Ray of hope?

In my heart of hearts, I’m convinced that the cabal that came up with Bush v. Gore, Citizens United, and the ruling that requiring someone to pay for a document in order to be allowed to vote doesn’t constitute a poll tax will figure out a way to screw up a hugely redistributive piece of health care legislation that also happens to be the signature achievement of the man they most hate.

Still, the ill-tempered and intemperate) outbursts from Alito about juvenile LWOP and (especially) Scalia about immigration make me wonder. If their side had won a huge victory - if they were about to overturn Obamacare - wouldn’t you expect them to be on their best behavior, and disinclined to reveal the full extent of their partisan hackery?

On the other hand, if Kennedy or maybe even Roberts decided that killing ACA was a bridge too far, it would be perfectly understandable if that put the extreme reactionaries in a pissy mood.

I offer no prediction. But I’m not in total despair. I’ll leave that for tomorrow.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

41 thoughts on “Ray of hope?”

  1. The Supremes now being an offical organ of the GOP, should see no reason to be embarrassed to exhibit flagrant partisan hackery. The rest of the guys are doing it with no apparent down side so let the freak flags fly.

  2. I think it was Dahlia Lithwick who weeks ago predicted that they’d uphold ACA, including the mandate. Her reasoning was that Roberts didn’t want to draw fire and attention on this one so he’d vote for ACA so that he could get to work on the agenda items that are his own big issues.

  3. McDonnell finessed the ‘poll tax’ argument: “new polling place identification requirements into law Friday and, along with it, ordered the State Board of Elections to send new voter ID cards to every registered Virginia voter. The requirements were updated by the Republican General Assembly this year and decried by Democrats and minorities as a voter suppression effort.” Seems reasonable to me.

  6. I’ll put myself on the record.
    Kennedy is 50:50. His libertarianism conflicts with his small-c conservatism. He could go either way.
    Roberts is also 50:50. He is a Movement conservative, but he is obsessed with the legitimacy of the Court. He’s also smart enough to know that a splashy affirmance vote would buy him a lot of space for advancing Movement goals in the future. He, too, could go either way.
    Add to this the one thing that everybody agrees on: Roberts will not be on the losing side of a 5-4 decision.

    This adds up to a 50% chance of 6-3 to affirm the statute; a 25% chance of 5-4 to affirm written by Roberts; a 25% chance of a reversal. (By “affirm”; I mean 100% affirmance, mandate and all.)

  7. We’ll know shortly. But I noticed the same thing. People who have won a big victory are usually jovial and relaxed, and don’t throw angry hissy fits about smaller defeats. At least, I think people with a normal sense of proportion act that way. But who knows with these guys. I don’t have a sense of Alito yet. Thomas feels to me like someone with a deep sense of grievance and injury (and not just from his confirmation hearings). Scalia seems to me to have a burning need for everyone see that he’s the smartest guy in the room, which is a little weird for someone of his age and with his accomplishments.

  8. Scalia’s tenure as a justice coincides pretty much with my tenure as a lawyer, and as I have followed the Supreme Court professionally, I have seen his reasoning really degrade. His opinions were always what I would call conclusory — a guy so convinced he is right he doesn’t even realize how unpersuasive his opinions are and he almost never really tries to deconstruct the other side’s reasoning. I am not talking about hot button issues, just even normal workaday Supreme Court cases, and that’s even when I agree with the outcome. He has long had some pet peeves that will pop up in his decisions — like his utter contempt for using legislative history in any way to determine congressional intent (he probably overdoes it, but it’s fair to say that an awful lot of legislative history is — how shall I say — bought and paid for).

    So with all that, he has clearly let slip his professional demeanor in this term. The Arizona dissent was ugly, bordering on ethnic slurs and cultural panic. Maybe he has had personal setbacks, health issues, or just started going through the aging process that for some people includes diminished editorial function (says too much of what he is really thinking).

  9. Kleiman does a good job of reading the emotional tea leaves.
    Although for all that this is tinted a bit timid: I offer no prediction.

    Huh? Crystal ball gazing is fun. Some seem to have a talent for it.
    David Brin is trying to sort out the winners:

    I’ve long pushed for better ways to track those in society who seek credibility, influence or power by bandying confident forecasts about future events. Now see Hubdub.com, a site that tries to generate a lot of fun while encouraging folks to stick their necks out, betting on matters like the VP sweepstakes or the Dow Jones or potential Olympic flag bearers, with credibility scores rising or falling with outcomes.

    Along the lines of Kleiman’s analysis of pissy temperaments, I offer a hissy counterexample:
    Williard’s baloney of a few days ago that if ACA goes down in completely invalidates Obama’s presidency.
    You don’t suppose Williard never traded on insider knowledge before do you? Bet your beach house on it that he has.

    All that being said, I noticed Robert Reich came in the other day on 6-3 in support of it.
    That was the same as my prediction made on April 23 rd.

    Bring it on.

    1. In which Justice Wimberley concurred. Turns out we were right on Roberts and wrong on Kennedy.

    1. Congratulations, majority of the Supremes…..you can retire knowing you did ONE thing right in your lives.

      1. Not so. Roberts upheld the legislation, but did as much damage to the Constitution as he could in the process, at least from what I get in SCOTUSblog. The mandate was stricken under the commerce clause, but upheld as a tax. (Wickard v. Fillburn is in danger.) The court has also, for the first time ever, imposed limits on the Federal government’s use of the power of the purse to bribe state governments into adopting federal policies. (The Court has long ago said that such limits exist, but has never found them.)

        2. I honestly have no problem with limiting the Federal government’s power to financially direct state governments, because I also see that as an end run around the vertical separation of powers that federal systems of government have. See the “National Minimum Drinking Age Act” (I don’t have a problem with the content of the act, but I do have a problem with how it blackmailed state governments into cooperation).

          1. Katja: I am not a Constitutional expert or even a novice. Only observation that be relevant as future cases of this sort go forward about this is that the drinking age act concerned 100% federal funds for highways, but Medicaid is co-funded by States and the Fed.

          2. Also in no way a lawyer, but so far as I know the Nationwide Drinking Age isn’t a regulatory fiat or a regulation of interstate commerce, it’s a matter of eligibility to receive federal funds.

          3. Keith: I’m not trying to make an argument whether that’s the correct reading of the constitution in this particular case. I’m just saying that limiting the federal government’s power to coerce the states is not a particularly conservative thing. Note that Breyer and Kagan agreed with Roberts, making this part of the decision essentially 7:2. Note also that the German Constitutional Court, far to the left of modern American conservatives, made a similar argument from first principles [1] in 1975 (“a federal system must ensure that financial aid from the federal budget to the states remains the exception and that such grants are regulated in such a way that they do not become a means for influencing the decision-making autonomy of the states when fulfilling their duties”).

            [1] I know that the German constitution is irrelevant for American law, of course. The point that I am trying to make is that limiting the federal government’s financial influence on the states (in the worst case, bribing or blackmailing them into compliance) is not a particularly movement-conservative characteristic and something that many moderate conservatives, centrists, and progressives agree with as well.

          4. Katja,
            I agree with your principles, but am not sure about the implications of these principles. What Roberts is doing is well within the structure of the Constitution and was always contemplated by existing case law. But it is still unprecedented, and certainly will gladden the wingnut hearts.
            The problem is one of line-drawing. When does the prospect of withheld goodies cease to become mere bargaining and shades into coercion? Contract law has an answer: “almost never.” (Patent and antitrust law modified this a tad.) Constitutional law had pretty much followed contract law until now. Contract law does this for two reasons: 1.) an exaggerated (IMO) respect for individual autonomy and 2.) an acute awareness that the criteria for coercion are vague as hell, once you exclude force and fraud.
            Now that this Rubicon has been crossed, expect wingnut courts to find coercion all the time.

          5. Ebenezer,

            I agree that this may very likely be a problem going forward, but the root problem here is (in my opinion) not the decision, but the dysfunctionality of the Roberts court (which, I think, is the result of a politically divided government and a politically divided electorate).

  11. Great news.

    In the spirit of Scalia, of course the next question is, what the fucking fuck was Kennedy “thinking”?

    1. He wasn’t? I hate tea leaves, but it is just possible that Roberts joined majority because Kennedy et al. were so unyielding. To repeal the entire law would basically make the Supreme Court into an unelected nine person legislature. It’s just so out there as to be truly frightening that any of them could go there.

      Also, one problem for anyone with any intellectual integrity is that if you say the mandate is not a necessary and proper excercise of authority connected to the interstate regulation of health care as commerce, how do you then turn around and say it is so integral to the congressional scheme that was enacted that the rest of the ACA cannot be severed from the mandate?

      I know that everyone thinks it was all politics all the time, including me, but on the assumption that even some Republican judges or justices don’t want to reenact Bush v. Gore ever 10 years or so, you have to play out where the decision would take you. In this case, it would take you straight to a virtually unimpeachable case for single payer as the only practical way to enact health care reform. If my supposition is correct, that Roberts is first and foremost a corporatist (pretty good assumption I would say based on all available prior evidence), he must have realized both the legal/constitutional as well as the practical effect problems that would be associated with ditching all or most of the ACA’s reform provisions. So sayeth me.

      1. “… to play out where the decision would take you … straight to a virtually unimpeachable case for single payer …”

        That’s my guess as to Roberts’ motivation. Let’s remember that PPACA derives from “HeritageCare” — the corporate-friendly fire-wall against anything like genuinely socialized medicine. Rather than indulge in the immediate feel-good wing-nut tantrum of striking down “Obamacare”, Roberts stood up for the long-range strategy: enshrine the health-insurance oligopoly in law.

        Mission Accomplished.

  12. The country just dodged a bullet. From SCOTUS Blog: In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

    1. I disagree. Roberts is playing the long game, and his Movement conservative friends will understand this. See my posts above.

      1. ALL: I accidentally deleted the last half of my comment above, but what Ebenezer is disagreeing with is my expectation that Roberts will be disowned by people who loved him as of yesterday.

      2. Eb, you are undoubtedly correct about the Conservative Cognoscenti … The question is how much ability they have to control the massed ranks of a conservative base that has for a year been whipped up by declarations of the need to save their beloved country from an unconstitutional seizure of power. Those people are perfectly likely to take against Roberts here.

    1. Intrade is seldom wrong. It’s purpose is to express the collective opinion of assholes with money, and it does quite well at this. In this regard, it is neither better nor worse than most markets.
      Nor are people who quote Intrade generally wrong in doing so. They are typically more concerned about the collective opinion of assholes with money than they are about external reality, or the collective opinion of the rest of us.

      1. But doesn’t this at least mean that some of those assholes lost money today? Does this not show that when you put up your money and bet against external reality, you pay a price?

      2. Hmmm. Intrade as a progressive taxation mechanism: Lotto for rich wingnuts! I like it!!!

          1. Too true; people with Opinions and some money to invest in them buy an Intrade contract, while those with Opinions and serious money buy a politician, or a movement, especially after Citizens United.

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