On Monday, some wrong-headed opining in this space (we name no names, sqrjn) challenged the prescient wisdom of Dr. P.J. Hackenflack, who described the Supreme Court’s oral arguments over Obamacare in advance as a “deeply cynical…dog and pony show” staged by black-robed, right-wing “enablers of the Republican party.”
Not to put too fine a point on it.
Now that the three-day judicial ape dance is finished, however, the nakedly partisan motivations of the SCOTUS Scalia clique are once again confirmed for all the world to see (yeah, yeah, we’ll wait for the court’s formal decision, but meanwhile we’re busy checking out residency requirements to enroll in Canada’s single-payer system).
While our favorite conservative web sites overflow with predictable triumphalism, legal analysts less inclined to starboard-side shilling who closely followed the proceedings present a more reality-based portrayal of the high court majority as a kind of judicial theocracy. Determined to impose, on behalf of right-wing elites, an ideological agenda on the rest of us, the high court’s conservative cabal operates with three key principles:
1-Judicial activism. Forget Chief Justice John Roberts’ phony and pious assertion during his confirmation hearings that “judges are like umpires,” along with decades of endless conservative carping about “judges legislating from the bench.” Surprise, surprise, all their caterwauling was just a matter of what is being legislated on whom, as the ever-perceptive (Canadian!) legal writer Dahlia Lithwick demonstrated with her disheartening report on the food fight that passed for the third day of hearings:
Look carefully at what Justice Kennedy just said: Don’t want to impose new risks on the insurance companies. Check. Striking down all of the 2,700-page statute—much of which regulates breastfeeding, Native American health, black lung treatment, and other things unrelated to the individual mandate—that’s the new judicial restraint…
Again, like the day before, not much law happens this morning. It’s all mainly a sort of free-form ramble by the justices over the complexities of congressional lawmaking. Justice Scalia opines freely on how hard it will be to repeal the remainder of the Affordable Care Act if the court leaves some portion of it standing: “You can’t repeal the rest of the act because you’re not going to get 60 votes in the Senate to repeal the rest…”
The afternoon offers yet another opportunity for the court to forgo reading text and citing cases—the things they are meant to be good at—so they can have a good old-fashioned, foot-stomping policy debate about Bad Stuff the Federal Government Might Some Day Do. The theory that the states get such a great deal from the Medicaid expansion that they are “coerced” into participating was always deemed far-fetched. So much so that no lower court accepted the argument. But that didn’t stop the justices from having it briefed and argued, because, well, if the individual mandate can be struck down on the prospect that Congress may someday pass a broccoli mandate, the Medicaid expansion should surely be struck down on the likelihood that the secretary of Health and Human Services is like a gun-waving hostage taker forcing you to choose between “your money and your life.”
2-The political interests of the Republican Party. After Bush v. Gore and Citizens United, the partisan hackery of Scalia et al should no longer shock us. But still.
Both Northwestern University law professor Andrew Koppelman and Harvard Law professor (and former Reagan Solicitor General) Charles Fried make clear the eagerness with which the conservatives align themselves directly with Tea Party and other Republican politicians on even the most spurious issues:
Even the most preposterous arguments are magically elevated to respectability if they are arrayed against the (Affordable Health Care Act)…
Obama owns the healthcare bill, so anything that can gum up its works is a Republican victory – and all 26 of the state challengers, attorney generals and governors, are Republicans. But all those working poor people are not Democratic Party operatives. They are ordinary folk trying to get by. The decision to pursue this litigation displays a calculated viciousness and cruelty that we have not seen in American politics in some time. It is like getting back at my enemy by hurting his children or his pets.
3- Comfort the comfortable and afflict the afflicted. Far beyond the health care issue, as American University law professor Jamin Raskin reports, the current term docket is filled with other key cases that point to the probability the Roberts court will move to roll back decades of settled issues and legal precedent on behalf of corporations, entrenched special interests and the 1%.
The problem is that it is not a court committed to the rights of the people or to strong democracy unencumbered by corporate power. Indeed, it acts with most energy vindicating the rights of the powerful and the unjust. Alas, this hardly makes it an outlier in American history…
(The) Court’s ideological politics are in full swing these days as the 5-4 conservative majority fleshes out one-sided doctrines in areas from corporate political rights to corporate commercial speech rights to affirmative action to Congressional power to union rights. This is a Court that almost always chooses corporate power over democratic politics and popular freedoms. In a Court of logic and precedent, a Court without aversion to the channels of popular democracy, the challenge to Obamacare would be a total non-starter. But here we are again, waiting to see whether the Court will follow the path of justice or the path of power.
We’d never say “we told you so.” In the end, of course, Obama has only himself to blame for the court’s attack on his signature health care legislation.
The individual mandate, an erstwhile conservative framework for health insurance reform, represented his first and most spectacular naïve failure to find common ground with a party that was clear from the start about its desire and intention to destroy his presidency.
If he was determined to push for sweeping health care reform at the early point in his presidency when his popularity and influence were at their peak (why not, oh say, the economy instead?) the vast amount of political capital he squandered on the issue would have been far better spent fighting for a public option plan or simply to extend and expand Medicare, more elegant solutions more attuned to his base, with much less legal vulnerability.
In reluctantly backing the mandate legislation at the time as a half-loaf solution, we noted that:
The sad fact is that Barack Obama’s wimp-out on his signature issue has resulted in a legislative end game defined by a default bill in the Senate that’s god-awful. Riddled with half-measures, the bill is framed and defined by the institutionalized transfer of hundreds of billions of public dollars to the same, rapacious private insurance industry that shaped the dysfunctional system supposedly being transformed.
Even its worthwhile nods to reform – efforts to end the industry’s disgraceful practices on pre-existing conditions, rescissions and lifetime benefit caps – are largely dependent upon regulatory enforcement by the states, woefully over-matched by the legal firepower of insurance companies, as David Dayen argues most persuasively at Fire Dog Lake.
So now, Obama will be left holding the bag on weak, compromise legislation repellent to Democratic advocates on the left and Republican opponents on the right. Worse, a new NBC/Wall Street Journal poll shows that less than one-third of Americans say that the stinky cheese that Obama now supports as “reform” is a good idea – a number that has steadily eroded since he jettisoned his support for the public option. Worse, more people, by 44-41%, say it would be better to do nothing than to pass the measures before Congress.
Yes we can!