Scalia’s Not-So-Secret Plan for World Domination


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!


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There are 11 comments for this post

  1. avatar Wouldchuk says:

    Scalia and our protector Justices, Santorum, Paul Ryan, Marco Rubio, and Mitt Romney are ALL focused on saving this country. There is no way at all for the government to pay everything for everyone, that’s the problem in Europe now. Just like Santorum said, it’s these liberal snobs who go to college who are leading us to destruction. Now we crush Obamacare, nest its Social Security, Medicare and Medicaid. The future will be simple, “No cash, no credit card, no insurance NO FREELOADER SERVICE at hospital ER’s. If you can’t afford it you don’t deserve it–THIS is America, the brave and the free!!

    • avatar chrisfinnie says:

      You work for The Onion, right? Please, please tell me you’re joking.

      If not, you might notice that the countries in Europe with the highest taxes, best social safety nets, and most regulation of workers’ rights are also the countries that are NOT in financial trouble. Which leads me to believe we’re simply paying for the wrong things.

      Corporate welfare and the Pentagon would be high on my list of things we can’t afford to keep paying for.

      Social Security and Medicare–which I’ve paid into for 45 years and damn well better get back what I’m entitled to–are not. I’ll bet a lot of people are in the same boat and feel the same.

  2. avatar Bruzzone says:

    While the first half of this was irritating as one of the car alarms that goes off in the middle of the night, you made sense in the end. But I appreciated this..

    “Obama has only himself to blame for the court’s attack on his signature health care legislation. The individual mandate…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.”

    Now doesn’t that summarize nicely the gridlock both in Sacramento and D.C.

    The failure was not the bill, but the process. How can we forget an obnoxious Speaker Pelosi urging the bill’s passage, “so we can find out what’s in the bill.” Not one Republican voted for it. There was no consensus. Now we’re finding out what’s in the bill, Ms. Pelosi. So is the SCOTUS. Which is why your observations, at the end of this piece, are cogent.

    • avatar chrisfinnie says:

      I can only assume you’ve never met former Speaker Pelosi. I have, and she’s far from obnoxious.

      Plus you seem to have missed the most important point in the text you quoted. Obama’s failure was that he didn’t realize he was compromising with people whose only goal was to destroy his presidency. The Republicans didn’t care about getting a better bill. Or about consensus, for that matter. Nor about how many ordinary citizens they hurt in the process. They only cared about getting the darkey out of the White House. Now I find that obnoxious.

  3. avatar tonyseton says:

    Increasingly it feels to me like the bus has gone over the cliff. Our government is chosen on the basis of campaign funding. Our news has become media. Our people are dangerously ignorant. Said Thomas Jefferson, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”

  4. avatar al_irish says:

    Here’s an easy solution: You have the right not to buy health insurance. That’s fine. However, if you should get ill, get injured, or in any way require medical attention, the health care system (i.e., doctors, nurses, paramedics, hospitals, etc.) are NOT required to treat you, and cannot be sued by anyone for such failure to treat you. You have the right to go sit in the corner and die all by yourself. Problem solved.

  5. avatar Ernie Konnyu says:

    OK Libs. Stop the phony right wing plot talk on SCOTUS. And stop pretending that overstretching the commerce clause or neglecting the 15th Amendment Federal constitutional limits is just a right wing nut job by SCOTUS.

    The Constitution is real and it has been used to limit or create laws for over two centuries, as any study of Constitutional case law affirms. If Obamacare is declared unconstitutional you will have to “eat it” just like we had to endure Roe et. al.. That’s life in the American constitutional lane.

    • avatar chrisfinnie says:

      Good point. Since the GOP has never stopped trying to overturn Roe et al by any means possible–even by regulating the width of hallways at abortion clinics–Democrats don’t have to give up on healthcare reform. We can just keep introducing one bill after another, forcing those poor legislators and judges into the onerous task of READING (horrified gasp here) and voting.

      Thanks for the tip Ernie!

    • avatar Donald from Pasadena says:

      Ah, I get it! It’s simply payback for Roe v. Wade! Thanks, Ernie. If I can count on you for one thing, it’s your uncanny ability to always fail to see the forest for the trees.

      I’m a 51-year-old, 3-time cancer survivor who has had his health insurance canceled three times, simply because I inconveniently got a malignancy and actually had to use it. Thanks to the ACA, flawed as it is, insurance carriers were no longer allowed to do that to me. But alas, they’ll be able to do it again, if it’s struck down as partisan payback.

      You best understand one thing: If the ACA is struck down by SCOTUS on a partisan basis, you Republicans will OWN this.
      And I, for one, will work very hard to ensure that all of you will collectively pay for your chicanery. Through your own actions, you’ve proven yourselves inherently untrustworthy on almost any substantive issue of note.

      You guys are really nothing more than the political equivalent of a Ringling Bros. clown car, hopelessly embarked upon a relentless search for the next Barnum & Bailey. Most people would be ashamed of themselves for behaving in this manner, but then, you guys have never been ones to embarrass easily.

  6. avatar sqrjn says:

    I can’t believe you guys missed the truly newsworthy section of the third day of oral arguments where J. Scalia riffing on jack Benny of all people says “your money or your life and you know he says “I’m thinking im thinking” it’s funny because it’s no choice. … Now whereas if the choice were your life or your wife’s, that’s a lot harder.” hilarious even though his intent was chivalrous it sure didn’t sound like it.

  7. avatar tegrat says:

    There will be an upside to the SCOTUS’ derailment of Obamacare. All pretense of support from us libs will no longer be necessary, and the push for single-payer can once again be engaged full-heartedly. As you accurately point out, Obama made some very poor decisions, but let’s be honest, he was guided by people who don’t necessarily support the people’s interests. The bill was essentially written by a former VP of the largest private insurer in the country (and no, it wasn’t that tattle-tale Wendell Potter), what did we expect?

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