later on) regret their decision. This is particularly true for libertarians, who rely so much on judicial review. In some ways, they never recovered from their last overreach almost a century ago.

# posted by

Jon : 12:17 AM

I want to make a comment on how the very language used here to describe the court - 'overreach' - is loaded and needs to be tempered. While I believe it is good policy to allow the federal government to regulate healthcare, and think that there is an anchor in the constitution we can tie that too, if the Court strikes it down - well that's because even though the democrats won the short game to get the ACA passed, the conservatives have run the long game over the past 30+ years and that gives them the upper hand.

I think the question posed in this post is - what does it take to really reject the Court as a legitimate branch? and i think the answer is - well, look too the streets! You can't vote them out and I don't think how people answer a question you ask them really gives you an indication of how they REALLY feel, just what they want to say to some dude who just called up and asked them a question (or over the internet, i'm not sure how they are running that game these days come to think of it...). The only time LEGITIMACY is ever questioned is at the point of arms. So, we will know the Court's legitimacy is being questioned when they are being dragged through the streets. To get there, the President would have to be willing to watch them burn and Congress would have to be willing to do nothing about it. Something tells me we are a long long long way from that....

So, to answer your question - Yes, the Court can pretty much do whatever five of its members want. BUT, that's not so big a deal. After all, as Madison said, Thy don't have the sword, and they don't have the purse. They pretty much can be big grumps - but ehhh, isn't that wat a council of elders is supposed to be?

# posted by

Daniel Hinkle : 12:20 AM

Reimposing Lochner--and any way the Court strikes down the ACA, assuming it does so, will have that effect no matter how much they claim otherwise--would be a revolutionary act that holds the very concept of the modern state to be unconstitutional. The government literally would not be able to function under any kind of legally consistent regime that abides by the striking of the ACA.

So yes, striking down the ACA would deprive the Court of any and all legitimacy because otherwise we deprive ourself of a nation.

# posted by

R. Johnston : 12:26 AM

Before finding a case of full-blown illegitimacy, I'll carefully read the opinion(s) declaring the mandate unconstitutional and establishing the contours of severability. The arguments advanced will need to be vastly superior to those advanced in the challengers' briefs. And, OH WOW, if the Medicaid expansion is deemed unconstitutional, I'll jump to a partial verdict of "illegitimate because insane".

My thinking has been both more completely and no doubt better expressed by Professor Amar piece in Slate today. See http://slate.me/H0UMIi.

A former student of Amar's has already asked, “Just how many presidential elections are five conservative justices allowed to undo?” I'm willing to give Justice Roberts or Justice Kennedy a chance to write an opinion on the mandate which does not leave me answering, "All the ones won by Democrats".

# posted by

Ratman : 1:33 AM

I guess I am in the category that would see it as a blip and resign myself to winning more elections, etc. This is how history has always worked. People with various theories of governance gain or lose power. I'm a strong supporter of the post-New Deal consensus, but it's not like the Court woke up one day in the 1930s with an epiphany about the right way to read the Constitution. It was a jurisprudential shift but also a political shift, and maybe the politics have been running in the other direction of late. History marches on.

# posted by

Steve M : 1:34 AM

The public is truly informed about only a very small number of purely social issues, like gay marriage, interracial marriage, and abortion. And for these explosive social issues, the Court must be very careful about making a countermajoritarian ruling or it could degrade its legitimacy (example: surely no modern ruling did worse damage to the court's reputation than Roe v. Wade). But for issues that require even the smallest degree of complexity (like the electoral rules in Bush v. Gore) let alone high complexity (like health care and campaign spending limits) there can be no public brush-back to a countermajoritarian ruling because in these instances THERE IS NO SUCH THING AS A COUNTERMAJORITARIAN RULING - the public, quite simply, has no meaningful opinion on the issue one way or the other. A poll may show that x percent of Americans like or dislike Obamacare, but the polls also make it clear that almost nobody has any clue what Obamacare really is, or what constitutional issue is at stake, or even really what the Supreme Court is or does. And so if the Sup. Ct. says a law you don’t understand is unconstitutional for reasons you never heard of, how can you get mad? You can’t. (Yes, I know that Republicans kept up a heated attack on Obamacare in 2010 even though they were ignorant about the law back then, but in that instance they were attacking Obama the person, not the legislation, and hating Obama is something they very much do understand). So, in sum: as long as gays, guns, and abortions aren't at stake, I think the Court can do whatever it wants (and this is a good thing: the problem, after all, is not that judge-made law is bad – judge-made law is the best and most efficient kind - the problem is that conservative-made law is bad).

PS One more point – the fact that Supreme Court arguments on the constitutionality of a given law always come years after the law is passed, and then the decision doesn’t come for months after that, further reduces the potential for public clamor about a “countermajoritarian” ruling – we simply don’t have the energy to care for that long about anything that isn’t related to .

# posted by

steve : 1:58 AM

Andrew, you may be right about the public.

But I really believe that the more relevant effect on our society comes from the people closest to the political and legal sphere -- particularly on the losing side.

Roe vs. Wade was decided 7-2 (including conservatives in the majority). Yet the losing side reacted in ways that quite possibly allow the bill to be struck down today. Conservatives emphasized and focused on the judicial branch much more than they had in the past. Originalism and other conservative legal philosophies gained steam. Anger over that decision still resonates 40 years later.

In this case, we have a main plank (if not the main plank) of the Democratic party platform since 1948. To a fair number of liberals, the issue is nothing less than a basic human right. (Apologies to libertarians who are offended by such a statement.) After so many presidencies and scuttled attempts, and decades of intellectual work building the basis for a bill that could pass (with an assist from the Heritage foundation and Romney, for showing the country how it can work), 60 Senate Democrats agreed with 216 House Democrats and 1 President on a comprehensive scheme to increase coverage and lower costs.

If the bill is struck down, the long term reaction will at the very least rival Roe vs. Wade. As Ratman and Akhil Amar alluded to, liberals and liberal legal scholars will not believe that the number of reversed elections by the 5 conservatives will stop at 2. And they will not believe that this stops at healthcare. As in the 1930s (and even before), they will start to believe that the judicial branch could turn into a mortal threat to progressive policy in general. This will profoundly affect their attitude on judicial power and judicial review, just as it did for the generation of the justices appointed in the late 1930s and 40s. And the judiciary may gradually change to reflect these views over time.

The result of this will not be good for the judicial branch or the country. But this is exactly what the conservatives are inviting, judging by their questions on Tuesday and Wednesday. We'll see if they step back.

# posted by

Jon : 3:03 AM

Sandy makes the point I was alluding to in a response to one of Gerard's posts a while back: the idea of limited political capital makes no sense if there is no check to your majority. Power in such a position is ever generative, and there is no reason to make concessions or compromises when you know you're going to get your way.

Rhetoric has been replaced with noise and our speakers go to eleven. It's corrupted public discourse and it's effectively spoiled the high court.

Brett is right: the healthcare act is wildly unpopular. Odd then that the goals it embodies are wildly popular in recent polls.

http://www.reuters.com/article/2012/03/28/us-usa-healthcare-poll-idUSBRE82R1FA20120328

# posted by

PMS_CC : 4:05 AM

"I do think that striking down the ACA (especially in its entirety) would cause the Court to lose a great deal of legitimacy among Democrats and liberals."

Precisely. The question is whether the majority on the Court consider becoming a rubber stamp for the Democratic party to be a price worth paying for guaranteeing their legitimacy in the eyes of this particular minority of the population. I think they've already decided it's too high a price.

# posted by

Brett : 6:50 AM

UMPIRES STRIKE AGAIN?

While we may be post-Bush v. Gore (2000), Citizens United (2010) we are not. Consider the Court's "rumored" meeting today for a tentative vote on ACA through the eyes of CJ Roberts' view of a Justice as Umpire. The Court has listened to and participated in 6 hours of orals earlier this week. But it isn't clear that the Justices have actually read the entire 2,700 pages of ACA, or even significant portions, if Justice Scalia's oral comments serve as a guide. Based on my calculation on the back of an envelope, briefs were filed totaling about 5,000 pages. It isn't even clear if the Justices' clerks have actually read the ACA and all of the briefs.

In considering Roberts' umpire approach, do we look at the orals as the "play" the umpires are to consider? Or was the "play" earlier following the appeals and the filing of briefs, which would of course have been much earlier than this week's orals?

So the "umpires" will huddle today, perhaps at least armed with transcripts of orals, to decide upon a direction for an eventual decision. But the actual decision process may take until sometime in June, perhaps as many as 6 weeks from today. Will the initial direction change? Or will the initial direction be fixed, followed by efforts to somehow make everything fit together, including addressing some of the dissenting umpires?

Even post-Bush v. Gore, and especially with Citizens United, surely politics will inevitably be part of the direction to be decided upon today. Perhaps outcomes of the eventual decision may be considered. One outcome other than the health needs of many millions (covered currently or soon to be covered by ACA) relates to the upcoming presidential election in which America's first African-American President is seeking reelection; of course the Justices are aware of this election. After all, there is a potential for a change in the make-up of the Justices, depending upon the outcome of this election.

Finely Peter Dunne's barkeep Mr. Dooley observed about 100 years ago that the Court follows the "illiction returns." If Mr. Dooley were around to pour me a limed Bombay on the rocks today, he might suggest that with ACA the Court just might be "lookin' to cookin' the illiction returns."

So for many weeks from today, the draft opinions for and against ACA will flow between the Justices and their staffs, with tight security, of course, so there will be no leaking of information prior to the anticipated decision in June. There can be expected much fine tuning of such opinions. But can leaks be prevented? I think not, especially via pillow talk - or even body language of Justices outside of the Courthouse in social and public appearances.

Keep in mind that judicial review is not explicitly referenced in Article III. But compare today's judicial review by Justices as umpires with judicial review in the days of CJ Marshall. Marshall's Court had less precedents than today's Court, which just might ignore many precedents as the Justices serve as umpires.

The baseball season has just begun. Baseball's umpires make their decisions quickly, right or wrong, sometimes corrected by instant review, but the game goes on, usually settled in under 3 hours. But the Court's umpires do not decide openly so quickly, as its "game" goes on and on. The outcomes of baseball's quick decisions are not as serious as the potential outcomes of the Court's eventual decision on ACA. So at least for the next 6 weeks or so, we can enjoy the new baseball season as we await the Court's "UMPIRES STRIKE AGAIN!"

# posted by

Shag from Brookline : 8:12 AM

Brett, you are missing something pretty important. You act like a Supreme Court that only one party thinks is legitimate is a sustainable state of affairs.

History does not bear that out. There are at least two other times in history where the Supreme Court essentially overruled an entire political party's ideology. Both times, the court and our politics changed profoundly in the opposite direction.

Furthermore, reality does not bear that out. The only currency the Supreme Court has is credibility. In terms of raw power, the appellate jurisdiction of the Supreme Court exists entirely at the pleasure of Congress. Congress has the raw ability to apply Article 3 Section 2 on every bill it passes. The reason they don't is because we have had an embedded norm for over two centuries of deep respect for the role of an independent judiciary.

No one single decision will cause that respect to vanish overnight. But if a pattern of decisions over time causes a political party to believe that the game is rigged, that respect will gradually diminish. This outcome would be a bad thing for our country, but is precisely what the conservatives seem to be inviting. We trust unelected judges to overrule the political process because we believe the court generally gives both sides a fair shake, and the game is not rigged. But such trust cannot sustainably be limited to those on one side. In a system based on longstanding norms, that will not work.

# posted by

Jon : 8:19 AM

as an observer and non-lawyer,

First, i do not agree with your premise. If the court grabs power, why should congress and the president not grab it back. we can use words like "legitimacy" but I think that its fair to question whether any perceived power grab is legitimate. thats why we have checks and balances.

Second, whether there is a backlash and the decision is viewed as legitimate will (IMO) entirely depend on the reasoning. its been conceded that congress can regulate the point of sale for healthcare, and could have instituted a tax and tax credit, so how they thread the needle on this one is going to affect whether this is viewed as pure power-grab partisan judicial activism giving the republicans a do-over.

I think that they absolutely should be worried about a backlash, escpecially if they strike the Medicare thing which is preposterous. I can definitely see Democrats running against the court and some more liberal ones calling for impeachment (the fact that its impossible wont matter, its politics).

And back to my first point, i dont think it would be unfair or inappropriate at all to question the power of 5 unelected individuals. whether its good politics is a different question.

# posted by

dwb : 9:44 AM

BD: Are you calling for the elimination of judicial review?"

Terri: Well, of course not. There is obviously a big difference between judicial reveiw and a five member majority following their political beliefs and not the constituion.

Certainly you don't think Gore v. Bush and Citizens United were based on judicial review do you?

In other words, you believe in judicial review so long as it arrives at the results you desire.

I share Tom Jefferson's concern that judicial review will create an unaccountable judicial oligarchy. On the other hand, what is the alternative to judicial review?

I have previously suggested a proposed amendment where judicial review is expressly granted, but is restricted to the original meaning of the text and, in cases where the original meaning is iuncertaing, the court is to rule against any government abridgment of individual liberty.

In short, we keep judicial review, but eliminate the court's nasty habit of engaging in de facto common law creation.

# posted by

Bart DePalma : 9:51 AM

"You act like a Supreme Court that only one party thinks is legitimate is a sustainable state of affairs."

I think that one party only thinking a Supreme court which carries it's water for it is legitimate isn't sustainable, but despair of the Democratic party ever seeing reason on this score.

Seriously, the problem of today with respect to judicial legitimacy, is that the two parties' conceptions of what's legitimate are disjoint. There's no way to be seen as legitimate by both, you've got to pick who you disappoint.

# posted by

Brett : 10:23 AM

"could have instituted a tax and tax credit"

Kennedy alluded to something of this sort in that some flexibility should be given to Congress if the issue is only means. It is hard for some to see, among all the talk about the alleged gigantic step (and threat to liberty) at issue, why it should turn on magic words.

In effect, the law already has a "tax" and "tax credit" in that those who make a certain amount of money (income tax) and do certain things (excise tax) are taxed, while those who make a certain amount of money or do something else are not. No magic words were used, perhaps, but the tax system is used to collect and it surely LOOKS like a tax.

There is even a reasonable if debatable argument that an "anti-tax" injunction act kicks in. Paul Clement took the risible position that we can just let Congress re-pass such a law. This is ridiculous given political reality. It was so risible it even was played as a clip on Jon Stewart.

I am with Steve honestly and there is a way to limit the damage here but we need to be honest about what is going on here, including misinformed polls and justices who really should leave the economics of insurance to the experts (talking to you Alito).

Anyway, the issue is not that they are a "rubber stamp," which is belied repeatedly, but uphold long held precedent as well as a program that once upon a time was supported by the current frontrunner of the Republican Party for President.

Like certain justices, calling what Charles Fried, the S.G. of Ronald Reagan thinks an obvious case a "rubber stamp" move for Dems is not a convincing position.

# posted by

Joe : 10:27 AM

Judicial review of the Constitution is an absurd kabuki dance. The court is supposed to interpret an unchanging 18th Century document that, of course, has no direct bearing on the issues presented, and in almost every case, reasonable people could disagree on what the "constitution" (not just the document, but prior caselaw) permits or requires. What is "constitutional" depends on the opinion of 5 people who happened to have been on the court at the time a law was challenged. If the composition were different, the "constitution" would be different. So it's hard to take judicial review seriously. The court should recognize this and approach its job with a little more humility.

Also, no one should have a lifetime term. We should not be ruled by 5 Kings. If we are going to have judicial review, the term should be at most 10 years.

# posted by

Adam : 11:41 AM

"Seriously, the problem of today with respect to judicial legitimacy, is that the two parties' conceptions of what's legitimate are disjoint. There's no way to be seen as legitimate by both, you've got to pick who you disappoint."

First of all, there are many Conservative scholars/judges who disagree with you here (such as Sutton, Silberman, Wilkinson, and Fried). There are no liberal scholars or judges that believe the law is unconstitutional.

Second of all, there is a fundamental difference between a court striking down an act of the political process, and upholding such an act. A court that upholds an act still allows its opponents to convince their fellow citizens to elect representatives to repeal the law. (Outrage at a court for upholding a law is somewhat mitigated by the fact that they can't convince the people to agree with them.) I don't believe for a minute that a non-negligable number of Republicans will believe the SCOTUS is illegitimate if it upholds Obamacare.

On the other hand, a court that strikes down an act is overriding the political process. If decisions to strike down the main part of a political party's platform are to be seen as legitimate, they better use reasoning that is well known and generally accepted (since unlike in the case of upholding a law, there is no correcting the court if they get it wrong).

The way to be seen as legitimate by both is to strike down fewer laws. My argument applies equally to the Ryan Plan as it does to Obamacare (even if the court had 5 liberals).

The problem with your argument here is that to the extent the court would be carrying water for any party, it wouldn't be the Democratic party. To the extent the correct ruling is obvious, it is obvious in the direction of the side that has well respected members of both sides -- not on the side that isn't even unified.

# posted by

Jon : 11:42 AM

I understood Prof. Levinson to be asking for a personal reaction. If I were to predict the general reaction of the country to a decision, I'd say this:

Nobody even knows yet what the opinion will say, so the whole discussion strikes me as premature. That aside, let's consider it historically.

The previous opinions which arguably damaged the Court were Dred Scott, Pollock, Schechter Poultry (used as a stand in for the anti-New Deal decisions generally), Brown, and Roe. Three of these dealt with social issues of great public importance, about which the public is more sensitive than it is on more technical issues. The other two were seen as class warfare under emergency conditions (both issued during a major Depression).

Absent some truly remarkable language in the ACA opinion, it's hard to see how the result could have an equivalent impact. This is particularly true if Roberts or Kennedy, as seems overwhelmingly likely, writes the opinion. Both write opinions in which they give lip service to precedent while undermining it. This makes it hard for non-specialists to understand the significance of the opinion.

Then there's the issue of party reaction. In all of the previous cases there existed an emotional rallying point for one party, which could organize to block or override the decision. I don't see that the ACA has that resonance for the Democratic Party today. In any case, it took years for the opposition to succeed and the Dems in Congress today aren't organized to seek long term goals, nor are they tempermentally suited to Constitutional hardball. If they have any reaction, it will be to wait to see if they can change the composition of the Court. That may or may not happen, and of course the political circumstances necessary to pass a new law may not coincide with that.

In short, I expect the issue to pass over without much public outcry. The legal profession is more likely to lose respect for the Court, but that's been brewing since Bush v. Gore and it hasn't changed anything. A new opinion may add to that, but not much.

# posted by

Mark Field : 12:18 PM

Jon said...

"Seriously, the problem of today with respect to judicial legitimacy, is that the two parties' conceptions of what's legitimate are disjoint. There's no way to be seen as legitimate by both, you've got to pick who you disappoint."

First of all, there are many Conservative scholars/judges who disagree with you here (such as Sutton, Silberman, Wilkinson, and Fried). There are no liberal scholars or judges that believe the law is unconstitutional.

Almost no left scholar or judge recognizes that the Constitution limits Congress to expressly enumerated powers. Instead, as the string of threads here demonstrates, enormous efforts is expended generating strained theories about why provisions like the commerce clause mean something more than they say. This point of view ignoring the text of the Constitution is widely rejected by the people.

Second of all, there is a fundamental difference between a court striking down an act of the political process, and upholding such an act. A court that upholds an act still allows its opponents to convince their fellow citizens to elect representatives to repeal the law.

Refusing to enforce the Constitution's limits on government power on the theory that the same government might restrain itself in the future undermines the entire idea of constitutionally limited government and also is not well received by the people.

# posted by

Bart DePalma : 12:45 PM

Here's a Jefferson quote that causes orginalists to squirm:

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Originalists will respond in knee-jerk reaction: "Then abide by Article V." But how well has that worked with its build in difficulties, especially after the Civil War Amendments? Perhaps we should invest in physical stocks and bonds that served to punish miscreants back when instead of financial stocks and bonds of today.

Jefferson's quotes can be cherry-picked to suit one's arguments.

# posted by

Shag from Brookline : 1:26 PM

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# posted by

Shag from Brookline : 1:26 PM

Shag:

We agree somewhat for once.

The hurdles in Art V need to be lowered to a 3/5 super majority and a national referendum process should be added with a 3/5 supermajority vote requirement.

# posted by

Bart DePalma : 1:51 PM

On the Jefferson point, I was looking at a collection co-edited by Sandy Levinson on the Louisiana Purchase etc. and it underlines the complexity of his position as well as the importance of looking past the courts to find what the Constitution means. On that front, I like the quote by James Madison, to the degree quotes do much:

"Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation"

One case won't be the end all here.

# posted by

Joe : 1:52 PM

No decision of the Supreme Court that I can think of is going to change my perception of the institution itself. It will only affect my opinion of the humans who made that decision, and those humans will eventually be serially replaced.

Perhaps if the Court suddenly expanded its docket by a factor of 10 and became incredibly activist in service of a narrow segment of society at the expense of the masses, I might start to worry. That just doesn't seem terribly likely to me.

# posted by

Ron2 : 2:02 PM

I don't think there is a Jefferson quote that directly addresses originalism but reading between the lines of the quote I noted above might suggest that originalism (even the new, new originalism variation) might constitute, for Jefferson, an ill-fitting constitutional coat.

# posted by

Shag from Brookline : 3:33 PM

Originalism is an ill fitting old coat. Living constitutionalism is an Emperor's new coat. Actually amending the Constitution is the only way to get a new coat that isn't imaginary.

Getting pretty chilly in Washington these days...

# posted by

Brett : 4:50 PM

Madison referenced accepting what the courts, the public etc. deemed the proper understanding of the Constitution, even if it was contra to what the "father of the Constitution" originally thought it meant. What is "imaginary" is that "living constitutionalism" aka "common law" is imaginary.

Amending the Constitution happened a number of times. It is useful and changing the Senate as Prof. Levinson suggests would be one amendment I would support. But, amending the Constitution so it can match Brett's curious understanding of it is not necessary.

# posted by

Joe : 5:15 PM

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# posted by

Mark Field : 6:18 PM

It's particularly weird to deny the force of Madison's point when one of the principal conservative con law professors today, Keith Whittington, makes Madison's argument. See here.

# posted by

Mark Field : 6:19 PM

Here is a hypothetical.

First, imagine that 10 years earlier, Bush v. Gore was actually Gore v. Bush, with identical opinions (except the identity of both the candidates and the 5 justices in the majority are reversed).

Now, back to the present, imagine that sometime in June, Greece collapses and the world economy collapses. Republicans win the Presidency, a 40 seat majority in the House, and 60 seats in the Senate.

After a long year, the Republican party finally passes a bill rolling back the social safety net (that they have been working for, in some way or another, for decades). The same bill lowers tax rates for all, with the anticipation that tax credits/deductions/loopholes will be closed later to make up the difference. Sure enough, six months later the difference is made up by repealing credits and deductions.

Towards the end of passage of the first bill, some liberal Constitutional scholars brought up the idea that a certain part of the bill is unconstitutional, because it does not provide a minimum benefit to the poor "implicit in the Constitution's conception of liberty." (Assume that this only affects one segment of the bill; other parts of the bill are not Constitutionally controversial under this argument.) When Paul Ryan is asked about this particular Constitutional objection, he says, "Are you serious?"

Assume that the substance of the bill is extraordinarily unpopular, and that a sense was developed by the Democrats that it passed under procedurally questionable tactics. Polls indicate that large majorities disapprove of the bill, and also believe it to be unconstitutional. In the midterm elections, Republicans lose 60 seats in the House and 7 seats in the Senate.

The day it is passed, liberal scholars file a Constitutional challenge. A few liberal judges rule in favor of it (distinguishing it from past precedent challengers believe is relevant), but they are mostly reversed by the circuit courts. Two well respected liberal circuit judges are part of the group of judges that throw out the challenges. Only one circuit panel rules in favor of them. Overall, conservative judges and scholars are united in their view that the challenge is not valid. Liberal judges and scholars tilt toward the challenge being valid, though they are somewhat split (as described above).

The Supreme Court allocates 5.5 hours of oral argument. During the oral argument on the merits, almost no time is spent on what government believes to be recent on-point precedent. Instead, the arguments are run like a law school seminar, with endless implausible hypotheticals and discussions about a liberal conception of "individual liberty." The next day, during the severabilty argument, the liberal justices are apprehensive about severing the hypothetical unconstitutional provision. The median justice argues that doing so would be leaving in place a shall of a law that Congress would never have passed. The other liberal justices seem to agree. The government argues that this would violate two centuries of precedent on severability, but their argument does not appear to be getting anywhere.

Conservatives watching the oral argument are shocked. They were already suspicious of the court, but they never thought anything like this would ever happen.

The provision is ruled unconstitutional by a 5-4 vote, and the bill is struck down in its entirety (with the same 5-4 split). Of course, the closing of tax loopholes and the repeal of credits was in a separate bill. So those remain on the books, even though the rate reduction in this bill no longer does. The net result is that the social safety net is restored to the previous status quo, along with tax rates (but not tax deductions/credits in the separate bill).

What do you think would happen, in terms of the court's legitimacy? What would the long term effects be? Who would have more of an effect on the perceived legitimacy of the court (and of judicial review in general) -- the "losers" or the "winners?"

# posted by

Jon : 1:44 AM

Well, I don't think it would have much net effect on the perception of legitimacy. Liberal and conservative views of what it is legitimate for judges to do really are (Alright, almost) disjoint: Reading the Constitution as enacting "A Theory of Justice" might be the only way to get liberals to admit the Court is legitimate, but it guarantees conservatives won't see it that way.

That doesn't make the situation entirely symmetric, of course, because the Constitution actually does have significant semantic content. Content which isn't neutral on many of these questions.

The Court may piss off dedicated liberals by not ruling their way, much as it pisses off dedicated conservatives in other situations, but there are people at the margin who just want the Court to be honest.

# posted by

Brett : 8:04 AM

Jon- I had thought about writing the almost the exact same hypothetical.

The only quibble is that I would not specify the type of legal challenge to be brought since this will only invite irrelevant argument over the constitutional merits. I guarantee that conservatives will say that your hypothetical challenge cannot be deemed a fair equivalent to the challenge to Obamacare, and I wouldn’t be surprised if liberals argued that your hypothetical would be a more plausible constitutional theory than the one actually before the Court.

To avoid that problem, I would ask each person to assume, for the purposes of this exercise, that the hypothetical challenge is equally as strong as the Obamacare challenge, however strong they think that to be.

With that caveat, I would be very interested in the responses. My own reaction is that the Court’s legitimacy will be most enhanced (or perhaps least damaged) by a decision that is clearly aimed at forcing the political branches to rework the legislation in a way that can achieve broad popular consent, as opposed to a decision which appears to simply impose the Court’s own views on what the legislation ought to be.

# posted by

mls : 8:13 AM

Perhaps Brett can identify his:

" ... people at the margin who just want the Court to be honest."

as distinguished from dedicated liberals and dedicated conservatives? Do they include simpletonian libertarians? Did people at the margin believe the Court was honest with Brown v. Board of Education (9-zip), Roe v. Wade (7-2), Bush v. Gore (5-4), Citizens United (5-4)? Perhaps we need a margin call.

Keep in mind that Article III and the rest of the Constitution as amended to date has not only no specific provision for judicial review, it has no specific provision for judicial supremacy over the Executive and Legislative branches of the federal government. Perhaps Brett can point us towards semantic content in the Constitution which isn't neutral on judicial review and judicial supremacy.

# posted by

Shag from Brookline : 8:28 AM

mls' reaction to a hypo:

" ... that the Court’s legitimacy will be most enhanced (or perhaps least damaged) by a decision that is clearly aimed at forcing the political branches to rework the legislation in a way that can achieve broad popular consent, as opposed to a decision which appears to simply impose the Court’s own views on what the legislation ought to be."

raises the question of achieving whose broad popular consent, that of the political branches or of the public? ACA was enacted by the Congress and the President. Is mls suggesting that such enactment was not bi-partison and thus lacked broad popular consent by the elective branches? If so, imagine what that might lead to if bi-partisonship continues to be lacking, with the Court having the power to so force the political branches to rework challenged legislation to achieve broad popular consent.

# posted by

Shag from Brookline : 8:49 AM

"since this will only invite irrelevant argument over the constitutional merits."

How can the constitutional merits be irrelevant to the legitimacy of a ruling?

I've been amazed by the extent to which otherwise seemingly rational people are engaging in what I can only call hissy fits, over the prospect of losing an argument before the Supreme court.

It's not enough to think you're right, anybody who disagrees with you has to be insane, a rabid partisan. And losing the case will cause the Supreme court to become illegitimate as an institution.

This from living constitutionalists, who routinely argue that the Constitution is a morass of indeterminacy, that the Court is entitled to rule just about any way they want? Only so long as it's the way YOU want, I guess.

# posted by

Brett : 9:12 AM

This from Brett:

"I've been amazed by the extent to which otherwise seemingly rational people are engaging in what I can only call hissy fits, over the prospect of losing an argument before the Supreme court."

who wasn't among us when Wick-burn [Wickard v. Filburn for non-regular visitors to Balkinization] was pronounced by the Court, but continues to have post-Wick-burn hissy fits over a long lost argument before the Court.

# posted by

Shag from Brookline : 9:20 AM

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# posted by

Jon : 10:22 AM

mls, you bring up a good point. I thought about that when constructing my hypothetical. The reason I put it in, was because the likely conservative reaction to that Constitutional argument would be something along the lines of "but that's nuts."

Of course, considering the context, that is precisely the liberal reaction to the argument that it looks like the court might adopt. Which is why it introduces some symmetry into the hypothetical.

Yes, people can argue over which ruling is more nutty. But if I just said "equally valid to the challenge to Obamacare," conservatives would dismiss the hypothetical as being impossible. They don't believe that there could be such a valid challenge to a bill that reduces the size of government.

That's precisely why I asked them to assume that the justices would use their power to approve of an argument that conservatives found to be nuts. Implicit in the hypothetical is the possibility (if not probability) that the court action would cause conservatives to lose their only hope of limiting government to that extent for many years (if not a decade or two), after finally getting the requisite majorities in Congress to do what they have wanted to do for decades. My hope was to understand why they thought such a judicial outcome would be wrong.

Is it solely because they have a disagreement with the constitutional analysis of the 5 hypothetical liberal justices? Or do they recoil at the notion that much of a political party's agenda for the country (going back decades) could be erased on the basis of a theory that only one of the two parties believed was non-crazy?

And more specifically, how do they believe such a decision would affect the legitimacy of the court (if at all)? What dynamics do they think would cause that legitimacy to change? I'm really trying to understand where they are coming from, when they say that a decision striking down the PPACA will not affect the court's legitimacy.

# posted by

Jon : 10:25 AM

Jon:

The only relevant facts in your hypo for court legitimacy are Gore v. Bush and the ruling creating a fictional right to a welfare state. The politics should be irrelevant.

This constitutionalist who happens to be a Repblican would have no problem with a Court who found the GOP manufacturing votes using no single standard in four deep red panhandle counties to be a violation of equal protection.

More to the point, the comparison between a liberal court making up a right to a welfare state and the current Court attempting to enforce what is left of the actual commerce clause is instructive. Rewriting the Constitution should discredit a Court, while enforcing the Constitution according to their sworn oaths should not.

The fact that the left is shocked that the Court would actually enforce the Commerce Clause after roughly 75 years of gutting and ignoring it says more about the eft than this Court.

# posted by

Bart DePalma : 10:30 AM

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# posted by

Jon : 11:04 AM

Bart, the issue was not about 4 counties, and it wasn't even about a single standard. The issue was to allow the statewide count in all counties to continue (with an instruction to adopt a single standard, if they really believed the EPC required it), or to freeze it in place after knowing the frozen count in advance (with absolutely no basis to not give more time).

But more importantly, could you put to one side your view that X or Y or Z in my hypothetical is irrelevant, just for the sake of argument? My entire point is that both sides have different views over what "enforcing the constitution" is, and what "rewriting the constitution" is. I'm asking you to assume that the liberal justices claim they are enforcing the constitution, AND that the entire Republican party believes that they were actually rewriting the constitution. You may very well believe that such a decision would be to rewrite the Constitution. If so, that is excellent, because that is the entire point of the hypothetical. The hypothetical would be pointless if you didn't find the liberal justices' Constitutional holding to be crazy.

Given that hypothetical in its entirety, what do you think would happen to the legitimacy of the court? And why do you think what you predict might happen would happen?

# posted by

Jon : 11:05 AM

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# posted by

Joe : 11:11 AM

Since the argument for unconstitutionality of "Obamacare" (whatever that is) is weak, Jon's hypo will do, since it too is weak. Even in the heat of the Warren Court, such a substantive claim of benefits had little chance.

Gore v. Bush is interesting too, since like the PPACA, that too would have some crossover appeal. The PPACA's constitutionality has Fried et. al. on its side. There, it would have been leaving things in the hands of state courts etc.

I personally don't think the courts job is to determine what "can achieve broad popular consent," whatever that even means. If getting 60 votes in the Senate, passage in the House with Blue Dog support and the President signing it, using a Republican measure he originally opposed on policy grounds is not enough, what is? Maybe, it can include a tutorial so the public can know what is in the law, but then, they appear not to understand it very well either from various questions posed earlier in the week.

The alternative, I realize, was imposing what they think the legislation should be. This is not what would happen. It would be what they think the "law" as in the Constitution requires. This would leave open various policy possibilities.

This is their job. Some don't like it, just like some want juries to decide the facts and the law. As to legitimacy, even on that level, I rather not have them try to do what they think is good for us in that respect.

The most legitimate thing for them to do is to rule on the law, do so in an aboveboard way [Bush v. Gore in some ways did not seem to be that] & if they DO overturn popular will, do so in a narrow fashion. That is, as much as possible, allow "popular consent," such as Sotomayor's suggestion that if they overturn the minimum insurance req., let Congress decide what to do, don't just overturn the whole thing.

As to "honesty," usually the best policy. Again, "honestly" I think Madison supports what Brett thinks is an "imaginary" thing.

# posted by

Joe : 11:19 AM

Chris Hayes had a broad discussion on the PPACA, health care, the Commerce Clause etc.

http://www.msnbc.msn.com/id/3096434/

Prof. Levinson likes to remind that the Constitution is not just for the courts. Good to look at the big picture here. A lot of looking at single trees, particularly just looking at a single provision w/o the proper context.

"Proper" indeed.

# posted by

Joe : 11:52 AM

Jon:

I do not accept your moral equivalence argument at all. You either follow the law as it is written or you do not.

Progressives have heavily criticized the Constituion for limiting government power and thus their ability to implement Pogressive policy for well over a century now.

Because the Constitution is difficult to amend, Progressive courts have Imposed a de facto common law masquerading as simple interpretation or more openly using phrases like living constitutionalism.

In this case, it is telling that Progressives do not criticize the conservatives for not following the CC as it is actually written, but instead offer past Court decisions and current strained theory to justify again ignoring the limits of the CC.

The conservatives are actually applying this erroneous precedent, but appear to be declining to complete the Progressive project of creating a common law general police power for Congress.

This is hardly to say that the so called conservatives are constantly faithful to the law. The awful Scalia decision in Gonzales is as bad an example of common law constitutionl jurisprudence as anything the Progressives have written over the past century. However, that is a ding on the hypocrisy of Scalia and not a reason to decline to enforce the CC this time around.

# posted by

Bart DePalma : 12:07 PM

Rather than trying to craft a hypothetical that pleases everybody (or anybody), perhaps it is worth noting that a federal court just struck down parts of the Wisconsin collective bargaining law (http://host.madison.com/wsj/news/local/govt-and-politics/federal-court-strikes-down-parts-of-collective-bargaining-law/article_562c581e-7a9f-11e1-9aea-0019bb2963f4.html)

I won't hold my breath waiting for Balkinization posts that condemn this outrageous judicial activism ignoring the democratic will of the people

# posted by

mls : 5:12 PM

"I won't hold my breath waiting for Balkinization posts that condemn this outrageous judicial activism ignoring the democratic will of the people."

Yes, particularly since merely because the result here -- notably not a single federal judge but SCOTUS -- is not being opposed by various posts merely because it is countermajoritarian.

It was not be "outrageous" to Balkin et. al. if the SC struck down a law that clearly violates the Constitution or even is a much closer call. They didn't even find Heller a problem really except as to what they deemed poor reasoning.

Finally, one major reason to allow "the democratic will of the people" not to be the end all is to protect equal protection and free speech, which is itself "democratic" in a big picture way. This opinion, rightly or wrongly, sees the legislature as wrongly targeting a group in a way that violates 1A principles.

# posted by

Joe : 5:54 PM

Well, of course, we do understand why supporters of the mandate would prefer that the mandate be treated as severable. Your preferred policy, not remotely possible to enact, was to abolish private health insurance in favor of government provision of health care. It's well understood that, without the mandate, the rest of Obamacare will drive the health insurance industry into bankruptcy in short order, an outcome sufficiently unpopular that the bill could not have been passed without the mandate to preserve the insurance industry's viability.

Striking down only the mandate, then, achieves an outcome you never remotely had the votes to get. While striking down the entire law restores the status quo ante, giving Congress another change to address the subject from scratch.

But you don't want Congress to return to the subject, because the election following the passage of Obamacare involved a lot of the measure's supporters being given the boot by voters who didn't like the bill, which means that nothing like Obamacare could, for reasons of democracy, be enacted again.

So, this is your last chance to win, and the Supreme court striking down only the mandate gives you a victory you could never get democratically.

But that's not a good reason for the Supreme court to rule that way. Congress knows quite well how to include a severability provision, and absent one, the presumption must be against severability, lest the Court cause outcomes the legislature would never democratically have produced.

Such as the one you so desperately want.

# posted by

Brett : 5:35 AM

Brett, regardless of the merits of severing community rating with the mandate, your proposed presumption of non-severability in the absence of a severability clause would reverse decades of precedent. Most recently, Roberts reaffirmed this precedent in the 2010 case Free Enterprise Fund (where the law in question had no severability clause).

# posted by

Jon : 6:46 AM

College basketball's "March Madness" will be over with its determination tomorrow night. However, "March Madness of Constitutional Law" remains to be determined sometime in June, despite - or because - nine (9) unelected "umpires" making the determination. We don't know last Friday's tentative vote by the "umpires." But I've got a feeling there may be some pillow talk or other leakage that just might provide valuable information for valuable insider trading.

# posted by

Shag from Brookline : 7:01 AM

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# posted by

Joe : 10:20 AM

"It's well understood that, without the mandate, the rest of Obamacare will drive the health insurance industry into bankruptcy in short order"

There is actually debate particularly the "short order" business, the lower court disagreed that the minimum insurance requirement alone could not be severable, it actually is not the rule (see Jon) that no severability provision means the law is tossed, someone actually was appointed to defend doing what the 11th Cir. decided & experts defended the move as well.

Let's move past "desperation" and note that chunks of the law is popular. The Senate is still controlled by the Democrats. Obama is still President. And, mid-term elections usually lead to changing of alignment, and there were various reasons, particularly the economy, why Republicans gained.

We are repeatedly told that if Congress simply said "tax" it would be okay but they were too chicken. Great. Now they would get to decide. Either toss out lots of stuff the public likes or fix the so call problem.

Since Republicans are "desperate" not to do that, they want the courts to for "imaginary" reasons toss out the whole law. Jon notes this will overturn years of precedents, including those just handed down by Roberts.

# posted by

Joe : 10:26 AM

ACA SPECULATION?

Let’s assume that few, if any, of the Justices (or their clerks) have read through substantively the 2,700 dense pages of ACA or the less dense approximately 5,000 pages of briefs filed for the ACA appeals. But can we safely assume that the Justices have similarly ignored reports in major newspapers/magazines and legal blogs?

I don’t know if broccoli was mentioned in any of the briefs filed, but both newspapers/magazines and legal blogs have commented extensively on broccoli and ACA. And Justice Scalia brought in broccoli during orals last week. (Chief Roberts came up with cell phones and other Justices cars.) Perhaps some will review the orals transcripts to connect dots between questions/issues raised by Justices at orals and such previous discussions.

Meantime, at various legal blogs post-orals many posters, commentators and commenters have been patting themselves on their backs suggesting they may have influenced some of the Justices’ questions/issues raised during orals. Perhaps greater breast-beating will be heard after the Court decides. Of course, skeptics will check the decision, opinions concurring and dissenting to see if indeed their amici briefs, blogs, etc, were cited.

A lot can happen in the approximately six (6) weeks before the decision comes down. Presumably the Justices will consider outcomes of the decision. Consider Brown v. Board of Education. Following original arguments in 1952, the matter was placed on sort of a hold. Meantime, Earl Warren was appointed Chief Justice by Ike in 1953, and the end result in early 1954 was a unanimous decision. It has been reported that pre-Warren the Court in discussions was far from unanimous.

While the ACA appeals most likely will not involve the entrance of a new Justice as in Brown, the pressures on the Justices will be greater than back then because the ACA appeal issues have been much more communicated to the public at large over a two-year period unlike the situation with Brown in 1952 and the unanimous decision in 1954.

The Justices have to be greatly concerned with not only the legacy of the Roberts Court but of each member. How might history look back at, e.g., broccoli, if referenced in the decision/opinions? Might comparisons be made of the Roberts Court with the pre-New Deal Court? Most of all, how might history look back at the treatment of healthcare issues in America as compared to other highly industrialized democracies?

Perhaps if the Court rejects ACA substantially and a Republican is elected President this November, there just might follow a “Nixon/China” moment resulting in a single payer system of healthcare, which would constitute political irony since ACA was enacted with Democrats in power as an alternative to progressives’ desired single payer system that would have been then politically dead on arrival. But of course, being accomplished by Republicans, this would not be socialism.

# posted by

Shag from Brookline : 11:50 AM

"Let's move past "desperation" and note that chunks of the law is popular."

It's understood that any multi-thousand page bill is going to have some popular features. I really like steak, too; Why is it that I don't eat it every week?

Because whether or not something is popular apart from the cost is basically irrelevant.

# posted by

Brett : 2:59 PM

Brett selectively answers me again.

To address the one point, we repeatedly hear that "the law" is unpopular. Brett assumes for argument "some" is popular but that the problem is the "cost." That's something, I guess.

Still, I thought the problem we were addressing here was one aspect of the law was unconstitutional. Not because of "the cost." No. If we used magic words (this sounds a bit sarcastic, but honestly, that is what it amounts to, since it looks and acts like a tax; many explained this already), the exact same "cost" would be okay.

If "cost" was a problem, people would accept that getting the stuff they want (and other than the minimum coverage position, what exactly is UNPOPULAR about the law? A law has an unpopular aspect, helped by misunderstanding and not wanting to do some heavy lifting to lose that weight -- this is totally unsurprising) requires other things.

On net, this law costs less than the alternative while helping millions of people get more health care. The Democrats are the party lately with "pay as we go" strategies, if imperfectly, as all things in government are.

What realistic alternatives to deal with the costs (note the real title of the law) of health care was provided by the other side? Bueller? Bueller?

# posted by

Joe : 4:42 PM

And, by "alternative," I don't mean the "pony" ideal, libertarian, progressive or otherwise put out there, but what realistically could pass in the real world that we live in.

# posted by

Joe : 4:44 PM

The only parts of Obamacare that poll well are those where the government is promising something with no price tag attached. When you poll with a question why most folks oppose Obamacare, it is the price.

As the earlier discussion over whether Obamacare is designed to cripple or kill off the private health insurance industry, insurer share prices have spiked since the Supremes suggested that they might kill off Obamacare in its entirety. No real surprise there.

http://www.theatlantic.com/business/archive/2012/03/wall-steet-thinks-it-knows-the-future-of-obamacare-why/255244/

# posted by

Bart DePalma : 4:56 PM

Bart, if their intent was to destroy the entire insurance industry, they would have passed a law that had two provisions only: guaranteed issue and community rating.

Those two provisions alone are wildly popular (even among two thirds of Republicans).

They were enacted in 7 states (including conservative states), without any other counteracting provisions. The insurance markets gradually collapsed in those states.

In Massachusetts, they were enacted along with a mandate and subsidies. 98% of the state is now insured.

So if their intent was really to destroy the insurance industry, there were much easier ways of doing so. In fact, striking down the whole bill might itself destroy the insurance industry in the long run. The broad structure of this bill (like Romneycare, or the healthcare system in Sweeden) is really the only way to maintain private insurance at all (without bankrupting the country).

If the bill is struck down, medical costs are going to continue to rise at multiple times the rate of inflation. And contrary to the magical borderline-religious thinking that the "free market" can stop that phenomenon (contrary to healthcare economists and every data point on the planet), government intervention will be required to stop it. Without Obamacare (or something like it), the choice will be to end Medicare or expand it. By attacking Obamacare, conservatives are really going "all in" on their view that the country will choose to end Medicare (rather than expanding it to all). In the medium/long term, that is likely going to be a decision that they will deeply regret.

# posted by

Jon : 11:10 PM

Our yodeler seems to like the idea of a truly free market health insurance industry, salivating with this:

"As the earlier discussion over whether Obamacare is designed to cripple or kill off the private health insurance industry, insurer share prices have spiked since the Supremes suggested that they might kill off Obamacare in its entirety. No real surprise there."

Our yodeler is not surprised. But imagine what the premiums would be - as well as the availability of such insurance for some - with such a truly free market. When the public becomes aware of eventual increases in premiums - or the unavailability of such insurance for some - if ACA is rejected, how might the public react - surprise? If that is the surprise in June, then the next 4+ months before November will inform voters of the outcomes of such rejection. Then who might be surprised?

# posted by

Shag from Brookline : 6:15 AM

"Bart, if their intent was to destroy the entire insurance industry, they would have passed a law that had two provisions only: guaranteed issue and community rating."

That's my point: If the Court strikes down the mandate, and only the mandate, they make this law into something Congress never intended.

And yet, if the mandate is unconstitutional, it must be struck down. Otherwise we're not a nation of laws.

This leaves only to choices: Go through 2700 pages of legislation members of Congress, who specialize in legislation, couldn't bring themselves to read, striking down line items, or strike down the entire thing.

Striking down the entire law is clearly the only reasonable option, if the Court is not to spend the next two to three years doing nothing but going through this bill one line at a time, rewriting it.

# posted by

Brett : 7:19 AM

Jon:

As I argue in my book Never Allow A Crisis To Go To Waste, Obamacare is a faithful application of German Zwangswirtshaft socialism where business is nominally left in private ownership, but the government affirmatively directs the business. And like all forms of socialism, Zwangswirtshaft is designed to destroy the economy, which it did twice in WWII and WWII Germany.

Team Obama may have actually believed Obamacare would work as designed, but then again most socialists believe in the efficacy of socialism even as their countries collapse around them.

# posted by

Bart DePalma : 8:11 AM

Here's Brett's "Magic Eight Ball" response to the ACA appeals:

"Striking down the entire law is clearly the only reasonable option, if the Court is not to spend the next two to three years doing nothing but going through this bill one line at a time, rewriting it."

Yes, strike down the law without reading it because it's too long. Brett seems to be adopting Herman Cain's view on statutes.

# posted by

Shag from Brookline : 8:16 AM

Once again our yodeler comes up with his socialism crapola, never letting an opportunity pass to self-promote his work of Friction. Our yodeler perhaps would eliminate socialism, if ACA is rejected, by rejecting Medicaid, Medicare, Social Security, etc, to take us back to the "good old days" pre-New Deal. But that Fast Shuffle won't work.

# posted by

Shag from Brookline : 8:24 AM

Sociial insurance is not socialism, rather it is a progressive alternative to socialism.

Chapter 10 of the book distinguishes progressivism and capitalism from the various types of socialism employed by the Obama administration.

# posted by

Bart DePalma : 9:47 AM

Brett again acts like only he knows what a "nation of laws" means.

Most others, including the Supreme Court, chunks of Congress, most of the people around here, etc. don't want that. They want to you know make you know what up.

Such hubris does lead to sarcasm. The bottom line is that Brett doesn't like how Congress, the Constitution as written etc. works and then pretends he is only trying to be an honest broker.

It would be a lot more believable if he simply noted that he didn't like how things worked and wanted to change it.

# posted by

Joe : 9:56 AM

Our yodeler''s cite:

" ... of the book ... "

displays misguided hubris and suggests his thinking that his background comments at this Blog and others over the years might be ignored by those who might deign to read "the book" and thus ignorant of his hatred of everything Obama since day one of his Presidency. Note the "cleverness" of our yodeler in referring to "social insurance," not Social Security, which over the years has been modified to include benefits to non-direct contributors. And our yodeler ignores the bait of Medicaid and Medicare as socialism that he might wish to rid us of. It seems to be the theme of "the book" that Obama the socialist brought socialism to America.

# posted by

Shag from Brookline : 10:27 AM

Shag:

Socialism is directing the economy to redistribute income. Obamacare is socialism, Meducare is not because Obamacare directs the health insurance market while Medicare simply offers a government insurance. Medicare would become socialism if it outlawed or took over the private insurance market.

# posted by

Bart DePalma : 10:44 AM

By our yodeler's logic, a single-payer system like Medicare for all would not be socialism. But Obamacare with its mandate was a less invasive governmental healthcare reform measure than progressives' preferred politically dead-on-arrival single-payer reform, with many right wingers calling the latter socialism. But our yodeler as spokesman for responsible right wingers provides the logic that the single-payer system would not be socialism. So why should the lesser invasive Obamacare be socialism?

[Note: during orals last week, Justice Kennedy suggested that a single-payer system should pass constitutional muster. I assume that Justice Kennedy is not a socialist.]

# posted by

Shag from Brookline : 11:50 AM

Brett: "This leaves only to choices: Go through 2700 pages of legislation members of Congress, who specialize in legislation, couldn't bring themselves to read, striking down line items, or strike down the entire thing."

GASP! THE HORROR! You are saying that if the Supreme Court is deciding whether or not to strike down 2700 pages of Congress' work -- the culmination of decades of study and attempts, and multiple elections -- it might actually have to READ the legislation before it strikes it down?

Are we seriously even arguing about this?

Even Clement was not making such an argument. Clement's argument was that the bill never would have passed without the mandate. Now, Scalia shot down that rationale (as a severability principle) within 5 minutes of the argument starting. (After all, that would justify striking down the 2700 pages if a single line irrelevant to the rest is Unconstitutional.) But even Clement did not have the gall to say that the justices should strike down the bill because they have the right to be lazy when destroying decades of work.

In fact, this whole "waaaaahhhhh, I don't want to read the bill before I light it on fire" argument sounds like a liberal parody of a made-up conservative severability argument. Not an actual conservative severability argument. Oh, wait...

# posted by

Jon : 1:54 PM

BD: Socialism is directing the economy to redistribute income. Obamacare is socialism, Meducare is not because Obamacare directs the health insurance market while Medicare simply offers a government insurance. Medicare would become socialism if it outlawed or took over the private insurance market.

Shag from Brookline said...By our yodeler's logic, a single-payer system like Medicare for all would not be socialism.

Reread bolded sentence of my post.

[Note: during orals last week, Justice Kennedy suggested that a single-payer system should pass constitutional muster. I assume that Justice Kennedy is not a socialist.]

I never assume anything concerning Kennedy, including that he will actually follow his own oral argument reasoning.

There is nothing in the Constitution which per se prohibits socialism and Congress could impose a general socialist Medicaid system under its taxing and spending power.

I don't attempt to rewrite the Constitution to eliminate policies I do not like, even when they would be massively harmful.

# posted by

Bart DePalma : 2:36 PM

If currently Medicare does not outlaw or take over the current private insurance market (and thus isn't socialism), how would an expansion of Medicare for all outlaw or take over the private insurance market?

# posted by

Shag from Brookline : 3:56 PM

Marty just gave a shot at defining a limiting principle for the Commerce Clause which would allow the individual mandate, but not say broccoli:

Limited Commerce Clause Holding:
Even assuming arguendo that Congress cannot require any and every purchase of goods or services under any circumstances (but cf. Judge Silberman's "regulate"-includes-"require" argument to the contrary in Seven-Sky), Congress does have the Commerce Clause authority to control the means and timing of payment for goods and services that persons will consume, particularly so as to assure that the consumers do in fact pay for the costs of such goods or services. Thus Congress can at a minimum require everyone either (i) to maintain insurance for goods or services that virtually everyone will consume, that the government guarantees, and that many of the consumers will not otherwise be able to pay for (which would thereby shift substantial costs to the public at large); or (ii) to make a modest payment to the government (IRS) to help cover the costs the public will incur if and when the individual consumes services for which she cannot pay.

This limiting principle bears no relationship to the Commerce Clause as written. To regulate commerce means to limit or discipline existing commerce, not to set the means and timing of payment of hypothetical future commerce.

Even under its own terms, this limiting principle cannot be applied to health insurance.

Under the insurance model, the healthy majority pay to treat the small ill minority. The vast majority of insured will never require even a small fraction of what health insurance covers. This is even more true concerning the Obamacare comprehensive health insurance mandates. Thus, health insurance by design does not cover "goods or services that virtually everyone will consume."

Moreover, the health care most folks consume is non-catastrophic and is affordable.

Finally, the individual mandate tax penalty is not an insurance premium going to provide coverage to the person who declined to buy Obamacare insurance.

# posted by

Bart DePalma : 4:20 PM

Take a peek at Ricardo Alonso-Zaldivar's AP article "Obama's insurance requirement not the only mandate" at:

http://www.ajc.com/news/nation-world/obamas-insurance-requirement

focusing primarily on Medicare. So I guess it hair-splitting time for the Justices. Some may end up in Brett's condition.

# posted by

Shag from Brookline : 4:24 PM

Shag from Brookline said...
If currently Medicare does not outlaw or take over the current private insurance market (and thus isn't socialism), how would an expansion of Medicare for all outlaw or take over the private insurance market?

Medicare for all would crowd out the private health insurance market by compelling you to pay money which would otherwise go to private health insurance to the government to pay for Medicare whether you want it or not.

We are getting increasingly close to this end result. Currently, half of all health insurance is provided by the government and Obamacare would massively expand Medicaid.

# posted by

Bart DePalma : 4:27 PM

Does our yodeler express the fear of right wingers that America might one day finally join the highly civilized industrial democracies with basic health care for all?

On a recent thread at this Blog on ACA, I referred to Rebecca Zietlow's "Democratic Constitutionalism and the Affordable Care Act" available at SSRN:

http://ssrn.com/abstract=2000924

While the entire article is worthwhile, take a peek at Section II.C. The Right to Health Care p.p. 13-22 for historical background/movement on health care. (The first page of the article provides a Table of Contents for those who might not have time to read the entire article.) There's no turning back the clock on health care.

# posted by

Shag from Brookline : 7:49 AM

Shag:

Join the "highly civilized" EU which is increasingly insolvent and destitute under the burden of its welfare state?

No thanks.

Progressivism and socialism have shown themselves unworkable and are entering their death throes.

The question facing Americans is whether we want to follow that path downward.

# posted by

Bart DePalma : 10:47 AM

Progressivism and socialism have shown themselves unworkable and are entering their death throes.

The question facing Americans is whether we want to follow that path downward.
# posted by Bart DePalma : 10:47 AM

I hate to point this out, but it was Cheney/Bush who drove our economy off a cliff, and they're not Progressives.

# posted by

Bartbuster : 12:07 PM

The record is so inconvenient for the right wing.

# posted by

jpk : 3:35 PM

Our yodeler's (rhetorical?) question:

"Join the 'highly civilized' EU which is increasingly insolvent and destitute under the burden of its welfare state?

brings to mind the fact that the economic theory of recovery in vogue in many parts of the EU is Hayek austerity, as opposed to Keynesian stimulus. Fortunately, America has not gone the Paul Ryan (Hayek) austerity route, although more stimulus would aid and speed up the recovery underway as long noted by Paul Krugman, a Nobel Prize winner in economics. For our yodeler's expertise in economics, see his comments in a more recent thread on a post by Gerard (on Gerard's claim that Obama should not have spoken up recently concerning the ACA being constitutional as perhaps offending the Court following orals). How consistent is our yodeler's economics? You decide.

# posted by

Shag from Brookline : 4:06 PM

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